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CASE NO.:

Appeal (civil) 4023 of 2001

PETITIONER:

Shaligram Shrivastava

RESPONDENT:

Naresh Singh Patel

DATE OF JUDGMENT: 19/12/2002

BENCH:

R.C. Lahoti, Brijesh Kumar & H.K. Sema.

JUDGMENT:

JUDGMENT

BRIJESH KUMAR, J.

The defeated candidate in the bye-election held in

February, 2000 to the legislative assembly, Madhya Pradesh

from Bhojpur assembly constituency, filed an election petition in

the High Court of Madhya Pradesh challenging the declaration of

the respondent as elected from the aforesaid assembly

constituency. The election petition has been dismissed, hence

this appeal.

Briefly, the facts are that nomination paper of one

Bhagwan Singh was rejected at the time of scrutiny on the

ground that he had not filled up the proforma prescribed by the

Election Commission vide letter dated 28.8.97. The said

proforma was required to be filled up to ascertain as to whether

the candidate had been convicted or not for any offence

mentioned in Section 8 of the Representation of People Act,

1951 (for short the 'Act'). Interestingly, the candidate, namely,

Bhagwan Singh had filed an affidavit that information given in

the proforma was correct but the proforma itself was left blank.

He had though filled the nomination paper on Form 2-B as

prescribed under Rule 4 of the Conduct of Elections Rules, 1961

declaring that the candidate was qualified and also not

disqualified for being chosen to fill the seat. According to the

Election petitioner the nomination paper of Bhagwan Singh could

not be rejected on the ground that he had not filled up the

proforma prescribed under the letter dated 28.8.97, since no

such proforma was statutorily provided under the provisions of

the Act nor under the rules framed thereunder. It is contended

that the commission could not legislate to prescribe a proforma;

at best it can only be an executive instruction of the Election

Commission whereas the petitioner had filled the form

prescribed under the Rules which did not suffer from any defect.

Yet another ground taken up by the petitioner was

that failure to comply with executive direction of the Election

Commission would not entail the consequence of rejection of the

nomination paper much less where it is not provided that failure

to fill up the proforma would result in rejection of the nomination

paper.

The High Court considering the points raised by the

petitioner came to the conclusion that non-submission of the

declaration as required under the instruction dated 28.8.97 is a

defect of substantial character. Hence the nomination paper was

rightly rejected by the Returning Officer. At this juncture it may

also be mentioned that a question seems to have been raised,

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as to whether election petition could be entertained, in view of

the fact that Bhagwan Singh, whose nomination paper was

rejected neither approached the court nor he ever raised any

objection to the rejection of his nomination paper, but this

point does not seem to have been pursued before the High Court

nor this court was addressed on the said point. We therefore,

need not digress on that question and proceed to consider the

matter on merit of the appeal on the grounds canvassed before

us.

Before entering into the merits of the other points it would

be appropriate to deal with one question raised by the appellant

to the effect that the instructions dated 28.8.97 contained in

letter P-1 and the letter dated 6.1.98 have not been issued by

the Election Commission. On the other hand it is submitted that

these letters have been issued by the officers of the

Commission, hence Article 324 of the Constitution will not be

attracted. This point though argued at length, holds no water

and it is destined to be rejected. Referring to letter dated

28.8.97 it is submitted that it has been issued only by the

Director (Law) of the Election Commission. It is further pointed

out that the said letter has been issued only to operationalise

the directive of the Commission. The Commission had desired

that at the time a nomination paper is filed, the candidate should

also fill up the proforma annexed therewith seeking information

with a view to ascertain, at the time of scrutiny, as to whether

his candidature is valid in the light of the provision of Section 8

of the Act or not. The instructions of the Commission alongwith

copy of the letter of the Commission dated 28.8.97 were

furnished to all Returning Officers and Assistant Returning

Officers for their information, guidance and strict compliance. It

may be pointed out that the letter written by the Director (Law)

itself refers to the instructions issued by the Commission dated

28.8.97 under Article 324 of the Constitution. It has not been

anybody's case that letter dated 28.8.97 issued by the Director

(Law) is the instruction issued by the Election Commission

under Article 324 of the Constitution. The letter of the Director

(Law) only indicates the gist of the instructions of the

Commission issued on the same date. The appellant has chosen

not to file the instructions issued by the Election Commission

dated 28.8.97 under Article 324 of the Constitution. It may

further be indicated that the main document is the proforma

which is required to be filled up by the candidate as per

instructions of the Election Commission, seeking information

which was considered necessary at the time of scrutiny of the

nomination paper. The letter dated January 6, 1998 issued by

the Secretary of the Election Commission clearly indicates in

para 2 that revised proforma was issued along with letter of the

Commission dated 28.8.97. Therefore there is no substance

whatsoever in the submission made on behalf of the appellant,

with some vehemence too, that the proforma as well as the

instructions were issued by the officers of the Election

Commission and not by the Commission itself. Apart from what

has been indicated above it may also be noticed that such a

ground was never canvassed before the High Court nor it has

been taken in the special leave petition; rather it has been

mentioned at all the places that the instructions and proforma

were issued by the Election commission. It is only on the basis

of oral submission that such a point was tried to be made out.

For the above reasons we repel this contention of the appellant.

We thus feel that mainly two aspects of the matter require

our consideration, the first being the status of the instruction

issued by the Election Commission and its binding nature by

virtue of Article 324 of the Constitution and the next point as to

the nature and scope of inquiry as well as the power of the

Returning Officer under Section 36 (2) of the Act at the time of

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scrutiny. That is to say suppose it is held that the instructions

and the proforma issued by the Commission does not have the

force of instructions issued under Article 324 of the Constitution

on the ground that the field is already covered by legislation as

canvassed or on any other ground whatsoever, could the

Returning Officer still in exercise of its power under Section

36(2) of the Act, seek necessary information and reject the

nomination paper or not. We propose to deal with the second

point first. It will be appropriate to peruse the relevant

provisions contained under Sections 30, 33, 34 and 36 of the

Act. They read as follows:-

"30. Appointment of dates for nominations,

etc.- As soon as the notification calling upon a

constituency to elect a member or members is issued,

the Election Commission shall, by notification in the

Official Gazette, appoint -

(a) the last date for making nominations, which

shall be the [seventh day] after the date of

publication of the first mentioned notification

or, if that day is a public holiday, the next

succeeding day which is not a public holiday;

(b) the date for the scrutiny of nominations, which

shall be [the day immediately following] the

last date for making nominations or, if that day

is public holiday, the next succeeding day

which is not a public holiday;

(c) the last date for the withdrawal of

candidatures, which shall be [the second day]

after the date for the scrutiny of nominations

or, if that day is a public holiday, the next

succeeding day which is not a public holiday;

(d) the date or dates on which a poll shall, if

necessary, be taken which or the first of which

shall be a date not earlier than the [fourteenth

day] after the last date for the withdrawal of

candidatures; and

(e) the date before which the election shall be

completed.

Xxx xxx xxx

33. Presentation of nomination paper and

requirements for a valid nomination - (1) 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 O'clock in the

forenoon and three O'clock in the afternoon deliver

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 form

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.

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Provided further that no nomination paper shall

be delivered to the returning officer on a day which

is a public holiday.

Provided also that in the case 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 to ten per cent of the electors of the

constituency or ten such electors, whichever is less,

as proposers.]

(1A) . . . . . . . . . .

(2) . . . . . . . . .

(3) . . . . . . . . .

(4) On the presentation of a nomination paper,

the returning officer shall satisfy himself that the

names and electoral roll numbers of the candidate

and his proposer as entered in the nomination paper

are the same as those entered in the electoral rolls:

[Provided that no misnomer or inaccurate

description or clerical, technical or printing error in

regard to the name of the candidate or his proposer

or any other person, or in regard to any place,

mentioned in the electoral roll or the nomination

paper and no clerical, technical or printing error in

regard to the electoral roll numbers of any such

person in the electoral roll or the nomination paper,

shall affect the full operation of the electoral roll or

the nomination paper with respect to such person or

place is such as to be commonly understood; and the

returning officer shall permit any such misnomer or

inaccurate description or clerical, technical or

printing error to be corrected and where necessary,

direct that any such misnomer, inaccurate

description, clerical, technical or printing error in the

electoral roll or in the nomination paper shall be

overlooked.]

(5) . . . . . . . .

(6). . . . . . .

[(7). . . . . . .

34. Deposits:[(1)A candidate shall not be deemed

to be duly nominated for election from a

constituency unless he deposits or causes to be

deposited,-

(a) . . . . . .

(b) . . . . . .

(2) . . . . . . .

Xxx xxx xxx

36. Scrutiny of nominations.- (1)On the date

fixed for the scrutiny of nominations under section

30, the candidates, their election agents, one

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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.

(2) The returning officer shall then examine the

nomination papers and shall decide all objections

which may be made to any nomination and may,

either on such objection or on his own motion, after

such summary inquiry, if any, as he thinks

necessary, [reject] any nomination on any of the

following grounds :-

[(a) [that on the date fixed for the scrutiny of

nominations the candidate] either is not qualified or

is disqualified for being chosen to fill the seat under

any of the following provisions that may be

applicable, namely :-

Articles 84, 102, 173 and 191,

[Part II of this Act and sections 4 and 14 of the

Government of Union Territories Act, 1963 (2) of

1963)]; or

(b)that there has been a failure to comply with any

of the provisions of section 33 or section 34; or

(c) that the signature of the candidate or the

proposer on the nomination paper is not genuine.]

(3) Nothing contained in [clause (b) or clause (c) of

sub-section (2) shall be deemed to authorise the

[rejection] of the nomination of any candidate on the

ground of any irregularity in respect of a nomination

paper, if the candidate has been duly nominated by

means of another nomination paper in respect of

which no irregularities has been committed.

(4) The returning officer shall not reject any

nomination paper on the ground of any defect which

is not of a substantial character.

(5) The returning officer shall hold the scrutiny on

the date appointed in this behalf under clause (b) of

section 30 and shall not allow any adjournment of

the proceedings except when such proceedings are

interrupted or obstructed by riot or open violence or

by causes beyond his control:

Provided that I 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,

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shall record in writing a brief statement of his

reasons for such rejection.

[(7) For the purposes of this section, a certified

copy of an entry in the electoral roll for the time

being in force of a constituency shall be conclusive

evidence of the fact that the person referred to in

that entry is an elector for that constituency, unless

it is proved that he is subject to a disqualification

mentioned in section 16 of the Representation of the

People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination

papers have been scrutinized 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.]

To summarise the legal position as emerging from

the above provisions we find that Section 30 of the Act provides

for fixing of dates for filing of nomination paper for election of a

member from a Constituency. Section 32 provides that a person

may be nominated as candidate for election to fill a seat who is

qualified to be chosen to fill that seat under the provisions of the

Constitution and the Act. Section 33 relates to presentation of

nomination paper and requirements for a valid nomination. The

nomination is to be in the prescribed form signed by the

candidate and by an elector of the Constituency as proposer.

Other clauses of Section 33 indicate a number of requirements of

a valid nomination. A notice of scrutiny of the nomination paper

indicating the date and time for the purpose is to be issued and

affixed in some conspicuous place as provided under section 35

of the Act. Under Section 36 of the Act, a nomination paper is

scrutinized by the Returning Officer. Sub-section (2) of Section

36 provides that the Returning Officer on the objections filed to

any nomination, or on his motion may hold a summary enquiry

in connection thereof. A nomination can be rejected on the

grounds: (i) the candidate is not qualified or is disqualified for

being chosen to fill the seat under any of the provisions namely,

Articles 84, 102,173 and 191 of the Constitution or under Part II

of the Act (Section 8 of the Act falls in Part II); (ii) the

nomination paper can also be rejected on failure to comply with

provisions of Section 33 or Section 34 of the Act or; (iii) The

signature of the candidate or the proposer on the nomination

paper is not genuine. Sub-section (4) of Section 36 provides that

the Returning Officer shall not reject any nomination paper on

the ground of any defect which is not of substantial character.

The prescribed form B-2 for filing the nomination contains

a declaration that the candidate is qualified and not disqualified.

No further facts, details or information is contained in the

prescribed form in relation to his qualification or disqualification.

Section 8 of the Act which falls in Part II, provides for

disqualification which a person may incur on being convicted. It

may be noted that every conviction may not result in

disqualification. It depends upon the nature of the offence and

provisions under which the offence is committed, as also the

period of sentence awarded.

At the time of scrutiny the Returning Officer is entitled to

satisfy himself that a candidate is qualified and not disqualified.

Sub-section (2) of Section 36 authorises him to hold an enquiry

on his own motions, though summary in nature. The Returning

Officer furnished a proforma to the candidates to be filled on

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affidavit and filed on or before the date and time fixed for

scrutiny of the nomination paper. Therefore providing a

proforma, eliciting necessary and relevant information in the

light of Section 8 of the Act to enquire as to whether the person

is qualified and not disqualified, is an act or function fully

covered under sub-section(2) of Section 36 of the Act. The

Returning Officer is authorized to seek such information to be

furnished at the time or before scrutiny. If the candidate fails to

furnish such information and also absents himself at the time of

the scrutiny of the nomination papers, is obviously avoiding a

statutory enquiry being conducted by the Returning Officer

under Sub-section (2) of Section 36 of the Act relating to his

being not qualified or disqualified in the light of Section 8 of the

Act . It is bound to result in defect of a substantial character in

the nomination.

The letter dated 28.8.97 issued by Director (Law) was

addressed to the Chief Electoral Officer of all the States and

Union Territories and it drew attention to the instructions issued

by the Election Commission under Article 324 of the Constitution

saying that in view of decisions of some High Courts, the

disqualification of a candidate for election under Section 8 of the

Act would commence from the date of conviction, regardless of

the fact whether he is intending to be a candidate, is on bail or

not except where the conviction is covered under Sub-section

4 of Section 8 of the Act.

To elicit the relevant information in regard to Section 8,

the Commission had indicated a proforma which was to be

handed over to the candidates who were supposed to fill the

same on affidavit. In this context we may peruse Section 8 of

the Act which reads as under:-

Disqualification on conviction for certain

offences - (1) A person convicted of an offence

punishable under -

(a) section 153A (offence of promoting enmity

between different groups on ground of religion, race,

place of birth, residence, language, etc., and doing

acts prejudicial to maintenance of harmony) or

Section 171 E (offence of bribery) or section 171 F

(offence of undue influence or personation at an

election) or sub- section (1) or sub-section (2) of

Section 376 or section 376A or Section 376B or

Section 376C or section 376D (offences relating to

rape) or section 498A (offence of cruelty towards a

woman by husband or relative of a husband) or sub

section (2) or sub section (3) of Section 505 (offence

of making statement creating or promoting enmity,

hatred or ill will between classes or offence relating

to such statement in any place of worship or in any

assembly engaged in the performance of religious

worship or religious ceremonies) or the Indian Penal

Code (45 of 1860), or

(b) the Protection of Civil Rights Act, 1955 (22 of

1955 ), which provides for punishment for the

preaching and practice of "untouchability", and for

the enforcement of any disability arising therefrom;

or

section 11 (offence of importing or exporting

prohibited goods) or the Customs Act, 1962 (52 of

1962); or

(d) sections 10 to 12 (offence of being a member of

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an association declared unlawful, offence relating to

dealing with funds of an unlawful association or

offence relating to contravention of an order made

in respect of a notified place) of the Unlawful

Activities (Prevention) Act, 1967 (37 of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973 (46

of 1973); or

(f) The Narcotic Drugs and Psychotropic Substances

Act, 1985 (61 of 1985); or

(g) section 3 (offence of committing terrorist acts) or

section 4 (offence of committing disruptive activities)

of the Terrorist and Disruptive Activities (Prevention)

Act, 1987 (28 of 1987); or

(h) section 7 (offence of contravention of the

provisions of Section 3 to 6) of the Religious

Institutions (Prevention of Misuse) Act, 1988 (41 of

1988); or

(i) section 125 (offence of promoting enmity

between classes in connection with the election) or

section 135 (offence of removal of ballot papers from

polling stations) or section 135A (offence of booth

capturing) or clause (a) of sub section (2) of section

136 (offence of Fraudulently defacing or fraudulently

destroying any nomination paper) of this Act;

(j) section 6 (offence of conversion of a place or

worship) of the Places of Worship (special

Provisions) Act 1991

(k) section 2 (offence of insulting the Indian National

Flag or the Constitution of India) or section 3

(offence or preventing singing of National Anthem) of

the Prevention of Insults to National Honour Act,

1971 (69 of 1971) shall be disqualified or a period

of six years from the date of such conviction.

(2) A person convicted for the contravention of -

(a) any law providing for the prevention of

hoarding or profiteering; or

(b) any law relating to the adulteration of food or

drugs; or

(c) any provisions of the Dowry Prohibition Act,

1961 (28 of 1961); or

(d) any provisions of the Commission of Sati

(Prevention) Act, 1987 (3 of 1988),

and sentenced to imprisonment for not less than six

months, shall be disqualified from the date of such

conviction and shall continue to be disqualified for a

further period of six years since his release.

(3) A person convicted of any offence and sentenced

to imprisonment for not less than two years [ other

than any offence referred to in sub-section (1) or

sub section (2) shall be disqualified from the date of

such conviction and shall continue to be disqualified

for a further period of six years since his release]

(4) Notwithstanding anything (in sub section (1) sub

section2 and sub section (3) a disqualification under

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either sub section shall not, in the case of a person

who on the date of the conviction is a member of

Parliament or the Legislature of a State take effect

until three months have elapsed from that date or, if

within that period an appeal or application for

revision is brought in respect of the conviction or the

sentence, until that appeal or application is disposed

of by the court.

Explanation - In this section -

(a) "law providing for the prevention of hoarding or

profiteering" means any law, or any order, rule or

notification having the force of law, providing for -

(i) the regulation of production or manufacture

of any essential commodity;

(ii) the control of price at which any essential

commodity may be brought or sold;

(iii) the regulation of acquisition, possession,

storage, transport, distribution, disposal,

use or consumption of any essential

commodity;

(iv) the prohibition of the withholding from sale

of any essential commodity ordinarily kept

for sale;

(a) "drug" has the meaning assigned to it in the Drugs

and Cosmetics Act, 1940 ( 23 of 1940);

(c) "essential commodity" has the meaning assigned to

it in the Essential Commodities Act, 1955 (10 of

1955)

(b) "food" has the meaning assigned to it in the

Prevention Food Adulteration Act, 1954 (37 of 1954).

According to the petitioner information furnished in the

form 2-B prescribed under Rule 4 for the nomination is sufficient,

as it contains the declaration of the candidate that he is qualified

and not disqualified to be a candidate for being chosen from the

constituency. In our view the bald declaration that the

candidate is qualified and not disqualified is not at all sufficient

to scrutinize the nomination paper from the angle of Section 8 of

the Act. Clause (a) of sub-section 2 of Section 36 provides for

scrutiny of the nomination paper to see whether he is

disqualified for being chosen to fill the seat or not, amongst

others in the light of part II of the Act; as indicated earlier,

Section 8 falls in part II of the Act. Therefore, the declaration in

the nomination paper that the candidate is qualified and not

disqualified may only be a mere basic statement necessary to fill

up the nomination paper but it contains no information or facts

relevant for the purposes of scrutinising the nomination paper in

the light of Section 8 of the Act which falls in Part II of the Act.

For the purpose of scrutiny further information is

necessary. The scrutiny may call for even suo motu inquiry by

the Returning Officer though summary in nature. It is one of

the statutory duties of the Returning Officer to scrutinize the

nomination paper in the light of section 8 of the Act and he is

statutorily authorised to hold a summary inquiry about the

qualification and disqualification of a candidate (See Birad Mal

Singhvi vs. Anand Purohit, AIR 1988 SC 1796). Such a power

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which vests in the Returning Officer is not dependent upon any

instructions issued by the Election Commission, therefore, it is

not necessary to enter into the controversy which is sought to

be raised as to whether the instructions issued by the Election

Commission are in exercise of its power under Article 324 or not.

The returning Officer is supposed to have the necessary

information at the time of scrutiny of the nomination paper and

for that purpose he can very well require a candidate to furnish

information relevant for the purpose of section 8 of the Act

before or on the date of scrutiny. At best it can be said that the

Election Commission by its letter dated 28.8.1997 had brought

to the notice of the Returning Officers certain decisions of

different High Courts in regard to disqualification under Section 8

of the Act. It was further desired that such a scrutiny be made

by the Returning Officers looking to the menace of

criminalisation of the politics. Barring the fact that the

instructions apprised the Returning officers of the position under

law in the light of the judgments of the High Courts, nothing else

was provided thereunder which was already not within the power

of the Returning Officer under the statutory provisions rather it

was a part of their duty to scrutinize the nomination papers in

the light of Section 8 of the Act which implies that he is

authorised to seek necessary information for the purpose. It can

be suo motu as well.

Since such information is necessary and relevant for the

purpose of scrutiny of the nomination paper under Section

36(2), in the light of Section 8 of the Act, it can well be furnished

on a format provided to the candidate by the Returning Officer

and it becomes his duty to furnish such information so that a

Returning Officer may discharge its statutory duty to scrutinize

the nomination paper effectively, properly and in consonance

with the provisions of law.

Here we would like to point out that the directive of the

Commission states "when a candidate files his nomination paper

the Returning Officer or, as the case may be, the Returning

Officer receiving the nomination paper shall hand over to him the

enclosed letter, together with the proforma of affidavit annexed

thereto to ascertain at the time of scrutiny of nomination as to

whether the candidature is valid from the angle of Section 8 of

RP Act, 1959", it would be better that for future the directive

may find it feasible to require the Returning Officer to hand over

the proforma of affidavit while issuing the nomination paper

itself.

In the case in hand the candidate had failed to furnish

such information as sought on the proforma given to him and

had also failed to be present personally or through his

representative at the time of scrutiny. The statutory duty/power

of Returning Officer for holding proper scrutiny of nomination

paper was rendered nugatory. No scrutiny of the nomination

paper could be made under Section 36(2) of the Act in the light

of Section 8 of the Act. It certainly rendered the nomination

paper suffering from defect of substantial character and the

Returning Officer was within his rights in rejecting the same.

The appeal therefore, lacks merit and it is dismissed

with costs.