PURUSHOTTAMDAS Vs. COLLECTOR GIRD
HIGH COURT OF MADHYA PRADESH
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Dixit, J. -
(1.) THE facts of this application under Art. 226 of the Constitution of India for the issue of a writ of certiorari or some other appropriate writ or a direction are that an election is to be held on 10 -2 -1955 for the purpose of constituting the Dabra Municipal Committee. The petitioner and the opponent filed nomination papers for being elected from Circle No. 2. The nomination papers were scrutinized on the appointed day by the Election Officer () The nomination paper of Purshottam Dass was accepted while that of Badri Prasad was rejected, on the ground that as required by Rule 26(1) of the Madhya Bharat Municipal Election Rules, 1954 Badri Prasad, who presented his nomination paper did not sign it before the Election Officer while presenting the paper.
Badri Prasad then presented ft petition under Rule 34 to the Collector Gird i.e., to the Returning Officer appointed for the challenging the correctness of the decision of the Election Officer rejecting his nomination paper. The Returning Officer while holding that the direction contained in Rule 26(1) about the signing of the nomination paper by the person presenting it at the time of presentation was not complied with took the view that the omission to sign was a technical defect which did not in validate the nomination paper. The Returning Officer accordingly accepted the nomination paper of Badri Prasad.
By this petition under Article 226 of the Constitution Purshottam Dass prays for the issue of a suitable writ or a direction quashing the order of the Returning Officer with regard to the acceptance of Badri Prasad's nomination.
(2.) THERE is no dispute as to facts. The question for determination is whether the direction in Rule 26(1) that the person presenting the nomination paper shall sign it in the presence of the Election Officer at the time of the presentation is absolute and mandatory, so as to invalidate the nomination paper if it is not complied with, or whether it is merely directory. Before examining the relevant rules, it is necessary to state that there is no rule of universal application for determining whether a provision in a statute is absolute or directory. The question in each case has to be decided on a consideration of the scope and object of the provision, its nature and considerations of justice and convenience.
At the same time it is well settled that where a statute creates or grants a new right, privilege or immunity and regulates the manner of its exercise, it must be construed as mandatory. (See Maxwell's Interpretation of Statutes, 9th Edn. Pages 373 and 374; Crawford's Statutory Construction, page 526; and - - 'Ajit Kumar Sen v. States of West Bengal', : AIR 1954 Cal 49 (A). Now it cannot be denied that the right to hold an election, to stand for an election and to be elected as a member of a Municipal Committee are all rights created by the Madhya Bharat Municipal Act 1954 and the rules made thereunder.
They are not common law rights existing apart from the statutory provisions. It follows, therefore, that the provisions of the Act and the rules made thereunder relating to the constitution of the Municipal Committee must be strictly followed and the right to stand for an election and to present a nomination paper can be exercised only in the manner and within the time prescribed by the Act and the rules. The material rules are 26 and 33. Clauses 1 and 2 of Rule 26 are as follows:
Rule 33 deals with the scrutiny of nominations and says that the Election Officer shall examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objections or on his own motion, after such summary inquiry if any, as he thinks necessary, refuse any nomination on the grounds stated therein. One of the grounds on which a nomination can be rejected is that there has been a failure to comply fully with any of the provisions of rule 26 or 29. Clause 3 of Rule 33 lays down that the Election Officer shall not reject any nomination paper on the ground of "any slight technical defect".
The language of Rule 26 with regard to the presentation of nomination paper is clear and un ambiguous. It says that the nomination paper shall be delivered to the Election Officer either by the candidate in person or by his proposer or second at the date time and place specified in that behalf and the person presenting the paper shall sign it as an act of presentation indicating clearly whether he is the candidate or the proposer or the seconder. The direction in the second para of clause 1 of Rule 26 reads as follows:
(3.) IT is clear that under Rule 26 the requirements for a valid presentation of a nomination paper are firstly that the physical act of delivering the nomination paper to the Election Officer must be done either by the candidate in person or by his proposer or the seconder during the appointed hours and at the place specified in that behalf and secondly that the nomination paper must be signed by the person delivering it in the presence of the Election Officer as an act of his presentation. If, therefore, the nomination paper is not signed by the person delivering it in the presence of the Election Officer and at the time of the presentation, then there can be no valid presentation of the nomination paper.
The signing of the nomination paper in the manner indicated above being one of the acts of presentation, it cannot be maintained that the neglect of the requirement is a mere technical defect which can be cured afterwards. In holding that the omission on the part of the opponent Badri Prasad to sign the nomination paper in the presence of the Election Officer while delivering it to him is a technical defect, which could be cured by his subsequent signing, the Returning Officer has altogether missed the point that the signature has to be made at the time of the physical act of the delivery of nomination paper to the Election Officer.
The physical act of the delivery of a particular nomination paper having been done once, cannot be re -enacted. No doubt a second nomination paper could have been delivered within the prescribed time and also signed in the manner prescribed by Rule 26. But if the particular nomination paper was not valid on the last day fixed for its receipt, the signature subsequently put after that date could not make it valid retrospectively. To so hold would mean that a proper and valid nomination paper is filed or tendered only on the date on which the signature is so allowed to be made and such a nomination paper would be out of time.
The object of requiring the person delivering the nomination paper to sign it in the presence of the Election Officer at the time of delivery is clearly to ensure that the person delivering it, is one of the persons who has subscribed as a candidate or a proposer or a seconder. The Election Officer is required to satisfy himself on this point in the mode prescribed by Rule 26, namely, by asking the person delivering the nomination paper to sign it in his presence indicating whether he is the subscribing candidate or a proposer or a seconder. This mode of satisfaction having been prescribed as a requirement for a valid nomination, it is not open to the Election Officer to satisfy himself in any other manner as to the identity of the person presenting the nomination paper and certify that it was presented by the candidate or the proposer or the seconder as the case may be.
The rule prescribes the essentials of a valid presentation, which have to be followed. I am, therefore, of the opinion that the decision of the Election Officer rejecting Badri Prasad's nomination paper on the ground of failure to comply with Rule 26(1) was right and the Returning Officer had no power to accept a nomination paper which was not validly presented.;
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