PETITIONER:
HARI VISHNU KAMATH
Vs.
RESPONDENT:
GOPAL SWARUP PATHAK
DATE OF JUDGMENT:
18/12/1969
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION:
1970 AIR 819 1970 SCR (3) 334
1970 SCC (1) 143
ACT:
Presidential and Vice-Presidential Elections Rules, 1962
framed under s. 21 of Presidential and Vice-Presidential
Elections Act (31 of 1952)Rule 4(1) requiring nomination
papers to be presented personally by candidate or proposer
or seconder-Nomination paper sent by post whether properly
presented-Whether “received” within the meaning of r. 4(2)-
Returning Officer whether can reject such nomination paper
before date of scrutiny-Rule 4(1) whether mandatory or
directory.
HEADNOTE:
At the election for the office of Vice-President held in
1969 the nomination paper of one ‘S’ was sent by post. The
Returning Officer rejected it forthwith on the ground that
it did not comply with the requirements of r. 4(1) of the
Presidential and Vice-Presidential Rules, 1952 inasmuch as
it had not been presented by the candidate or his proposer
or seconder. in person. The said nomination paper was
not put up for scrutiny under r. 6. The respondent won the
election. The petitioner who was one of the losing
candidates filed an. election petition under Art. 71 of the
Constitution and s. 14 of the Presidential and Vice-
Presidential Elections Act. 1952 and prayed that the
election of the respondent be declared void under s. 18 of
the Act. The questions that fell for consideration were :
(i) whether the nomination of S had been wrongly rejected on
the ground given; (ii) whether the Returning Officer had
power to reject the nomination before the date of scrutiny;
(iii) whether r. 4(l) was directory or mandatory.
HELD:(i) Rule 4(1) provides only one method of
presentation i.e. delivery either in person by the candidate
or by his proposer or seconder. Further it mentions the
time within which the nomination paper can be delivered i.e.
between the hours of eleven in the forenoon and three in the
afternoon. Therefore, if the nomination paper is not
presented in person either by the candidate or by the
proposer or seconder it cannot be deemed to have been
presented at all. There is good reason for making this rule
because otherwise not only the authenticity of the person
sending the nomination paper but also the time of delivery
of the nomination paper would be in doubt. Since the rule
provides only one method of presentation that method must be
followed. The provisions of rr. 4(2), 5 and 6 support the
above conclusion.
The nomination paper of ‘S’ could be rejected on the ground
that it had not been presented in person and received before
3 O’clock in the afternoon on the last date appointed under
cl. (a) of sub-Jr. (1) of r. 4. Such a nomination paper
could not be treated to have been ‘received’ within the
meaning of sub-r. (2) or r. 4 and the Returning Officer was
entitled to reject it. [340 F-341 C, HI
(ii)There was no force in the submission that the Returning
Officer should have waited till the date of the scrutiny.
As soon as the Returning Officer finds that a nomination
paper has not been duly presented and received he must
reject it outright at the time it is handed over to him.
[341 H-342 Al
335
(iii)Rule 4(l) is mandatory. To hold otherwise would
lead to utter confusion and delay in the completion of the
election. The Returning Officer would not know who and
where to inform about the date of scrutiny, he would not be
certain whether it is genuine, and would have to take
evidence as to whether it is a genuine nomination paper or a
forged paper. [342 B]
JUDGMENT:
ORIGINAL JURISDICTION : Election Petition No. 6 of 1969.
Petition under Art. 71 of the Constitution of India and S.
14 of the Presidential and Vice-Presidential Election Act
(Act XXXI of 1952).
Sarjoo Prasad, P. Paramegwara Rao and K. C. Dua, for the
petitioner.
M.C. Setalvad, N. A. Palkhivala, M. C. Chagla, J. B.
Dadachanji, Ravinder Narain and 0. C. Mathur, for the
respondent.
Jagdish Swarup, Solicitor-General, L. M. Singhvi and S. P.
Nayar, -for the Election Commission and Union of India.
The Judgment of the Court was delivered by
Sikri, J. This is a petition under Art. 71 of the
Constitution and S. 14 of the Presidential , & Vice-
Presidential Elections Act (XXXI of 1952)-hereinafter
referred to as the Act-praying for a declaration that the
election of Shri Gopal Swarup Pathak, respondent, to the
office of the Vice-President of India is void.
The main ground on which this declaration is sought is, that
the nomination paper of Dr. Ram Sharan Dass Sakhuja was.
wrongly rejected by the Returning Officer on August 6, 1969.
The respondent apart from meeting thus ground has raised a,
number of other issues including the issue whether the
nomination paper of Dr. Ram Sharan Dass Sakhuja was genuine,
and if not, whether the petition is maintainable. The
learned counsel for the respondent strongly pressed on us
that we should first try this issue suggested by him but as
we have come to the conclusion that the petition must fail
on the ground that the nomination paper of Dr. Ram Sharan
Dass Sakliuja was rightly rejected on August 6, 1969, it is
not necessary to consider the other issues that arise out of
the pleadings of the parties.
The two issues suggested by the petitioner which we propose-
to discuss are
1. Whether the nomination of Dr. Ram Sharan Dass, Sakchuja
has been wrongly rejected on the ground that the nomination
paper was not delivered in person;
336
2. Whether the Returning Officer had power to reject the
nomination even before the date of scrutiny.
The relevant facts for determining these issues may now be
set out. On 19th or 20th July, 1969, the office of the
Vice President of India fell vacant on the resignation of
the then incumbent, Shri V. V. Giri. The Election
Commission appointed Shri B. N. Banerjee, Secretary, Rajya
Sabha, as Returning Officer for the election of the Vice-
President of India. The Election Commission issued a
notification under s. 4 appointing August 9, 1969, as the
last date for filing nomination for election to the ,office
of the Vice-President Of India and August 11, 1969, for
scrutiny of nomination papers. A number of candidates filed
nomination papers and on August 11, 1969, the Returning
Officer made a record of proceedings. The relevant part of
the pro-ceedings reads as follows
“I held the scrutiny of nomination papers for the Vice-
Presidential Election today, the 11th August, 1969, at I I
A.M. in my office (Room No. 29) in Parliament House, New
Delhi, 24 nomination papers were delivered to me within the
time and in the manner laid down in rule 4 of the
Presidential and Vice-Presidential Election Rules, 1952.
These nomination papers related to :-
1. Shri S. Nagappa (One nomination paper)
2. Shri G. S. Pathak (Seventeen nomination papers)
3. Shri Sivashanniugam (Two nomination papers)
(Jagannathan Pillai)
4. Smt. Manohara Nirmala (One nomination paper) Holkar
5. Shri B. P. Mahaseth (One nomination paper)
6. Shri Hari Vishnu Kamath (.Two nomination
papers)
3.I gave the candidates and the others present all
-facilities for examining the nomination papers -of all the
candidates delivered to me. The nomination paper were
examined by them. No objection was raised to any nomination
papers by any candidate or his representative. I
scrutinised all the nomination papers and I found that they
satisfied the requirements of a valid nomination paper. I
accordingly accepted all the nomination papers as valid and
made endorsements on all the 24 nomination papers accepting
them.
337
4. I also brought to the notice of those present that I
had received some nomination papers, and some other papers-
purporting to be nomination papers, by post, and that I
could not treat them as valid nomination papers as they were
not delivered to me in accordance with sub-rule (1) of rule
4 of the Presidential and Vice-Presidential Election Rules,
1952, and that they also did not comply with, the provisions
of law in other respects. I further mentioned to those
present that there werein addition three other papers
which, though presented to me in person, did not comply
with the requirements of the law as they were not
accompanied by the certified extracts from the electoral
roll and suffered from other defects. I had not given any
serial number to any of these papers and had rejected all of
them.”
One of the nominations referred to in para 4 of the proceed-
ings was that of Dr. Ram Sharan Dass Shakuja. It appears
that. the nomination papers of Dr. Shakuja, alleged to be
complete in every respect, were not delivered in person
either by Dr. Shakuja. or by the proposer or seconder in
person to the Returning Officer but were received by him by
post on August 6, 1969. On that very day the Returning
Officer did not treat the papers as valid as they were not
delivered to him in accordance with sub-r. (1) of r. 4 of
the Presidential and Vice-Presidential Elections Rules,
1952.
In order to discuss the issues mentioned above it is
necessary to set out the relevant statutory provisions.
Under s. 4 of- the Act the Election Commission by
notification appoints for every election (a) the last date
for making nominations, (b) the date for scrutiny of
nominations, (c) the last date for the withdrawal of
candidatures, and (d) the date on which poll -shall, if
necessary, be taken. Under s. 5 any person may be nominated
as a candidate for election to the office of Vice-President
if he is qualified to be elected to that office under the
Constitution. Subsection (2 ) of s. 5 prescribes that each
candidate shall be nominated by a nomination paper completed
in the prescribed forms and subscribed by the candidate
himself as assenting to the nomination and by two electors
as proposer and seconder.
We may assume for the purpose of this case that the condi-
tions laid down in s. 5(2) were complied with.
Section 6 deals with the withdrawal of candidature and pro-
vides that any candidate may withdraw his candidature by a
notice in writing in the prescribed form subscribed by him
and delivered before three o’clock in the afternoon on the
date fixed
338
under clause (c) of subsection (1) of section 4, to the
Returning Officer either by such candidate in person or by
his proposer ,or seconder who has been authorised in this
behalf in writing by such candidate.
The learned counsel for the petitioner rightly conceded that
if .a candidate wants to withdraw Ms candidature the notice
in writing must be delivered to the Returning Officer in
person by such candidate or by his proposer or seconder who
has been authorised. In other words no candidate can
withdraw by sending a notice in writing by post.
Section 18 gives the grounds for declaring the election of
a .returned candidate to be void. One of the grounds is
“If the Supreme Court is of opinion that the nomination of
any candidate has been wrongly rejected or the nomination of
the successful candidate or of any other candidate who has
not withdrawn his candidature has been wrongly accepted, the
Supreme Court shall declare the election of the returned
candidate to be void.”-
Section 21 gives powers to the Central Government to make
rules and the two matters, among others, on which rules can
be made are:
“(d) the form and manner in which nominations may be made
and the procedure to, be followed in respect of the
presentation of nomination papers;
(e)the scrutiny of nominations and, in particular, the
manner in which such scrutiny shall be, conducted and the
conditions and circumstances under which any person may be
present or may enter objections there at.”
In pursuance of these, powers rules were framed. Rule 4
deals with the presentation of nomination papers and is in
the following terms
“4. (1) On or before the date appointed under clause (,a) of
sub-section (1) of section 4, each candidate shall, either
in person or by his proposer or seconder, between the hours
of eleven in the forenoon and three in the afternoon,
deliver to the Returning Officer at the place specified in
this behalf in the public notice a nomination paper
completed in Form 2 in the case of a Presidential election,
and in Form 3 in the case ,of a Vice-Presidential election,
together with a certified copy of the entry relating to the
candidate in the electoral roll for the Parliamentary
constituency in which he is registered.
339
(2)Any nomination paper which is not received before three
o’clock in the afternoon on the last date appointed under
clause (a) of sub-section (1) of section 4 or to which the
certified copy referred to in subrule (I) of this rule is
not attached shall be rejected.”
Rule 5 prescribes the procedure on receipt of nomination
papers as follows :
“5. On the presentation of a. nomination paper, the
Returning Officer shall-
(a) sign thereon a certificate stating the date and time of
presentation of the nomination paper and enter thereon its
serial number;
(b) inform the person or persons presenting the nomination
paper of the date, time, and place fixed for the scrutiny of
nominations; and
(c) cause to be affixed in some conspicuous place in his
office a copy of the nomination paper as certified and
numbered under clause (a) of this rule.”
Rule 6 provides for the scrutiny of nominations and is in
the following terms :
“6. (1) The candidates, one proposer and one seconder of
each candidate, and one other person duly authorised in
writing by such. candidate, shall be entitled to be present
at the time of scrutiny of nominations; and the Returning
Officer shall give them all reasonable facilities for
examining the nomination papers, of all candidates which
have been delievered within the time and in the manner laid
down in rule 4.
(2) The Returning Officer shall then examine the nomination
papers and decide all objections which may be made to any of
them.
(3)The Returning Officer may, either on such objection or on
his own motion, and after such summary inquiry, if any, as
he thinks necessary, reject a nomination paper on any of
the, following grounds, namely :
(a)that the candidate is not eligible for election as
President or Vice-President, as the case may be, under the
Constitution; or
(b)that the proposer or seconder is not qualified to
subscribe a nomination paper under sub-section
(2) of section 5; or
340
(c)that the signature of the candidate, proposer or
seconder is not genuine or has been obtained by fraud; or
(d)that the nomination paper has not been duly completed and
the defect or irregularity is of a substantial character; or
(e)that the proposer or seconder has subscribed, whether as
proposer or seconder, another nomination paper received
earlier by the Returning Officer at the same election.
(4)The Returning Officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of sub-section (1)
of section 4 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, in case an objection is made, the candidate
concerned shall, if he so requires, 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 on which the proceedings have been
adjourned.
(5)The Returning Officer shall endorse on each nomination
paper his decision either accepting or rejecting it and if
the nomination paper is rejected, he shall record in writing
a brief statement of his reasons for rejecting it.”
The question whether a candidate is entitled to send his
nomination papers by post to the Returning Officer may now
be considered. It will be noticed that r. 4 provides only
one manner of presentation, i.e., delivery either in -person
by the candidate or by his proposer or seconder. Further it
mentions the time within which it can be delivered, i.e.,
between the hours of eleven in the forenoon and three in the
afternoon. It seems to us that if the nomination paper is
not presented in person either by the candidate or by the
proposer or the seconder. it cannot be deemed to have been
presented at all. There seems to be good reason for making
this rule because otherwise not only the authenticity of the
person sending the nomination paper will be in doubt but
also the time of the delivery of the nomination paper would
be in doubt.
Be that as it may, if the rule provides one method of
presentation that method of presentation must be followed.
That this
341
is the only method of presentation of nomination papers is
home out by subsequent provisions. Sub-rule (2) of r. 4
provides that any nomination paper which is not received
before 3 o’clock in the afternoon on the last date appointed
under cl. (a) of sub-s. (1) of s. 4 shall be rejected.
This shows that even if a nomination paper is presented
personally but after 3 o’clock in the afternoon it has to
be rejected. The rule proceeds on the basis that the
presentation must have been either ‘in person or by the pro-
poser or the seconder. If a nomination paper is received by
post it would be difficult to say that it has been presented
and received before 3 o’clock on the last date appointed
under cl. (a) of sub-s. ( 1 ) of s. 4.
Rule-5 also proceeds on the basis that the presentation of a
nomination paper must be in person because it requires the
Returning Officer to sign thereon a certificate stating the
date and time of presentation of the nomination paper and
inform the person or persons presenting the nomination paper
of the date, time and place fixed for the scrutiny of
nominations. It is clear that r. 5 contemplates only one
method of presentation. This is again evident from r. 6
which directs the Returning Officer inter alia to give the
candidates and other authorised persons present reasonable
facilities for examining the nomination papers of all
candidate s which have been delivered within the time and in
the manner laid down in r. 4. In other words, the nomination
papers which have not been delivered within time and in the,
manner laid down in r. 4 have not to be shown for purposes
of scrutiny.
The learned counsel for the petitioner contends that sub-r.
(2) of r. 4 gives two grounds of rejection, one that the
nomination paper is not received before 3 o’clock in the
afternoon of the last date appointed under cl. (a) of sub-s.
(1) of s. 4, and the second that the certified copy referred
to (in sub-r. (1) of r. 4 is not attached. He further says
that r. 6 gives five more grounds of rejection. He says
that the ground on which the nomination paper of Dr. Ram
Sharan Dass Shakuja has been rejected is not covered by
either sub.-r. (2) of r. 4 or r. 6 and accordingly the
nomination paper of Dr. Ram Sharan Dass Shakuja could not
have been validly rejected.
It seems to us that this nomination paper could be rejected
on the ground that it has not been presented in person and
received before 3 o’clock in the afternoon on the last date,
appointed under cl. (a) of sub-r. ( 1 ) of r. 4. Such a
nomination paper could not be treated to have been received
within the meaning of sub-r. (2) of r. 4 and the Returning
Officer was entitled to reject it.
There is no force in the second submission that at any rate
the Returning Officer should have waited till the date of
the scrutiny
L7Sup.(CI)170-7
342
because as soon as he finds that a nomination paper has not
been duly presented and received he must reject it outright
at the time it is handed over to him.
The learned counsel contends that even if there has been a
breach of r. 4(l), the rule is not mandatory and the breach
of it should not be deemed fatal. We are unable to agree
with this submission. As we have mentioned before, the
rules contemplate only one method of presentation and if
that method is not followed the nomination papers cannot be
held to be validly presented and must be rejected outright.
To hold otherwise would lead to utter confusion and delay in
the completion of the election. The Returning Officer would
not know who and where to inform about the date of scrutiny;
he would not be certain whether it is genuine, and would
have to take evidence as to whether it is a genuine
nomination paper or a forged paper.
In the result the petition fails and is dismissed with
costs. The petitioner will pay to the respondent Rs. 500 as
total amount of costs.
G.C. Petition dismissed.
343