SIKRI, - (1.) THE Judgment of the court was delivered by -
(2.) THIS is a petition under Article 71 of the Constitution and Section 14 of the Presidential and 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 VicePresident 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 6/08/1969. The respondent apart from meeting this 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 Sakhuja was rightly rejected on 6/08/1969, 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 Sakhuja has been wrongly rejected on the ground that the nomination paper was not delivered in person ; (2) Whether the Returning Officer had power to reject the nomination even before the date of scrutiny. 145 3-A. The relevant facts for determining these issues may now be set out. On 19th or 20/07/1969, 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 Section 4 appointing 9/08/1969, as the last date for filing nomination for election to the office of the Vice-President of India and 11/08/1969 for scrutiny of nomination papers. A number of candidates filed nomination papers and on 11/08/1969, the Returning Officer made a record of proceedings. The relevant part of the proceedings reads as follows : "I held the scrutiny of nomination papers for the Vice-Presidential Election today, the 11/08/1969, at 11 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 : JUDGEMENT_143_1_1970Html1.htm 3. I have 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. 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 subrule (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 were in addition three other papers which, though presented to be 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 proceedings was that of Dr. Ram Sharan Dass Sakhuja. It appears that the nomination 146 papers of Dr. Sakhuja, alleged to be complete in every respect, were not delivered in person either by Dr. Sakhuja or let the proposer or seconder in person to the Returning Officer but were received by him by post on 6/08/1969. 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-rule (1) of Rule 4 of the Presidential and Vice-Presidential Election Rules, 1952.
(3.) IN order to discuss the issues mentioned above it is necessary to set out the relevant statutory provisions. Under Section 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 Section 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. Ss. (2) of Section 5 prescribes that each candidate shall be nominated by a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two electors as proposer and seconder. We may assume for the the purpose of this case that the conditions laid down in Section 5(2) were complied with.;