MODI, J. - (1.) THIS is an election appeal under Sec. 116-A of the Representation of the People Act (No. 43) of 1951 (hereinafter called the Act ).
(2.) THE appellant Shri Balji was a candidate for election to the House of the People from the Jhunjhunu Parliamentary Constituency at the general election held in January, 1962. THE respondent Shri Murarka Radheyshyam Ramkumar was declared successful at this election. THEre were more than a dozen other candidates at the election in question, but we are not concerned with them. THE appellant's nomination paper was rejected by the Returning Officer Shri V. I. Rajagopal P. W. 2 (Collector, Jhunjhunu) at the time of the scrutiny which was held on the 22nd January, 1962. A copy of the order of rejection of the nomination paper is Ex. 13. It shows that neither the candidate Shri Balji nor his proposer Abdul Gani nor any election agent or representative on his behalf was present at the time of the scrutiny. THE reason for the rejection was stated to be that the proposer Abdul Gani had given his electoral roll number as 105, Ward No. 13 (Nawalgarh) ; but the name of Atmaram son of Ramgopal appeared in the relevant Electoral roll against the said particular and wrong particulars given by the proposer constituted a defect of a substantial nature. THE order also shows that all present at the time of the scrutiny were given full opportunity to examine the nomination form before the final decision was given. Aggrieved by this decision, the appellant filed an election petition to the Election Commission of India, New Delhi, on the 13th April, 1962, which was referred for disposal to Shri Roop Singh Rathore, District Judge, Jhunjhunu as the Election Tribunal. The principal contentions raised by the appellant election petitioner in his application are: (1) That the nomination paper was filed by the candidate and his proposer before the Returning Officer on the 19th January, 1962, at 2-58 P. M. and was received by the Assistant Returning Officer Shri K. C. Jain (vide receipt Ex. 2) without any objection and at that time the numbers on the electoral roll both of the candidate and the proposer had been checked up ; (2) that in the receipt Ex. 2 which was given by the said Assistant Returning Officer to the appellant, it was mentioned that the scrutiny of the nomination papers would take place at 2-58 on the 22nd January, 1962, which led the petitioner and the proposer to believe that the scrutiny of his nomination form would not take place before the time so indicated, and yet the Returning Officer held the scrutiny at 11 A. M. on the 22nd January, 1962, behind the back of the petitioner and his proposer, and that he had done so deliberately to help the respondent Shri Murarka who was a Congress candidate, and (3) That the Returning Officer had fallen into a serious error of law in holding that the supply of wrong electoral number from a wrong electoral roll was a defect of a substantial character. The appellant's version on this aspect of the case was that the proposer was a resident in the town of Nawalgarh and that the particulars which were given in the nomination form in the shape of his electoral roll number were inadvertently given from the municipal electoral roll for the town of Nawalgarh (Ex. 4) inasmuch as his number in that electoral roll was 105 in Ward No. 13 thereof. It is submitted hat the correct electoral roll number of the appellant's proposer Abdul Gani in the relevant (Nawalgarh) Assembly Constituency electoral roll was No. 96 in Ward No. 15. It may be conveniently pointed out here that this number should have been mentioned in the nomination paper as No. 96 Part 57 of the Nawalgarh Assembly Constituency. Be that as it may, the position taken up by the election petitioner was and is that this defect was of a clerical nature and was of a non-substantial character and, therefore, should not have been allowed to prevail by the Returning Officer. It is further stressed in this connection that if the scrutiny of the appellant's nomination paper had not been made before the time noted down in the receipt Ex. 2 which had been given to him in lieu of the presentation of his nomination paper, it should have been possible for him to establish the identity of hi|s proposer by leading the necessary evidence and that the rejection of his nomination paper, therefore; before the time so fixed had caused him grave prejudice. It is necessary to mention two other facts to complete the narration of events. The first is that according to the petitioner he and his proposer had reached the office of the Returning Officer at about 1-30 p. m. on the 22-1-1962, and having come to know that his nomination paper had been rejected by him, he made efforts to find out the reason why his nomination paper had been rejected. The petitioner's grievance obviously is that on that very day he had made one or more applications for obtaining a copy of the order but without any success. Consequently he sent a telegram to the Election Commission (See Ex. 12) on the 25th January, 1962, complaining that the Returning Officer had illegally rejected his nomination paper and had also refused to supply a copy of his order even on double fees and he further sent an application (Sec. copy Ex. 11) dated the 5th February, 1962, also to that very authority wherein he complained more or less in the same strain; but further submitted that he had filed an application duly stamped for supply of copies of the relevant documents but it was returned to him. The appellant also submitted that he feared foul play. The other fact is that the appellant had also filed his nomination paper for a seat in the House of People from the Sikar constituency which he admittedly withdrew later on. The appellant election«petitioner, therefore, prayed that the rejection of his nomination paper was illegal and consequently the election of the respondent be declared void. The respondent completely traversed the allegations made in the election petition. Now it has been found by the Tribunal that the nomination paper of Shri Balji was received by the Returning Officer on the 19th January, 1962, at 2-58 P. M. and the receipt (Ex. 2) for the same was executed by the Assistant Returning Officer Shri K. C. Jain and that in that receipt it was mentioned that the time for the scrutiny of the nomination paper was 2-58 (P. M.) on the 22nd January, 1962. The Election Tribunal, however, further found that the mention of the time of the scrutiny in the nomination paper as 2-58 P. M. in this receipt was a pure and simple accidental mistake inasmuch as the appellant's own witness Shri Jain had said so. It was further found that the appellant's assertion at the trial that Shri K. C. Jain had also orally told him that the scrutiny would take place at 2-58 P. M. on the 22nd January, 1962, was not at all substantiated by the evidence either of Shri K. C. Jain or the other witnesses of the appellant. The Tribunal also found that it had not been satisfactorily proved that the appellant Balji had reached the office of the Returning Officer on the 22nd January, 1962, at 1-30 P. M. On the question whether the Assistant Returning Officer had compared the electoral number of the appellant's proposer with the correct and the relevant electoral roll and whether he was satisfied as to the correctness thereof, the finding of the Tribunal is that the Assistant Returning Officer had no doubt tried to check the name and the electoral roll number of the proposer Abdul Gani; but this comparison had somehow been made not with respect to the entries in the Legislative Assembly Electoral roll but with the Municipal Electoral roll for the town of Nawalgarh, which had been placed on his behalf before the Assistant Returning Officer, and this is how that officer did not notice the discrepancy. On the last and the most important question as to whether the defect with respect to the wrong mention of the electoral roll number of the proposer in the nomination form was a defect of a substantial nature or not, the Tribunal found that it was not a defect which was merely of a clerical or technical nature but was a defect of a substantial nature justifying the rejection of the nomination paper of the election-petitioner. In coming to this conclusion, the Tribunal further found that the story trotted out by the petitioner and some of his witnesses that Abdul Gani had been traced before the Returning Officer at the time of the scrutiny and that his identity had been fixed with reference to the assembly electoral roll could not be accepted as correct. These are in brief the findings of the Tribunal which have been attacked before us in this appeal. Now, the most important question which emerges for determination in this appeal is whether the wrong entry as to the electoral roll number of the proposer in the nomination paper is a defect which is merely of a technical or clerical nature or is of a substantial character, for we might state at once that if the defect was of an unsubstantial nature, there would be no justification for the Returning Officer to have rejected it and in support of this view, it should be sufficient to refer to sub-sec. (4) of sec. 36 of the Act, which reads as follows : "the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. " But before we address ourselves to this question, we consider it proper to dispose of another objection raised on behalf of the appellant, that, having regard to the mention that was made in the receipt that the nomination papers would be scrutinised by the returning officer at 2-58 P. M, on the 22nd January, 1962, the said officer had no business to scrutinise his nomination paper before that time, and that this has caused him a serious prejudice from which he had and has a right to be saved and which must, therefore, result in the setting aside of this election. The mainstay of learned counsel's argument in this connection was sec. 35 which reads as follows: "the returning officer shall, on receiving the nomination paper under sub-sec. (1) of sec. 33, inform the person or persons delivering the same, of the date, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer. " The argument was that sec. 35 places a duty on the returning officer after a nomination paper has been presented to and received by him to inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of the nominations, and that that being so, the returning officer could not have made a scrutiny of the appellant's nomination paper before the time and the date or save at the place so specified. The argument may be attractive at first sight; but, in our opinion, is devoid of substance. This would be clear from the sections which precede sec. 35 in Part V of the Act. Part V deals with conduct of elections, and begins with sec. 30. This section contemplates that after a notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint: (a) the last date for making nominations, (b) the date for the scrutiny of nominations, (c) the last date for the withdrawal of candidatures, (d) the date or dates on which a poll shall be taken, and (e) the date before which the election shall be completed. and lays down certain points of time for all these stages of an election, which it is not necessary for our purposes to reiterate here and consequently we refrain from doing so. Sec. 31 then is in these terms: "on the issue of a notification under sec. 30, the returning officer for the constituency shall give public notice of the intended election in such form and manner as may be prescribed, inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered. " Section 32 then lays down that: "any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act. " Sec. 33 deals with the requirements of a valid nomination as also the presentation thereof. Sub-sec. (1) of this section reads as follows: "on or before the date appointed under clause (a) of sec. 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under sec. 31 a nomina tion paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Sub-sec. (4) of this section reads as follows: "on the presentation of a nomination paper the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls; Provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral rolls ; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. " Then follows sec. 36 which deals with the scrutiny of nomination papers. But to this, we propose to refer at the proper place. Suffice it to mention here that this section enjoins the rejection of a nomination paper where, among other matters, there has been a failure to comply with any of the provision of sec. 33. We must at this place also invite attention to the Conduct of Election Rules 1961 (hereinafter called the Rules ). Rule 3 of these rules reads as follows: "the public notice of an intended election referred to in sec. 31 shall be in Form 1 and shall, subject to any directions of the Election Commission, be published in such manner as the returning officer thinks fit. " These rules have obviously been made under sec. 169 of the Act. Form 1 as prescribed in these rules reads as follows: "form 1 Notice of Election (See rule 3) Election to. . . . . . . . . Notice is hereby given that - (1) an election is to be held of. . . . . . . . . . . . . . . . . . (2) forms of nomination paper may be obtained at the offices of the officers specified in paragraph 6 between the hours of. . . . . . . . . and. . . . . . from. . . . . . . . . . . . . . . . . . (date) to. . . . . . . . . (date ). . . . . . . . . . . . (3) nomination papers may be delivered between the hours of 11 in the morning and 3 in the afternoon by a candidate or his proposer to any of the officers specified in paragraph 6 at any of the officers specified in paragraph 6 at his office on any day not latter than the. . . . . . . . . day of (4) the nomination papers will be taken up for scrutiny at. . . . . . . . . (hours) on. . . . . . . . . (date) at. . . . . . . . . (place ). (5) notice of withdrawal of candidature may be delivered by a candidate, his proposer or election agent to anyone of the officers specified in paragraph 6 at his office before 3 p. m. on. . . . . . (6) nomination papers and notices of withdrawal may be delivered to any of the officers specified in the first column of the following table at his office specified in the corresponding entry in the second column of this table : TABLE Designation of Officer 1 Location of Office 2 1. Returning Officer. 2. Assistant Returning Officer. (7) in the event of the election contested, the roll will take place on. . . . . . . . . . . . between the hours of. . . . . . . . . . . . and. . . . . . . . . . . . . . . . . . . . Place. . . . . . . . . . . . . Returning Officer. . . . . . . . . . . Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constituency "here appropriate particulars of the election are to be inserted. " We should invite particular attention to paragraph (4) of this form according to which time for the scrutiny of the nomination papers is required to be fixed. Now, it is not disputed before us that a public notice (Ex. A-l) under rule 3 of the Rules which in its turn refers to sec. 31 was issued and duly published by the returning officer in this case on the 13th January, 1962 as under: "form 1 Notice of Election (See Rule 3) Election to House of the People Notice is hereby given that: - (1) an election is to be held of a member to fill the seat allotted to the Jhunjhunu constituency of the House of the People. (2) forms of nomination paper may be obtained at the offices of the officers specified in paragraph 6 between the hours of 11 A. M. to 2 P. M. and from 13th January, 1962 (date) to 20th January, 1962 (date ). (3) nomination papers may be delivered between the hours of 11 in the morning and 3 in the afternoon by a candidate or his proposer to any of the officers specified in paragraph 6 at his office on any day not later than the 20th day of January, 1962. (4) the nomination papers will be taken up for scrutiny at 11 A. M. (hours) on 22nd January, (date) 1962 at Collectorate-Jhunjhunu (Place ). (5) notice of withdrawal of candidature may be delivered by candidate, his proposer or election agent to any one of the officers specified in paragraph 6 at his office before 3 P. M. on 25th January, 1962. (6) nomination papers and notice of withdrawal may be delivered to any one of the officers specified in the first column of the following table specified in the corresponding entry in the second column of the table: TABLE Designation of the Officer 1 Location of Office 2 1. Returning Officer Dist. Electoral Officer, Dist. Magistrate, Collectorate, Jhunjhunu 2. Asstt. Returning Officer Dy. Dist. Electoral Officer, Jhunjhunu Collectorate, Jhunjhunu (7) In the event of the election being contested, the poll will take place on 21st, 23rd and 25the of February 1962 (dates) between the hours of 8 A. M. and 5 P. M. Date: 13-1-62 Place: Jhunjhunu Sd/- V. I, Rajagopal Returning Officer J. P. C. Jhunjhunu Sd/- K. S. Jain (Seal) Returning Officer Parliamentary Constituency. " It will thus be seen that it was clearly mentioned in this public notice dated the 13th January, 1962 that the nomination papers will be taken up for scrutiny at 11 A. M. on the 22nd January, 1962, at the Collectorate, Jhunjhunu.
(3.) NOW it is in this setting that we have to see whether the appellant could have any legitimate grievance that he had been misled by the time for scrutiny mentioned in his receipt Ex. 2 dated the 19th January, 1962. Evidence has been Jed on behalf of the respondent to show that this notice had been read out to the appellant by the respondent's witness Sitaram Parasrampuria about the 15th or 16th January, 1962, when he had gone to the office of the Collector, Jhunjhunu to collect certain forms etc. for the respondent. Even if we were to reject this evidence as untrue, we find it impossible to hold that the appellant was not aware of this notice. Indeed we must hold that he was very much aware of it because otherwise one could hardly know how the programme of the entire election stood for this constituency for which the appellant was a candidate and how for example the nomination papers were to be obtained and when and during which hours they were required to be presented and so on and so forth. It was clearly mentioned in this notice that the nomination papers would be taken up for scrutiny at 11 A. M. on the 22nd January, 1962, at the Collectorate, Jhunjhunu. We, therefore, find it hard for us to accept that the appellant was or could be really prejudiced by anything mentioned in the receipt. As we look at the matter, if the respondent had himself read the receipt or had it read out to him, he would have atonce seen that there was a conflict in the time table so far as the scrutiny of the nomination papers was concerned, which is indeed a very vital step in the whole process of election, and we should have expected him to further inquire into the matter. And if he had done so, he would have at once come to know how the position correctly stood. So far as the appellant's version made at the trial that he had been orally informed by the Assistant Returning Officer that the scrutiny would take place at 2. 58 P. M. on the 22nd January, 1962, we have no hesitation in saying that it is absolutely unacceptable. No question was put to Shri K. C. Jain, the Assistant Returning Officer, in that behalf when he was examined by the appellant himself on his side and consequently he has said nothing on that aspect of the matter. On the other hand, he clearly deposed that the time entered in the receipt Ex. 2 for scrutiny as 2. 58 P. M. was just an accidental slip of pen, because at this time the nomination form was presented!. " We should also like to make it clear that reading sec. 31 together with rule 3 of the Rules and the form 1 prescribed thereunder, the notice issued under these provisions already set out the time for the filing and the scrutiny of the nomination papers, and we are not prepared to accept the submission of learned counsel for the appellant that this is properly required to be done under the scheme of the Act for the first time under sec. 35 thereof, when the last-mentioned section, among other matters, requires that on receiving the nomination paper under sub-sec. 1 of sec. 33, the Returning Officer shall inform the persons delivering the same of the date, time and place fixed for the scrutiny of nominations. That provision, to our mind, has been] made merely by way of abundant caution and no more,so far as this aspect of the matter is concerned. We should also like to make it clear that the phrase "intended election" as used in sec. 31 has not been used in any narrow sense but embraces the entire process of election from the time the constituency has been called upon to go to poll till the result of the poll is declared. As we look at the matter, therefore, we are clearly of the opinion that having regard to all the circumstances, it was the duty of the appellant election-petitioner to have been present at the time of the scrutiny, that is, 11 A. M. on the 22nd January, 1962, in the office of the Returning Officer at Jhunjhunu, and if he failed to do so, and his nomination paper was disposed of in his absence, the fault is entirely his own, and, at any rate, we are not able to hold that that has really caused him any prejudice. Before parting with this aspect of the case, we cannot also fail to remark that if the wrong mention of the time for scrutiny in the receipt Ex. 2, should have had any such effect on his mind, such as the appellant now wishes to be believed no mention of this should have at all been made either in his telegram Ex. 10, dated the 25th January, 1962, or in his application Ex. 11, dated the 5th February, 1962, to the Chief Election Commissioner. It is further significant to note in this connection that although the appellant stated at the trial that he had made an application to the Returning Officer protesting against the procedure followed by him on that very day, that is, the 22nd January, 1962, no such application has been forthcoming on the record. The appellant has tried to explain this by saying that, application had been returned to him by the Returning Officer. But if that was so, one should have found a reference to this part of the complaint also which certainly betrayed the high-handedness of the Returning Officer in the telegram and the application sent to the Chief Election Commissioner. A question was put to the Returning Officer when he came into the witness-box in this connection and his reply was "if the suggestion is that I refused to take an application presented to me in writing, it is a canard. If any such application would have been presented, that should be on record. " We see no reason to disbelieve the Returning Officer. This contention, therefore, besides being otherwise untenable, seems to us to be in the nature of an afterthought. We hold accordingly. Yet another contention raised on behalf of the appellant which may next be considered is that based on sec. 33 (4) of the Act. The submission is that when the nomination of the appellant had been presented to the Returning Officer, the latter was satisfied that the name and the electoral roll number of the proposer as entered in the nomination paper were the same as entered in the electoral rolls, and, consequently, the failure of the Assistant Returning Officer who dealt with the nomination paper at that stage to raise any objection in that behalf amounts to noncompliance on his part with the requirements of that section and should be held to be sufficient to declare the election of the respondent void within the meaning of sec. 100 (d) (iv) of the Act. It may be accepted that sec. 33 (4) requires that when a nomination paper is presented to the Returning Officer, he shall attend to the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper and see whether they are the same as entered in the relevant electoral rolls, and where he comes to the conclusion that there is any clerical or technical error in regard to such names or numbers, power has been given to him to have the same corrected in order to bring them into conformity with the latter. The fact that this requirement was only followed perfunctorily in this case admits of no doubt. We have it from the Assistant Returning Officer Shri K. C. Jain who was examined by the appellant himself in this case that when the nomination paper of the appellant together with a certain electoral rolls was placed before him he found that the name and the electoral roll numbers as mentioned in the nomination paper and the electoral roll tallied, whereupon that electoral roll was taken away. The fact remains that the said officer did not check up the number and the name from the relevant electoral roll which was the Assembly roll, for if he had done so, he would have immediately found that there was an error in the nomination paper. That, in our opinion, however, would not necessarily lead to the conclusion that the error could be got corrected by him for the simple reason that it raised a further and a ticklish question whether the error in this case was a merely technical or, clerical error, or it was fundamental in which case even if the error should have been pointed out to the proposer it would still be a question whether it could be corrected or not. Apart from that, we are clearly of opinion that the failure of the Assistant Returning Officer to find out the error cannot have the effect of vitiating the election within the meaning of sec. 100 (l) (d) (iv) of the Act. For one thing, that would be putting a premium on the negligence of the candidate himself. For another, we are disposed to think that it is not the non-compliance with any and every provision of the Constitution or of this Act or any rules or orders made under this Act which must necessarily be permitted to have the effect contended for. The simple reason to our mind is that there are provisions and provisions. Some provisions are of a mandatory nature and others directory. To hold that non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under this Act irrespective of this distinction should necessarily vitiate an election would, in our opinion, lead to startling results, and we cannot possibly approve that as intended by the Legislature. Having regard to the setting in which this provision occurs we have no hesitation in saying that sec. 33 (4) is of a directory nature. Suppose, there is an error of a technical or clerical nature, which has not been detected by the Returning Officer at the time of the presentation of the nomination paper and consequently it has not been corrected. There is a further stage namely the stage of scrutiny of the nomination paper where the error may happen to be detected. But the failure to detect or correct the error at the earlier stage need not stand in the way of the same being ignored at the scrutiny stage provided ofcourse the error is of an unsubstantial character. Suppose again, the error is of a radical nature and the Returning Officer who had not at that time the benefit of other opinions on the matter ignored the error although it should not have been. It seems to us that such a matter could again be raised at the stage of scrutiny by the rival candidates or their agents or representatives as the case may be, and such a matter may undoubtedly fall to be considered and decided in an appropriate manner at that stage. This view receives high support from the decision of their Lordships of the Supreme Court in Rangilal vs. Dabu Sau (1 ). We have, therefore, no hesitation in coming to the conclusion that the provisions contained in sec. 33 (4) are of a directory nature and any noncompliance with them should not and cannot in law have the effect of vitiating the election. Consequently, we repel this objection also. This brings us to the last but not the least question whether the defect as to the number in the nomination form from a wrong electoral roll from which the name was given is a merely technical or clerical defect or it is one of a substantial character. ;