Case Note & Summary
The petitioner filed his nomination for the Mumbai North Central Parliamentary Constituency on 9 April 2009. The Returning Officer accepted the nomination and issued a receipt. At the scrutiny on 11 April 2009, it was noticed that the petitioner had left blank the space in the nomination form indicating the name of the constituency. The petitioner requested to fill in the missing words, but the Returning Officer declined and passed an order rejecting the nomination paper. The petitioner contended that the rejection was illegal and based on a minor technical ground, relying on Election Commission guidelines cautioning against rejection on flimsy grounds. He pointed out that other documents clearly showed the constituency and that the Returning Officer had filled Part IV acknowledging the constituency. The rejection was challenged by way of an election petition filed on 5 June 2009 seeking to declare the election of the returned candidate, Priya Dutt, void. Impleaded parties included the Returning Officer and Chief Election Commissioner, who were later deleted by court order dated 16 September 2010 as not necessary. The returned candidate filed a written statement contending that the omission to mention the constituency was a defect of substantial character under Section 36(2)(b) read with Section 33(1) of the Representation of the People Act, 1951, and the Returning Officer was justified in rejecting the nomination. The returned candidate further argued that guidelines or a handbook for Returning Officers cannot override the statute. The Court heard the matter and reserved judgment on 9 December 2011, pronouncing the order on 23 December 2011.
Issue of Consideration
Whether the rejection of the nomination paper for leaving blank the space for the name of the constituency is a defect of substantial character under Section 36(2)(b) read with Section 33(1) of the Representation of the People Act, 1951
Law Points
- Mandatory requirement of Section 33(1) of Representation of the People Act
- 1951 to mention constituency in nomination paper
- Rejection under Section 36(2)(b) for non-compliance
- Guidelines and instructions cannot override statutory provisions
Case Details
2011 LawText (BOM) (12) 67
ELECTION PETITION NO.1 OF 2009
Indur Kartar Chhugani (petitioner in person), P.K. Dhakephalkar (Senior Advocate), L.M. Acharya, Satyam Acharya
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Nature of Litigation
Election petition under the Representation of the People Act, 1951 to declare election void
Remedy Sought
Petitioner sought to set aside rejection of his nomination and declare election of respondent Priya Dutt void on ground of improper rejection
Filing Reason
Returning Officer rejected petitioner's nomination paper for not mentioning the constituency name
Previous Decisions
Nomination rejected by Returning Officer on 11-04-2009; no prior court decision mentioned
Issues
Whether the rejection of the nomination paper for leaving blank the space for the constituency name is a defect of substantial character under Section 36(2)(b) read with Section 33(1) of the RP Act?
Whether the Returning Officer was justified in not allowing the petitioner to cure the defect at the scrutiny?
Submissions/Arguments
Petitioner: He was a voter from the same constituency; affidavits and other documents indicated the constituency; the Assistant Returning Officer directed him on other parts; the Returning Officer rejected for a minor omission; guidelines cautioned against rejection on flimsy grounds.
Respondent: Nomination paper must contain the constituency name; omission is a defect of substantial character; guidelines cannot override the Act; under Section 36(2)(b) read with Section 33(1) the Returning Officer rightly rejected the nomination.
Judgment Excerpts
the Returning Officer filled in the part IV which is “Receipt for nomination paper and notice of scrutiny” and handed to the petitioner by clearly filling in his handwriting in the columns which are reading as under:- “A. Serial No.25 . The nomination paper of Indur Kartar Chhugani a candidate for election from the 29 Mumbai North Central Parliamentary Constituency was delivered to me at my office at 1.52 p.m on 09.04.2009 by the candidate. All nomination papers will be taken up for scrutiny at 11 a.m on 11.4.2009 at office of R.O.29 Mumbai North Central P.C Sd by the Returning Officer 9.4.2009... (All dark printing is in the hand writing of the Returning Officer).”
the Returning Officer declined to allow that request and stated that he will have to reject the nomination form.
the nomination paper of the petitioner contains a defect which is of substantial character.
once the nomination paper fails to comply with the mandate of section 33 of Representation of Peoples Act, 1951 (RP Act for short), then, there is no alternative but to reject it. No amount of guidelines or instructions can over-ride the provisions of RP Act.
Procedural History
General elections announced; nominations by 09-04-2009; petitioner filed nomination on 09-04-2009; scrutiny on 11-04-2009; rejection on same day; election petition filed on 05-06-2009 in Bombay High Court; initially impleaded Returning Officer and Chief Election Commissioner as respondents; by order dated 16-09-2010, they were deleted as not necessary; returned candidate filed written statement on 01-12-2009; hearing on 09-12-2011; judgment pronounced on 23-12-2011.
Acts & Sections
- Representation of the People Act, 1951: 33(1), 36(2)(b)
- Right to Information Act, 2005:
