JAGAT NARAYAN, J. - (1.) THIS is an application under Art. 226 of the Constitution by one Hardev against a decision of the Election Tribunal setting aside his election to the office of Sarpanch, Indali Panchayat and ordering fresh election, on the ground that the nomination paper of Vidyadhar respondent was wrongly rejected by the Returning Officer. The petition has been contested on behalf of Vidyadhar.
(2.) VIDYADHAR filed his nomination paper for the office of Sarpanch in form No. I appended to the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960. The form was admittedly filled up properly except for the fact that declaration No. (3) was not properly made. This declaration runs as follows: - "i do/do not belong to the scheduled caste/scheduled tribe. " VIDYADHAR drew an oblique line scoring out the whole of this declaration. This oblique line ran across the word "scheduled" of the phrase "scheduled tribe" as follows : - Esa vuqlwfpr tkfr@vuqlwfpr tutkfr dk lnl; gww@ugha gwwa . The Returning Officer rejected the nomination paper on the ground that it could not be ascertained From the nomination paper as to whether Vidyadhar belonged to the scheduled caste or not. The Election Tribunal was of the opinion that the defect in the nomination paper was not of a substantial character and the Returning Officer erred in rejecting the nomination paper on account of it. He accordingly set aside the election of Hardev and ordered fresh election. On behalf of the applicant two contentions have been raised. The first contention is that under the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 a nomination paper is liable to be rejected on account of any defect in filling it howsoever trivial in character it may be. The rules which are relevant in this connection are rules 16 and 18 (3) which run as follows: - R. 16 Presentation of nomination papers.- (1) On or before the day appointed under subclause (a) of clause (ii) of sub-rule (i) of rule 14 for the presentation of nomination papers, any person qualified under sec. 11 for election as a panch and desiring to seek such election, hereafter in this chapter referred to as a candidate, shall deliver to the Returning Officer his nomination paper in Form I duly filled in and signed by the candidate. (2) Any nomination paper not delivered as provided in sub-rule (1) shall be rejected. R. 18 (3) "scrutiny of nomination papers.- (3) The Returning Officer shall decide all such objections and may either on the basis of such objection or on his own motion, reject any nomi nation paper on any of the following ground, namely: - (a) that the candidate is not qualified or is dis qualified for election; (b) that he is not identical with the person whose number or name on the voters' list is stated in the nomination paper to be the number or name of the candidate; (c) that his signature is not genuine or has been obtained by fraud, coercion or undue influence, (d) that there has been a failure in complying with the provisions of rule 16. On behalf of the applicant reliance was placed on the following observations made by their Lordships of the Supreme Court in Beru Ram Vs. Smt. Prasanni (1): - "whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence. " It was argued firstly that sub-rule (2) provided a penalty for every non-compliance with the provisions of sub-rule (1) and secondly that even if sub-rule (2) of rule 16 was not applicable to a defect in filling the form then rule 18 (3) (d) provided a penalty for such a defect to which the above observation is applicable. So far as rule 16 (2) is concerned I am of the opinion that it only provides for a penalty for the defect of not delivering the nomination paper as provided in sub-rule (1) namely on or before the day appointed under sub-clause (a) of clause (ii) of sub-rule (1) of rule 14 for the presentation of nomination papers. It does not apply to other defects like defect in filling up form No. 1. So far as rule 18 (3) (d) is concerned it cannot be regarded as a provision prescribing a statutory penalty for not complying with the provisions of rule 16. It only gives a discretion to the Returning Officer to reject a nomination paper for a failure in complying with the provisions of rule 16. This discretion has to be exercised by the Returning Officer judicially, that is having regard to the nature of the provision. So far as the filling of a form under rule 16 is concerned it is a procedural provision. As was observed by their Lordships of the Supreme Court in Voluswami Vs. Raja Nainar (2), procedural enactments should be construed liberally and in such a manner as to render the enforcement of substantive rights effective. It is clear therefore that the Returning Officer is not entitled to reject a nomination paper under rule 18 (3) (d) for a defect of trivial nature so as to defeat the statutory right of an elector to stand as a candidate for election. I accordingly hold that a nomination paper cannot be rejected under rule 18 (3) (d) unless the defect in the nomination paper is of a substantial character. In Baru Ram' case (1) referred to above the candidate was an elector of a different constituency but he had not filed a copy of the electoral roll of that constituency as required by sec. 33 (5) of the Representation of the People Act 1951. The nomination paper of the candidate was rejected by the Returning Officer on this ground. Their Lordships of the Supreme Court held that the rejection was proper. The decision turned on the question as to whether the defect in the nomination paper was of a substantial character within the meaning of sec. 36 (4) of that Act. Their Lordships held that the defect was of a substantial character. The second contention on behalf of the applicant is that the defect in the nomination paper of Vidyadhar respondent was of a substantial character. The argument is that under sec. 9 of the Rajasthan Panchayat Act persons belonging to the scheduled castes and tribes are to be co-opted in the contingencies mentioned therein and unless the candidate fills the third declaration in the nomination paper properly indicating whether or not they belong to the scheduled castes or tribes it is not possible to find out whether any person belonging to those castes or tribes is to be co-opted. A perusal of the rules however goes to show that the Returning Officer is required to prepare and certify a return of the result in Form No. IV under rub 41. This form contains colums for indicating the sex as well as caste of the successful candidate. It is as a result of the perusal of this return that the Sarpanch decides whether the co-option of a Panch or Panchas is necessary under sec. 9 as laid down in R. 50. Neither the sex nor the caste of the candidate is contained in the nomination paper. The sex and caste are contained in the voters list and it is from that that the sex and caste of the candidate are noted in from IV. Under sec. 9 women are also to be co-opted it two of them have not been elected. There is no column for indicating the sex of the candidate in form No. I. It is therefore not correct to say that unless the candidate fills declaration No. 3 in the nomination paper correctly any difficulty would be created in finding out whether any co-option is to be made. As has been mentioned above this duty is cast on the Sarpanch which has to be discharged by him by referring to form No. IV. In form No. IV there is no column for indicating whether or not the elected candidate belongs to a scheduled caste or scheduled tribe. I accordingly find that there is no force in the argument put forward on behalf of the applicant that unless declaration No. 3 is properly filled by the candidate there will be any difficulty at a subsequent stage in finding out whether co-option is necessary. Further so far as the election itself is concerned a person belonging to the scheduled caste or scheduled tribe has the same right of being elected as persons not belonging to them. There is no reserved seat in Panchayats. Failure to indicate in the nomination paper whether or not a candidate belongs to any of the scheduled castes or tribes is therefore of no consequence. At the time of co-option another nomination paper has to be filed in form No. VI in which the sex as well as the caste of the candidate are to be filled in. The qualification of the proposed candidate for co-option is decided on the basis of that form. I accordingly hold that failure to fill in declaration No. 3 cannot be regarded as a defect of substantial character. I therefore find that there is no force in this writ petition and dismiss it. In the circumstances of the case, I direct that parties shall bear their own costs. . ;