Case Note & Summary
The case arose from an election petition challenging the election of the returned candidate to the 10th Lok Sabha from 13 Madhubani Parliamentary Constituency in Bihar. The respondent, an elector, filed the petition in the Patna High Court under the Representation of the People Act, 1951, alleging that the Returning Officer improperly rejected the nomination papers of two candidates, Pawan Kumar Pathak (PW-4) and Lal Bahadur Singh (PW-6). The High Court had declared the appellant's election void, and the returned candidate appealed to the Supreme Court. For the 1991 general elections, the last date for filing nominations was April 26, 1991, and scrutiny took place on April 27, 1991. Out of 61 candidates who filed nominations, three nomination papers were rejected, including those of PW-4 and PW-6. The grounds for rejection were that the proposer's name did not tally with the name as entered in the electoral roll; specifically, the electoral roll number of PW-4's proposer was incorrectly mentioned as S.No.113 Part 190 instead of S.No.413 Part 190, and PW-6's proposer's part number was given as 75 instead of 74. Poll was held on May 23, 1991, and the appellant secured 3,30,111 votes (51.91%), while the nearest rival Dr. Jagannath Mishra secured 2,50,020 votes (39.31%). The respondent, an elector, filed an election petition on the ground that the rejection of the nominations of PW-4 and PW-6 was bad in law. The main legal issue before the Supreme Court was whether the High Court was correct in holding that the Returning Officer had not conducted a summary inquiry under Section 36 of the Representation of the People Act, 1951, and whether the defects in the proposers' electoral roll numbers were of substantial character warranting rejection. The respondent argued that the Returning Officer failed to conduct the required inquiry and should have corrected clerical errors under the proviso to Section 33(4). The appellant contended that the Returning Officer was not expected to make a roving enquiry and that the candidates/proposers had failed to assist him; moreover, the rejected candidates appeared to be dummy candidates. The Supreme Court analyzed Sections 33 and 36 of the Act. It noted that Section 33(4) requires the Returning Officer to satisfy himself that the names and numbers in the nomination paper tally with the electoral roll, but the proviso permits overlooking misnomers and clerical errors only where the description is commonly understood and the officer may correct such errors. Section 36(4) prohibits rejection of nomination on grounds of defects that are not of a substantial character. The Court relied on its recent decision in Rafiq Khan & Anr. v. Lazmi Narayan Sharma, where it was held that a defect is not of non-substantial character unless it can be per se noticed and corrected without reference to other documents. In the present case, the defects required the Returning Officer to sift through voters list and undertake an enquiry, which was not expected. The Court held that the Returning Officer is required only to conduct a summary inquiry, not a roving enquiry, and the burden is on the candidate/proposer to satisfy him of the correctness of the particulars. The evidence showed that PW-4 and PW-6, though present at scrutiny, did not ask for an opportunity to correct the particulars or place material before the Returning Officer. The Court also noted indications that they were dummy candidates with no real interest, as they did not know the election result or file any petition.The Supreme Court concluded that the High Court erred in declaring the appellant's election void. It held that the rejection of nominations was valid, as the defects were substantial and the Returning Officer was not required to conduct a roving enquiry. The appeal was allowed, the High Court's judgment was set aside, the election petition was dismissed, and costs of Rs.15,000 were awarded to the appellant.
Headnote
A) Election Law - Scrutiny of Nomination Papers - Returning Officer's Duty is Summary Inquiry, Not Roving Enquiry - Representation of the People Act, 1951, Section 36(1) & 36(4) - The Returning Officer is required to examine nomination papers and decide objections after such summary inquiry as he thinks necessary, but is not expected to sift through various documents or undertake an independent search of the electoral roll to verify proposer's numbers. In absence of any request from the candidate or proposer to correct the defect, the Returning Officer was justified in rejecting the nomination. Held that High Court erred in requiring roving inquiry and declaring election void. B) Election Law - Defect of Substantial Character - Determination of Substantiality of Defects in Nomination Papers - Representation of the People Act, 1951, Section 36(4) - A defect in the electoral roll number of the proposer is of substantial character unless it is per se noticeable and correctable without reference to other documents. Where the Returning Officer would need to undertake an enquiry or refer to voters list, the defect is substantial. Held that the defects in the nomination papers of PW-4 and PW-6 were substantial and rejection was proper. C) Election Law - Rejection of Nomination - Opportunity to Correct Errors and Candidate's Duty to Assist - Representation of the People Act, 1951, Section 33(4) proviso & Section 36(5) - The proviso to Section 33(4) allows correction of clerical, technical or printing errors if the description is commonly understood, but the candidate or proposer must seek such correction and provide necessary material. PWs 4 and 6, though present at scrutiny, did not ask for opportunity or attempt to satisfy the Returning Officer. Held that failure to assist rendered rejection valid. D) Election Law - Nature of Candidates - Dummy Candidates and Malicious Election Petition - Representation of the People Act, 1951, Section 36 - Evidence suggested that the rejected candidates were dummy candidates with no real interest in contesting election; they did not know the election result or file any petition. Held that High Court misplaced reliance on their testimony, and the election petition appeared to be an attempt to unsettle the successful election.
Issue of Consideration
Whether the High Court was correct in holding that the Returning Officer had not conducted a summary inquiry under Section 36 of the Representation of the People Act, 1951 before rejecting the nomination papers of PW-4 and PW-6; and whether the defects in the electoral roll numbers of the proposers were of a substantial character warranting rejection under Section 36(4).
Final Decision
Appeal allowed; judgment of Patna High Court set aside; election petition dismissed; costs of Rs.15,000 awarded to appellant.
Law Points
- Returning Officer must conduct summary inquiry under Section 36
- not roving enquiry
- defect of substantial character cannot be ignored under Section 36(4)
- candidate/proposer bears burden to correct clerical errors under Section 33(4)
- dummy candidates cannot be basis to set aside election
