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PETITIONER:

RAKESH KUMAR

Vs.

RESPONDENT:

SUNIL KUMAR

DATE OF JUDGMENT: 09/02/1999

BENCH:

M.Srinivasan, U.C.Banerjee

JUDGMENT:

DR.A.S. ANAND, CJI

This appeal, under Section 116A of the Representation

of People Act, 1951 (hereinafter the Act), is directed

against the judgment and order of the High Court of Punjab

and Haryana dated November 5, 1997. By the impugned

judgment a learned Single Judge of the High Court allowed

Election Petition No.3 of 1997 filed by the respondent

herein and set aside the election of the appellant herein,

the returned candidate, from 57, North Ludhiana Assembly

Constituency of the Punjab Vidhan Sabha. The Election

Commission of India notified the holding of elections to the

Punjab Vidhan Sabha. The election programme for 57, North

Ludhiana Assembly Constituency was fixed as under : Last

date of filing of nomination -20-1-1997 Scrutiny of

nominations -21-1-1997 Last date for withdrawal of

candidate/ -23-1-1997 candidature Date of polling - 6-2-1997

Counting of the ballots -8-2-1997

The Election Commission of India, however, re-

scheduled the programme, as 23rd January, 1997 was declared

as a National Holiday. The re-scheduled programme was as

follows:- Last date for withdrawal of candidate/ -24-1-1997

candidature Date of polling - 7-2-1997 Counting of the

ballots -9-2-1997

The appellant contested the election as a candidate of

the Indian National Congress (Congress-I). Respondent,

Sunil Kumar filed his nomination paper for contesting the

election as a candidate of Bhartiya Janata Party

(hereinafter BJP). Vir Abhimanyu also filed his

nomination paper as a candidate set up by BJP while Harish

Kumar filed his nomination paper as a substitute candidate

of BJP. According to the case set up by respondent in his

Election Petition he had submitted his nomination paper on

20th January, 1997 at 12.10 p.m. as a candidate set up by

BJP and along with the nomination paper he had also

submitted Forms A and B as envisaged by paras 13(c) and

13(d) of the Election Symbols (Reservation and Allotment)

Order, 1968 (hereinafter Election Symbols Order). Forms A

and B had been signed by Shri L.K. Advani, President of the

BJP and Shri Balramji Dass Tandon, President of Punjab State

BJP, who had been authorised by BJP to intimate the names of

the candidates set up by the party to the returning officer.

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Shri Vir Abhimanyu also filed his nomination paper as a BJP

candidate on 20th January, 1997 at 12.50 p.m. supported by

Forms A and B also duly signed by Shri L.K. Advani and Shri

Balramji Dass Tandon, who had been authorised by BJP to

intimate the names of the candidates set up by BJP to the

Returning Officer. Shri Harish Kumar had similarly filed

his nomination paper on the same day as a substitute

candidate of the BJP. On 21st of January, 1997 when the

nomination papers came up for scrutiny before the Returning

Officer, a suo motu objection was raised by the Returning

Officer to the effect that BJP had set up more than one

candidate in the election and, therefore, none could be

treated as a candidate set up by a recognised political

party BJP. He, therefore, rejected the nomination papers

of respondent, Sunil Kumar as well as Vir Abhimanyu and

Harish Kumar, in spite of the fact that respondent Shri

Sunil Kumar had made an application, at the time of the

scrutiny, stating that he was the official BJP candidate and

requesting that his nomination paper be accepted and the

symbol reserved for BJP be allotted to him. He requested

for 24 hours time to produce an official confirmation of his

candidature. Aggrieved by the rejection of his nomination

paper, the respondent filed a Civil Writ Petition in the

High Court challenging the order of the Returning Officer

dated 21st of January, 1997. The Writ Petition was,

however, dismissed on the ground that the remedy available

to the writ petitioner was to file an Election Petition, if

so advised. On the last date of withdrawal of the

candidature, the appellant and 9 other candidates remained

in the fray. After the polling, the counting of ballots

took place on 9th of February, 1997 and the appellant was

declared elected having secured 33614 votes. After the

declaration of the result of the election, the respondent

filed an Election Petition (No. 3 of 1997) challenging the

election of the returned candidate on the ground that his

nomination paper as well as those of S/Shri Vir Abhimanyu

and Harish Kumar had been wrongly and illegally rejected.

It was alleged by the respondent that the Returning Officer

had wrongly rejected his application, filed under Section

36(5) of the Act, seeking an opportunity to meet the

objection raised by the Returning Officer. The Election

Petition was contested and the appellant resisted the same

asserting that the nomination papers of the respondent as

well as of S/Shri Vir Abhimanyu and Harish Kumar had been

rightly rejected for non-compliance with the mandatory

provisions of Section 33(1) of the Act as amended by Act

No.21 of 1996. It was maintained that since no intimation

had been given to the Returning Officer till 3.00 p.m. on

the date of the scrutiny about the official candidate by

BJP, the Returning Officer was justified in rejecting their

nomination papers. From the pleadings of the parties,

following issues were raised: 1. Whether the order of

rejection of nomination papers filed by the petitioner Sunil

Kumar was illegal and improper, if so, its effect? OPP 2.

Whether the order of rejection of nomination paper filed by

Shri Vir Abhimanyu was illegal and improper, if so, its

effect? OPP 3. Whether the order of rejection of

nomination paper filed by Shri Harish Kumar was illegal and

improper, if so, its effect? OPP 4. Relief.

At the request of the parties, the record including

the nomination papers and the material relating to the

rejection of the nomination papers was summoned from the

District Election Commissioner and on receipt of the same,

learned counsel for the parties stated before the learned

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Single Judge that no other evidence was required to be led.

They addressed their arguments on the issues on the basis of

the summoned record. Placing reliance on Section 36(5) of

the Act, the learned Single Judge decided issues 1 to 3 in

favour of the election petitioner (respondent herein) and

held that the Returning Officer fell into a grave error by

declining to give time to the election petitioner to meet

the objection raised by him suo motu and as such the order

of rejection of nomination paper filed by the election

petitioner Shri Sunil Kumar was illegal and improper. It

was also found that the rejection of nomination papers of

S/Shri Vir Abhimanyu and Harish Kumar were also illegal and

improper. As a result of the findings on issue Nos.1 to 3,

issue No.4 was decided in favour of the election petitioner

and the Election Petition was allowed and election of the

appellant was set aside. Aggrieved by the order of the

learned Single Judge, the returned candidate has filed this

statutory appeal. We have heard Mr. P.S. Mishra, learned

senior counsel appearing for the appellant and Mr. S.P.

Jain learned counsel appearing for the respondent and

examined the record. The controversy in this appeal lies in

a rather narrow compass. It revolves around the ambit and

scope of Section 36(5) of the Act as well as the effect of

the amendment of Section 33(1) of the Act, as amended in

1996, read with Rule 13 of the Election Symbols Order, on

Section 36(5) of the Act. It is, therefore, appropriate to

extract the relevant provisions of the Act and the election

symbols order at the first instance. Section 33(1) after

the amendment in 1996 reads as follows : 33 Presentation

of nomination paper and requirements for a valid nomination.

(i) On or before the date appointed under Clause (a) of

Section 30 each candidate shall, either in person or by his

proposer, between the hours of eleven oclock in the

forenoon and three oclock in the afternoon, delivered to

the Returning Officer at the place specified in this behalf

in the notice issued under Section 31 a nomination paper

completed in the prescribed from and signed by the candidate

and by an elector of the constituency as proposer :

Provided that a candidate not set up by a recognised

political party, shall not be deemed to be duly nominated

for election from a constituency unless the nomination paper

is subscribed by ten proposers being electors of the

constituency : Provided further that no nomination paper

shall be delivered to the returning officer on a day which

is public holiday: Provided also that in the case of a

local authorities constituency, graduates constituency or

teachers constituency, the reference to an elector of the

constituency as proposer shall be construed as a reference

of ten per cent of the electors of the constituency or ten

such electors, whichever is less, as proposers.

Relevant provisions of Section 36 of the Act provide :

36. Scrutiny of nominations. (1) On the date fixed for

the scrutiny of the nominations under Section 30, the

candidates, their election agents, one proposer of each

candidate, and one other person duly authorised in writing

by each candidate, but no other person, may attend at such

time and place as the Returning Officer may appoint; and

the returning officer shall give them all reasonable

facilities for examining the nomination papers of all

candidates which have been delivered within the time and in

the manner laid down in Section 33. xxx xxx xxx (5) The

returning officer shall hold the secrutiny on the date

appointed in this behalf under clause (b) of Section 30 and

shall not allow any adjournment of the proceedings except

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when such proceedings are interrupted or obstructed by riot

or open violence or by causes beyond his control. Provided

that in case (an objection is raised by the returning

officer or is made by any other person) the candidate

concerned may be allowed time to rebut it not later than the

next day but one following the date fixed for scrutiny, and

the returning officer shall record his decision on the date

to which the proceedings have been adjourned. (6) The

returning officer shall endorse on each nomination paper his

decision accepting or rejecting the same and, if the

nomination paper is rejected, shall record in rejection.

writing a brief statement of his reasons for such xx xxxxxxx

(8) Immediately after all the nomination papers have been

scrutinised and decisions accepting or rejecting the same

have been recorded, the returning officer shall prepare a

list of validly nominated candidates, that is to say,

candidates whose nominations have been found valid, and

affix it to his notice board.

The Rule 13 of the Election Symbols Order reads :

13. When a candidate shall be deemed to be set up by a

political party For the purposes of this Order, a

candidate shall be deemed to be set up by a political party

if, and only if, (a) the candidate has made a declaration

to that effect in his nomination paper; (b) a notice in

writing to that effect has, not later than 3.00 p.m. on the

last date for making nominations, been delivered to the

Returning Officer of the constituency and the Chief

Electoral Officer of the State; (c) the said notice is

signed by the President, the Secretary or any other office

bearer of the party and the President, Secretary or such

other office bearer is authorised by the party to send such

notice; and (d) the name and specimen signature of such

authorised person are communicated to the Returning Officer

of the constituency and to the Chief Electoral Officer of

the State, not later than 3.00 p.m. on the last date for

making nominations.

A conjoint reading of the aforesaid provisions inter

alia shows that after the amendment of Section 33(1) of the

Act, a nomination paper of a candidate in order to be valid

must be : (i) where the candidate is set up by a political

party: (a) signed by the candidate and a proposer;

(b) contain a declaration by the candidate to the

effect that he has been set up by a recognised political

party;

(c) be supported by a notice (Forms A & B) duly signed

by the President, Secretary or any other office bearer of

the party duly authorised by the party to send such a

notice; and

(d) the name and specimen signatures of such an

authorised person are communicated to the Returning Officer

of the constituency and to the Chief Electoral Officer of

the State, not later than 3.00 P.M. on the last date for

making nominations; (ii) where the candidate is not set up

by a recognised political party, his nomination paper shall

be valid only if it is subscribed by ten proposers, being

electors of the constituency. (In view of the limited

nature of controversy in this case, we are not referring to

the other requirements of a valid nomination paper) That in

the instant case, the respondent had filed his nomination

paper signed by one proposer only is an admitted case. It

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is also not disputed that the respondent had made a

declaration in the nomination paper to the effect that he

had been set up by BJP and that the notice in Form A & B

delivered to the Returning Officer within the prescribed

time was signed by the authorised officers of BJP Shri

L.K. Advani, President and Shri Balramji Das Tandon,

President of State unit of BJP. During the scrutiny, it had

transpired that Shri Vir Abhimanyu had also filed his

nomination paper as a candidate set up by BJP and his

nomination paper was also supported by a notice duly signed

by Shri L.K. Advani and Shri Balramji Das Tandon. Indeed,

there could not be two official candidates set up by a

recognised political party, since, the official reserved

symbol of BJP could be allotted to only one official

candidate. The respondent claimed before the returning

officer that he was the official candidate of BJP. No one

present at the time of scrutiny of nomination papers on

behalf of various candidates including Shri Vir Abhimanyu

appears to have raised any objection to the respondents

claim of being the official candidate of BJP. The Returning

Officer, however, had suo motu, raised an objection

regarding the validity of the nomination paper of the

respondent on the ground that BJP had set up more than one

candidate from the same constituency. To meet the objection

raised by the Returning Officer, respondent, Shri Sunil

Kumar, at the time of scrutiny itself, submitted the

following written application to the Returning Officer :

Ludhiana 21.1.1997 The Returning Officer, 57, Ludhiana

North, Ludhiana.

Sub : Scrutiny of Nomination paper. Sir, I am an

Bhartiya Janta Party candidate from 57, Ludhiana North. I

have already submitted the Form A and Form B for

nomination as party candidate. Now I have come to know that

other/others candidate/candidates has/have also applied

nomination paper/papers as B.J.P. candidate. As I am the

official Bhartiya Janta Party candidate, so my nomination

papers be accepted and the symbol reserved for Bhartiya

Janta Party be allotted to me. Please give me 24 (twenty

four) hours time for getting official confirmation for

record. Thanking you, Yours sincerely,

Sd/- (SUNIL KUMAR)

This application apparently had been filed keeping in

view the provisions of the proviso to Section 36(5) of the

Act. The prayer for grant of time to meet the objection of

the Returning Officer, contained in this application was,

however, rejected. The order rejecting the nomination paper

of Shri Sunil Kumar reads as follows : ORDER REGARDING

SCRUTINY

The Nomination of Sunil Kumar was received on

20.1.1997 at 12.10 p.m. His name was proposed by one

proposal and was registered at serial No.8. On 20.1.1997

the candidate brought Form A and Form B wherein it has been

mentioned by the President of the Bhartiya Janta Party that

Sunil Kumar would be main party candidate. However another

candidate namely Shri Vir Abhimanu also filed Form A & Form

B along with his application wherein it has been mentioned

that he is the main candidate of Bhartiya Janta Party.

However on the date of scrutiny it was noticed that his

authorisation does not any where state that the earlier

authorisation has been cancelled. Shri Sunil Mehra has

pleaded that since his papers are in order his candidature

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cannot be rejected at this stage opportunity should be

given to the party to withdraw candidature before the last

date of withdrawal. He also argued that the party has a

right to cancel or substitute an authorisation in favour of

any candidate before the last date of withdrawal. However I

am unable to agree with this contention. The Representation

of People Act, 1996 has been amended as per amended section

33 of the Representation of People Act 1951, the Nomination

of the candidate to a state Legislative assembly to be

subscribed by : (i) One elector of the constituency if the

candidate has been set up either by a recognised national

Party or by a recognised Party in the State or in the States

in which it is recognised as a State party. (ii) Ten (10)

electors of the Constituency as proposer if the candidate

has been set up by a Registered unrecognised political party

or if he is an independent candidate. The political parties

are required to intimate the names of the candidates set up

by them to the Returning Officer before scrutiny of

Nomination papers. In this case the last date for the party

to make nomination in Form A and Form B was 20.1.1997

upto 3 p.m. Therefore, under the amended law the nomination

made by the party in Form A and Form B prescribed for

this purpose by the Commission under para 13 of the Election

Symbols (Reservation and Allotment) Order 1968 also become

part of scrutiny. The Returning officer has to determine

the validity of nomination order (paper), keeping in view

whether the candidate has been set up by the Political party

or not. If he has been set up by the Political party only

one proposer is required and if he has been an independent

then ten proposers are required. The political parties has

to decide before scrutiny of the Nominations as to which it

is sponsoring. It cannot be given further time to change

such authorisation after scrutiny. Hence the contention of

Shri Sunil Kumar that party be given time till date of

withdrawal is not valid. Hence I am duty bound to decide

the matter today itself. Accordingly I have scrutinised the

nomination papers of Sunil Kumar and also Vir Abhimanyu.

Since the party has submitted authorisation in respect of

both these candidates as main candidates and no

authorisation mention the cancellation of the other

authorisation. I have to reach the conclusion that the

party has set up two main candidates which it cannot do.

Therefore, as per law both candidates have to be treated as

independent candidates. But the law also required that the

independent candidate should be sponsored by 10 proposers.

In this case there is only one proposer, hence the

requirement of law has not been fulfilled and therefore, the

Nomination paper of Sunil Kumar is rejected.

Dated : 21.1.1997 Sd/- Daljit Singh, Returning

Officer, 57-Ludhiana North

As already noticed, after the amendment of Section 33

(1) of the Act in 1996 a change has been brought about by

the Legislature with regard to the requirement of the number

of proposers of nomination papers to be filed by the

candidates. After the amendment, the nomination of a

candidate to a State Legislative Assembly is required to be

subscribed by only one elector of the constituency, where

the candidate has been set up either by a recognised

national political party or by a recognised political party

in the State or in the States in which it is recognised as a

party and in other cases the nomination paper has to be

subscribed by 10 electors of the constituency, as proposers,

where the candidate has been set up either by an

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un-recognised political party or is an independent

candidate. The political parties are also required to

intimate the names of the candidates set up by them to the

Returning Officer before scrutiny of nomination papers in

Forms A & B. The returning officer rejected the nomination

paper of the respondent, relying upon Section 33(1) of the

Act, as amended. It was held that since BJP had set up more

than one candidates and had not decided before scrutiny of

the nomination papers as to who was its official candidate

by cancelling the authorisation of the other candidate, both

the BJP candidates could be treated only as independent

candidates and not the candidates set up by a recognised

political party and since neither of the candidates had been

sponsored by ten proposers, their nomination papers were

invalid. The Election Commission of India has issued

instructions in exercise of its statutory functions. Those

instructions are contained in the Hand Book for Returning

Officers. Chapter VI of the Handbook deals with scrutiny of

nomination papers by the returning officer. The learned

single Judge of the High Court has referred to various

provisions of the instructions and has rightly come to the

conclusion that the returning officer did not follow those

instructions while scrutinising the nomination papers,

thereby adopting a wrong procedure. We agree with the view

of the High Court in that behalf. We are unable to persuade

ourselves to agree with the submission of Mr. Mishra that

the returning officer was justified in rejecting the

nomination paper of the respondent for non-compliance with

the requirements of Section 33(1), as amended, without any

further enquiry. The argument over looks the proviso to

Section 36(5) of the Act as well as the instructions issued

by the Election Commission of India (supra). The

legislature in its supreme wisdom did not amend the proviso

to Section 36(5) of the Act after Section 33(1) was amended

in 1996, thereby clearly exhibiting its intention that the

said proviso was required to be given its full effect, more

particularly because the duty which a returning officer

performs while scrutinising the nomination papers is quasi

judicial in character, even after Section 33(1) had been

amended. The proviso to Section 36(5) of the Act lays down:

Provided that in case (an objection is raised by the

returning officer or is made by any other person) the

candidate concerned may be allowed time to rebut it not

later than the next day but one following the date fixed for

scrutiny, and the returning officer shall record his

decision on the date to which the proceedings have been

adjourned.

Through the proviso, the legislature has provided that

in case an objection is raised during the scrutiny, to the

validity of a nomination paper of a candidate, the Returning

Officer, may, give an opportunity to the concerned candidate

to rebut the objection by giving him time not later than

the next day. This is in accord with the principles of

natural justice also. Since, no other candidate had raised

any objection to the claim of the respondent of being the

official candidate of BJP, and the objection had been raised

by the Returning Officer suo motu, the mandate of the

proviso to Section 36(5) of the Act warranted the holding of

a summary enquiry, to determine the validity of the

nomination paper by the returning officer, while exercising

his quasi-judicial function. In the present case, the

respondent had sought an opportunity to meet the objection,

but even if he had not sought such an opportunity, the

returning officer ought to have granted him time to meet the

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objection in the interest of justice and fair play. The

Returning Officer would have been justified in rejecting the

nomination paper of the respondent, had the respondent

either not sought an opportunity to rebut the objection

raised by the Returning Officer or was unable to rebut the

objection within the time allowed by the returning officer.

Since, the respondent, had by his written application

(supra), filed at the time of scrutiny of the nomination

papers itself claimed to be the official candidate set up by

BJP, which claim was not disputed by any one else during the

scrutiny, and had sought time of 24 hours to provide

relevant material in support of his submission, it was

obligatory on the part of the Returning Officer to allow

time to him to rebut the objection, suo motu, raised by the

Returning Officer. He could have given him any time to do

so within 24 hours but to deny him such an opportunity, in

the facts and circumstances of the case, was neither fair

nor proper or justified. It was expected of the Returning

Officer to adjourn the scrutiny of the nomination paper to

enable the respondent to meet the objection. The use of the

expression not later than the next day but one following

the date fixed for scrutiny under proviso to sub-section

(5) of Section 36 of the Act un-mistakably shows that the

Returning Officer has been vested with the discretion to fix

time to enable a candidate to rebut an objection to the

validity of his nomination paper and such a discretion has

to be fairly and judicially exercised. The refusal to grant

an opportunity to the returned candidate and rejecting his

nomination paper was clearly an arbitrary exercise of the

discretion vested in the Returning Officer. The Returning

Officer has also not given any cogent reasons for his

refusal to grant an opportunity as prayed for by the

respondent. The Returning Officer appears to have been

labouring under some misconception when he recorded that the

political party cannot be given further time to change such

authorisation after scrutiny. Under the proviso to Section

36(5) of the Act, the scrutiny itself would have been

postponed to the adjourned time and, therefore, it was not a

case of meeting the objection after scrutiny of the

nomination papers. The failure to exercise his jurisdiction

to postpone the decision as to the validity of the

nomination paper of the respondent, even after the

respondent had sought time to meet the objection, indeed

rendered the rejection of the nomination paper of the

respondent as both improper and illegal. The Returning

Officer is not expected to reject a nomination paper,

without giving an opportunity to the candidate or his

representative present at the time of scrutiny to meet an

objection, capable of being met, particularly where such an

opportunity is sought for by the candidate or his

representative and no one present on behalf of the other

candidates had opposed the claim made by the respondent.

Having raised the objection suo motu, the request of the

respondent who was present and sought time in writing to

seek clarification from the BJP as to who was its official

candidate, the Returning Officer in all fairness was obliged

to grant time to the respondent as prayed for by him and

postponed the scrutiny to the next day but he ought not to

have rejected his nomination paper in hot haste. The

Returning Officer, obviously, failed to exercise his

jurisdiction under Section 36(5) of the Act properly and

thereby fell into a grave error in rejecting the nomination

paper of the respondent. The learned Single Judge of the

High Court was, therefore, perfectly justified in holding

that the nomination paper of the respondent had been wrongly

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and illegally rejected, thereby rendering the election of

the returned candidate as void. The impugned order, thus,

suffers from neither a jurisdictional defect nor any other

error whatsoever. In the view that we have taken, we need

not detain ourselves to consider the effect of the rejection

of nomination papers of S/Shri Vir Abhimanyu and Harish

Kumar as the Election Petition was bound to succeed for the

improper and illegal rejection of the nomination paper of

respondent, Sunil Kumar itself. This appeal consequently

has no merits and is dismissed with costs. Counsel fee

Rs.7,000/- .