SHAH, - (1.) THE following Judgment of the court was delivered by :
(2.) AT the general elections held in February 1967 the appellant polled the largest number of votes and was declared elected to the Punjab Vidhan Sabha from the Zira Constituency. The first respondent S. Mohinder Singh, who was a candidate at the election, applied to the High court of Punjab for setting aside the election of the appellant on the ground that the nomination of the appellant who was not a voter in the Zira Constituency was improperly accepted by the Returning Officer, for the appellant had failed to file before the scrutiny a copy of the electoral roll or the relevant part thereof or a certified copy of the relevant entries of the poll pertaining to the constituency to which he belonged, and that the result of the election to the Zira Constituency insofar as it concerned the appellant was materially affected by improper acceptance of his nomination. The High court upheld the contention and set aside the election of the appellant and declared the election of the appellant void under s. 100(1)(d)(1) of the Representation of the People Act, 1951. Against that order the appellant has appealed to this court. The name of the appellant is included as a voter in the Gid- derbha Constituency, and his name is not included in the list of' electors in the Zira Constituency. But on that account he was not disqualified from standing for election from the Zira Constituency. The validity of the election of the appellant was challenged only on the (,round that the appellant had failed to produce before the scrutiny of nomination papers, the electoral roll, or a certified copy of the relevant entries in that roll concerning him. By sub-s. (4) of s. 33 of the Act the returning officer is directed to satisfy himself when the nomination paper is prescribed that the names and electoral numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. Ss. (5) provides that where the candidate is an elector of a different constituency a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination papers, be produced before the returning officer at the time of scrutiny. The appellant not being an elector in the Zira Constituency, he had to produce either with the nomination paper or at the time of scrutiny the relevant part of the electoral roll, or a certified copy of the relevant entries in the electoral roll. Section 36 deals with the scrutiny of nomination. By sub-s. (2) of s. 36 it is provided : `(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 objections, 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 : Aticles 84, 102, 173 and 191. (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) ........................................ By sub-s. (4) the returning officer is enjoined not to reject any nomination paper on the ground of any defect which is not of a substantial character. Ss. (7) of S. 36 provides : `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.`
(3.) THIS court in Sri Baru Ram v. Shrimati Prasanni & Ors.(1) observed at p. 141 8 : `Sub-section (5) of s. 33 deals with the stage of the scrutiny of the nomination papers and it provides that where a candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or the relevant part thereof or a certified copy of the relevant entry of such roll shall, unless it is filed along with the nomination paper, be produced before the returning officer at the time of the scrutiny. It is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different constituency and for that purpose the statute has provided the made of proof. Section 36, sub-s. (7) lays down that the certified copies which are required to. be produced under s. 33 (5) shall be conclusive evidence of the fact that the person referred to. in the relevant entry is an elector of that constituency. In other words, the scheme of the Act appears to be that where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive evidence of the said fact.` The appellant concedes ,that with his nomination paper he did not produce the electoral roll or a copy of the relevant part thereof of the Gidderbha Constituency. He, however, pleaded that at the time of the scrutiny of the nomination papers he had produced before the returning officer copies of the electoral roll. and had requested that officer to keep. the copies of the roll on his file if he needed them, and the returning officer had said that he did not need the copies of the electoral roll. This case was not set up by the appellant in his reply to the election petition. The returning officer Sher Singh Sindhu was summoned to appear before the High court to produce certain documents in his custody. Sher Singh Sindhu personally appeared in court and tendered the documents called for, but the appellant did not ask the Trial Judge to administer him oath and to examine him as a witness. There is no written record about the production of the electoral roll before the returning officer. In the order passed by ,the returning officer dated 21/01/1987, the returning officer has referred to the production of a certificate, but not to the production of the electoral roll'. We therefore agree with the High court that the case set up by the appellant that he had produced copies of the electoral roll or relevant parts thereof before the returning officer at the time of the scrutiny of nomination papers cannot be accepted as true.;