- (1.) THE election appeal has been filed by Pooranmal, a voter in ward No. 4 of the Merta City municipality, and it raises an important question about the duty of the Returning Officer while scrutinising the nomination form under cl. 12 of the Rajasthan Municipalities Election Order 1960 (hereinafter called 'the order of 1960')
(2.) IN the general elections of Merta City Municipality held in October 1970, there were three candidates from ward No. 4. Respondent No. 3 Shiv Prasad was one of the candidates from that ward and he had filed his nomination with the Returning Officer. Column No. 1 of that nomination paper wherein the electoral roll No. of the candidate was to be mentioned was blank. The Returning Officer on scrutiny rejected that nomination form of Shiv Prasad on the ground that its column No. 8 was blank and that it did not furnish any information about the electoral roll number of the proposed candidate. Election was held on 25th October, 1970 and after the poll respondent No. 1 Poonamchand was declared as a duly elected candidate. The election of respondent No. 1 was challenged by a voter Pooranmal on the ground that the nomination paper of Shiv Prasad was wrongly rejected by the Returning Officer and this rejection of the nomination paper of one of the proposed candidates has materially effected the result of the election. On this ground it was prayed that the election of Pooranchand be set aside. The election petition was contested by respondent No. 1, who inter alia challenged eligibility of Shiv Prasad respondent No. 3 to contest the election on the ground that he was not a voter in Merta City municipality. But this plea was rejected by the tribunal as it was found that Shiv Prasad was entered as a voter in the electoral roll of ward No. 4. This finding of fact is not challenged before this court. The tribunal however did not accept the plea of the petitioner that the nomination of Shiv Prasad was wrongly rejected and therefore the election petition was rejected. The main argument advanced by the petitioner to challenge the impugned judgment of the tribunal is that the nomination paper of a person who was otherwise eligible to contest the election cannot be rejected even if he failed to give the requisite information in column No. 8. According to the petitioner such a failure cannot be treated by the Returning Officer as a substantial error to reject the nomination paper specially when proviso to sub-cl. (2) of clause 12 of the Election Order of 1960 enjoins a duty on the Returning Officer not to reject a nomination paper of a candidate merely on the ground of incorrect description of his name or of the name of his proposer or seconder or of any other particulars relating to the candidate or his proposer or seconder, if the identity of a candidate or his proposer or seconder, as the case may be, can otherwise be established beyond reasonable doubt. This proviso according to the petitioner casts a duty on the Returning Officer to see whether the identity of a candidate whose nomination paper is under scrutiny can be established beyond reasonable doubt even though the information required to be furnished in column No. 8 of the nomination form is missing. The Election Order, 1960 prescribes a form of nomination paper which is form No. 2. This prescribed form requires the proposer or the seconder to furnish certain information regarding the candidate and it is necessary that in column No. 8 the electoral roll number of the candidate must be mentioned. This information is required to be given in the form with a view to enable the Returning Officer to find out whether the candidate fulfils the qualifications of being a voter under sec. 24 of the Rajasthan Municipalities Act 1959 or not. In the present case column No. 8 was quite blank and at the time of the scrutiny neither the proposer nor the candidate was present before the Returning Officer. The Returning Officer rejected the nomination paper because he had no information before him which could assist him to ascertain whether the candidate was really a voter in the Merta City municipality and fulfilled the requisite qualifications to offer himself as a candidate in that election. In these circumstances the Returning Officer was, according to Mr. Vyas, left with no alternative but to rejected the nomination paper of Shiv Prasad. Clause 12 of the Rajasthan Municipalities Election Order, 1960 lays down that on the date appointed for the scrutiny of the nomination paper, the candidate, his proposer and his seconder and one other person duly authorised in writing by such candidate, may attend at the time and place as is specified in the Notice for the scrutiny of nomination papers and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates whose names are included in the list of candidates posted under the provisions of clause 11. This clause empowers the Returning Officer to decide all objections which may be made and may, either on such objection or on his own notice, after such summary enquiry, if any, as he deems necessary, reject any nomination paper on any one or more of the following grounds: namely (a) that there has been a failure to comply with any of the provision of clause 8, 9 or 10; (b) that the candidate either is not qualified for being chosen to fill the seat under the provisions of secs. 26, 59 or 64 of the Act: or (c) that the proposer or seconder is not qualified to subscribe the nomination paper under clause 8; or (d) that in case the election is solely for a seat or seats reserved for the Scheduled Castes or the Scheduled Tribes the candidate does not belong to that caste or tribe. A proviso is, however, added to this clause which circumscribes the power of the Returning Officer to reject the nomination paper in the circumstance that if the identity of a candidate or his proposer or seconder can be established beyond reasonable doubt, he would not reject the nomination paper merely on the ground of incorrect description of his name or of the name of his proposer or seconder, or of any other particulars relating to the candidate or his proposer or seconder. It may be mentioned here that the nomination paper filed by respondent No. 3 was not in accordance with clause 8 of the said Order because it did not contain any information about the electoral roll number of the candidate as column No. 8 thereof was quite blank. It is conceded by learned counsel for the petitioner appellant that if no proviso had been attached to cl. 12 of the Order the Returning Officer was well within the bounds to reject such a nomination paper which did not contain any information in column 8 under sub-clause 12 (1) of the Order, but his contention is that the proviso limits the power of the Returning Officer to reject such a defective nomination paper as it casts a duty on the Returning Officer to launch an enquiry to get the identity of the candidate established, and if after such an enquiry the identity of the candidate is not established, it is only then that the nomination paper could be rejected by him. This argument of the learned counsel for the petitioner raises an important question about the interpretation and scope of the first proviso to clause 12. Clause 12 (1) of the Order is as follows : - "12 (l) Scrutiny of nomination papers: - On the date appointed for the scrutiny of nomination under para (a) of sub-clause (\) of clause 7, the candidate, one proposer and one seconder of candidate and one other person for each candidate, duly authorised in writing by such candidate, may attend at the time and place as is specified in the Notice for the scrutiny of nomination papers and the Returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates whose names are included in the list of candidates posted under the provisions of cl. 11. " Proviso (1) to this clause on which the entire argument of Mr. Mehta is based reads as follows: - "provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name or of the name of his proposer or seconder, or of any other particulars relating to the candidate or his proposer or seconder, if the identity of the candidate or his proposer or seconder, as the case may be, can otherwise be established beyond reasonable doubt. "
(3.) IF this proviso is carefully perused then it leaves no room for doubt that a candidate, his proposer, or seconder or a nominee appointed for that purpose present at the time of the scrutiny, has a right to get the identity of a candidate or of his proposer or seconder established before the Returning Officer if the name of a candidate his proposer or seconder or any other particulars relating to the candidate, his proposer is erroneously supplied in the nomination form. The effect of this proviso, in my opinion, is to confer a right on a candidate, his proposer or seconder or a nominee of a candidate to get the identity of the candidate established before the Returning Officer in spite of the erroneous description of the name or other particulars of the candidate given in the nomination form. The language of the proviso does not, in any manner, cast a duty on the Returning Officer to launch an enquiry to see whether the candidate is eligible to contest the election or not. As a matter of fact the information required in col. No. 8 of the nomination form enables the Returning Officer to find out by referring to the relevant electoral roll of the municipality whether the candidate does not fulfil the qualifications of becoming a candidate as prescribed by sec. 24 of the Act, IF no information is supplied to the Returning Officer regarding the electoral roll number of the candidate and if the candidate or his proposer or seconder or any other nominated representative of the candidate is absent at the time of the scrutiny then the proviso does not cast any duty on the Returning Officer to suo moto initiate an enquiry and find out by referring the voluminous electoral roll of the entire municipality, if the candidate is a voter in any of the wards of the municipality or not. IF however any one present before the Returning Officer offers his assistance to the Returning Officer to the identity of the candidate established before him then the mandate contained in the proviso may be construed to mean that the Returning Officer shall afford opportunity to such a person to establish the identity of the candidate and if the identity of the candidate is established beyond doubt and he is eligible to contest the election then in that event the Returning Officer shall not reject the nomination paper on a technical plea that the nomination form was not correctly filled in as it did not contain an information which was necessary to establish the identity of the candidate. After the identity of the candidate is established then the defect that column No. 8 of the nomination form was blank loses the character of being a defect of substantial nature. Under sec. 24 of the Act a person has a right to contest the election to fill a seat on a Board if he is an elector in any of the wards of the municipality. This provision allows any elector in the municipality to offer himself as a candidate for any of the wards of that municipality. It is not necessary that he should be a voter in the ward from where he is seeking his election. IF the contention of the learned counsel for the appellant that the Returning Officer should suo moto initiate an enquiry in the absence of the information required to be furnished in column No. 8 of the nomination form to find out if the candidate is a voter in the municipality or not is accepted then the Returning Officer shall be required to go through the entire electoral roll of the municipality which in big towns may consume not only a day but week of the Returning Officer to scrutinise one nomination paper Such a duty has not been cast on the Returning Officer under proviso (l) to clause 12 and in the absence of any information to be supplied in column No. 8 of the nomination form the Returning Officer is competent to reject the nomination paper as it suffers from a defect of a substantial character. Erroneous description or information may in some cases provide a clue to the Returning Officer to spot the name of the candidate in the electoral roll but the total absence of the information required to be furnished in column No. 8 stands on a different footing. The blank column No. 8 lends different colour to the nomination paper and the total absence of the information renders it a defect of substantial character. Learned counsel for the petitioner urged that in column No. 7 of the nomination paper the address of the candidate was given and it provided a clue to the Returning Officer to find out the name of the candidate in the electoral roil of mohalla Chhipa-ka-bas which is part of ward No. IV. I regret I cannot accept this contention of Mr. Mehta because the electoral roll of the ward sometimes contains more than thousand voters. It is not easy to find out the name of a voter in an electoral roll unless the ward, serial number of the part of the roll and the serial number of the entry of a person is supplied by some body to the Returning Officer. "electoral Roll Number" has been defined in the Rajasthan Municipalities Election Order 1960 as follows : - " (iv) 'electoral Roll Number' of a person means : (a) the serial number of the entry in the electoral roll in respect of that person, (b) the serial number of the part of the electoral roll in which such entry occurs, and (c) the name of the ward to which the electoral roll relates". Sometimes the absence of one of the aforesaid requirements make it difficult to spot out the name of a voter entered in the electoral roll correctly because the roll may contain thousands of names as voters and if the serial number is not exactly known, it is not easy for one to find out the name of a voter in the electoral roll. It is not expected from a Returning Officer that a candidate who has not cared to supply the requisite information in column No. 8 of the nomination form and who remained absent at the time of scrutiny and his proposer and seconder also did not care to be present on the occasion of scrutiny to make an elaborate enquiry to find out his name before rejecting the nomination paper. This type of duty cannot be read in proviso 1 to clause 12 of Election Order of 1960. In this view of the matter I am of opinion that the Returning Officer was left with no alternative but to reject the nomination form of Shiv Prasad as it suffered from a defect which can safely be called a defect of substantial character. The appeal is, therefore, dismissed with cost. ;