MATHURA PRASAD Vs. AZEEM KHAN

JUDGEMENT

(1.) THIS appeal under Section 116 -A of the Representation of Peoples Act, 1951 (in short "the Act") is directed against the judgment of the High Court of Madhya Pradesh dated 17th February, 1986. Election of Legislative Assembly of the State of Madhya Pradesh was held in the month of February, 1985. One of the constituencies was No. 14 Lahar (District Bhind). The nomination papers were filed before 6th February, 1985 and the scrutiny was done or 7th February, 1985. Several persons filed their nomination papers. The nomination paper of Ramprakash was rejected by the Returning Officer in the scrutiny. The order passed by the Returning Officer rejecting the nomination paper reads as under: Candidate is not identified as per electoral roll. His representative has accepted this mistake also. Hence rejected. Advised for correction but did not correct. The candidate did not correct after advising to correct mistake. Even did not appear at the time of scrutiny to correct mistake. Hence rejected. See Section 33 (4) R. P. A.. Result of the election was declared on 5th March, 1985 and Shri Mathura Prasad Appellant declared elected.

(2.) AJEEM Khan one of the voters of the constituency filed an election petition under Section 88 of the Act challenging 'the election of Mathura Prasad on several grounds but it is not necessary to state all the grounds as the controversy in the present appeal centres round the wrongful rejection of the nomination paper of Ramprakash. The ground in this regard taken in the election petition was that the nomination paper of Ramprakash was wrongly rejected as the defect in his nomination paper was not of a substantial character. It was alleged that in the nomination paper filed by Ramprakash the column meant for stating the candidate's serial number in the electoral roll was left blank. It was thus alleged that the said defect was not of a substantial character and the nomination paper should not have been rejected in view of the provisions contained in Section 36 (4) of the Act. On the other hand the case of Mathura Prasad the elected candidate was that neither Ramprakash nor any other person on his behalf was present before the Returning Officer when the nomination paper of Ramprakash was taken up for scrutiny. At the time of scrutiny, the Returning Officer had pointed out that voter number was not mentioned in the nomination paper and Jaiprakash (R. W. 3) who was the proposer of Ramprakash had told the Returning Officer that he would inform Ramprakash regarding the above defect. The Returning Officer then put that nomination paper aside and took other nomination papers for scrutiny. Jaiprakash remained present in the hall awaiting the arrival of Ramprakash. The Returning Officer after scrutinising all the other nomination papers again called out the name of Ramprakash. As Ramprakash had not arrived till then. Jaiprakash left the hall after informing the Returning Officer that he would fetch Ramprakash. Jaiprakash left the place and went in search of Ramprakash but his efforts to search Ramprakash went in vain and he did not return back before the Returning Officer. In view of the above circumstances, the Returning Officer passed the order rejecting the nomination paper of Ramprakash under Section 33 (4) of the Act. On the pleadings of the parties Learned Single Judge of the High Court who tried the election petition framed issue No. 1 in this regard which reads as under. (i) Whether rejection of the nomination paper of Ramprakash the Returning Officer was illegal as alleged ? Both the parties lead evidence in support of their case. The Petitioner in support of his case regarding the above issue examined himself, Mitthookhan, Gourishanker and Pahalwan. By the evidence of the afore -mentioned witnesses a story was put forward that shortly before the nomination paper of Ramprakash was taken up for scrutiny. Ramprakash had gone out for passing urine. He had left behind Mitthookhan as his representative and when the nomination paper of Ramprakash was taken up for scrutiny and the defect was pointed out, Mitthookhan after informing the Returning Officer went out for calling Ramprakash. He along with Ramprakash returned back after five minutes only but the nomination paper had already been rejected by the Returning Officer. On the contrary Mathura Prasad examined himself and Jaiprakash who was not only the proposer of Ramprakash but was also his cousin Jaiprakash fully supported the case of Mathura Prasad. Learned Single Judge after analysing the evidence of both the parties arrived to the conclusion that the entire story as advanced by the ejection Petitioner and his witnesses was obviously a fabrication. He further held that such a story being fabricated it deserved to be rejected outright. He further observed as under:

(3.) AS already mentioned above the Learned Single Judge himself did not accept the story as put forward by the Petitioner Ajeem Khan, rather it was held that the entire story narrated by him was a fabrication and the same deserved to be rejected outright. The Returning Officer who was an independent witness and Jaiprakash who was a proposer of Ramprakash were believed and it was held that the entire circumstances under which the nomination paper of Ramprakash came up for scrutiny and was rejected were correct. This a perusal of the circumstances put forward by these witnesses at the tima of scrutiny and rejection of the nomination paper of Ramprakash show that Ramprakash himself was not present and even his proposer Jaiprakash after having gone to fetch Ramprakash did not return back and ultimately the Returning Officer rejected the nomination paper of Ramprakash. The order passed by the Returning Officer rejecting the nomination paper of Ramprakash clearly makes a mention that the candidate was not identified as per electoral roll His representative had accepted the mistake also and was advised for correction but did not correct the same The candidate did not correct after advising to correct the mistake. It further makes a mention that the candidate even did not appear at the time of scrutiny to correct the mistake. In the circumstances mentioned above we have no hesitation at all in holding that the Returning Officer was perfectly justified in rejecting the nomination paper of Ramprakash. It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature. It is correct that the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascertained by him on the material made available to him. He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect. However, in case neither the candidate nor his representative be present and without removing such defect in the nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the material placed before him and to remove such defect himself. We may also refer to some cases cited before us at the bar. Dalip Kumar Gon. v. Durga Prasad Single : AIR 1974 SC 2343, is the case on which strong reliance has been placed by learned Counsel for Ajeem Khan. In the above case in the column of printed nomination form meant for making a declaration of the candidates of the Scheduled Cast/Tribe contesting for a reserve seat, Abdul Hamid contesting from general constituency had not (a) filled his specific caste in the blank meant for that purpose and further (b) he had in that column left the words 'Scheduled Castes' unscored. The Returning Officer rejected the nomination papers on the ground that the failure of the candidate to delete the words 'Scheduled Castes' means that "he belongs to Schedule Caste which is not true" and consequently, the nomination papers were not filled up properly. An electoral of the constituency filed an election petition on the ground that the nomination papers of Abdul Hamid and Khatir Ali had been improperly rejected. Learned Single Judge of the High Court upheld the above rejection of nomination paper by the Returning Officer and held that the candidate's filling of these entries were on the face of it, not proper and did not comply with the requirements of law. It was further held that this defect was not trivial or technical but of a substantial character. On appeal before the Supreme Court the judgment of the High Court was set aside and it was held as under: