Supreme Court of India
BALRAM SINGH YADAV@ BALRAM YADAVversusABHAY KUMAR SINGH
- Citation
- 2014 INSC 394
- Decided
- 13 May 2014
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
An improperly rejected nomination under Section 33(5) of the Representation of People Act, 1951 renders the election void, and the High Court’s order setting aside the appellant’s election was erroneous.
Summary
The respondent, Abhay Kumar Singh, filed a nomination for a Bihar Legislative Council seat but the Returning Officer rejected his papers for not attaching the current electoral roll required under Section 33(5) of the Representation of People Act, 1951, as he belonged to a different constituency. The High Court set aside the election of the appellant, Balram Singh Yadav, declaring it void on the ground of improper rejection of the respondent's nomination. On appeal, the Supreme Court held that filing the latest electoral roll with the nomination is mandatory; failure amounts to non‑compliance of Section 33(5). An improperly rejected nomination automatically renders the election void under Section 100(1)(c). Consequently, the High Court’s decision was erroneous, the appellant’s election was upheld, and he was entitled to full remuneration. The appeal was allowed.
Issues considered
- Whether the nomination paper of the respondent was improperly rejected by the Returning Officer.
- Whether non‑filing of the current electoral roll constitutes non‑compliance of Section 33(5) of the Representation of People Act, 1951.
- Whether an election must be declared void when a nomination is improperly rejected under Section 100(1)(c).
- Whether the High Court was justified in setting aside the election of the appellant.
Legislation cited
- Representation of People Act, 1951s. 100(1)(c), s. 116A, s. 33(5)
Subjects
Representation of People ActSection 33(5)Section 100nomination rejectionelectoral rolllegislative council electionvoid electionimproper rejection
Judgment
[2014) 7 S.C.R. 532
A BALRAM SINGH YADAV@ BALRAM YADAV
v.
ABl-IAY KUMAR SINGH
(Civil Appeal No. 888 of 2009)
MAY 13, 2014.
B
[DIPAK MISRA AND N.V. RAMANA, JJ.]
Representation of People Act, 1951 - Section 33(5) -
Compliance of - Rejection of nomination paper - For non-
e filing of current electoral roll which was required since the
candidate belonged to another constituency - Held: Is not a
case of improper rejection - Current electoral roll is to filed
along with the nomination paper, otherwise it would
tantamount to non-compliance of s. 33(5) of the Act - Once
D the court comes to the· conclusion that the nomination paper
had been improperly rejected, it is obliged in law to declare
the election void - Thus, on facts, High Court not justified in
holding that the nomination paper could not have been
rejected by the returning officer and thereafter, invalidating the
E election of the elected member since the candidate did not
file the latest electoral and also remained absent at the time
of scrutiny - Order passed by the High Court set aside -
Election of the returned candidate valid.
The respondent filed ~is nomination paper along
F with other to contest as the member of the Legislative
Council. The Returning Officer accepted the nomination
papers of all the candidates but rejected of the
respondent since he did not file the relevant electoral roll
which was required to be done, for he belonged to
G another constituency. The respondent filed an election
petition seeking a declaration that rejection of his
• was incorrect and inappropriate since
nomination paper
he had filed the requisite voters' list, thus, the election of
t~e elected candidate was void. The High Court allowed
H 532
BALRAM SINGH YADAV@ BALRAM YADAV v. 533
ABHAY KUMAR SINGH
the election petition and set aside the election of the A
appellant. Hence, the instant appeal.
Allowing the appeal, the Court
HELD: 1.1. Unless the current electoral roll is filed
along with the nomination paper, that would tantamount 8
to non-compliance of section 33(5) of the Representation
of People Act, 1951. Once the court comes to the
conclusion that the nomination . paper had been
improperly rejected, it is obliged in law to declare the
election void. [Para 12 and 15] [541-D; 542-C-D] C
1.2. The submission that there was no pleading and
no evidence was adduced to establish that the election
of the elected candidate was materially affected, is sans
substance. In the instant case, on a perusal of evidence o
of PW-1, the respondent, and the Returning Officer, it is
perceptible that the respondent l}ad not filed the electoral
roll. of 1~98 which was the latest electoral roll as on
1.1.2002. On the date of scrutiny, the respondent was
absent. The High Court referred to the order of rejection E
of nomination paper by the Returning Officer and opined
that none had filed the electoral roll of 1.1.2002 and,
therefore, the nomination paper could not have been
rejected. The said view is the resultant of erroneous
perception of fact. The ground that was indicated by the
F
Returning Officer was that the valid electoral roll as on
1.1.2002 had not been filed. It has come in the evidence
that no electoral roll was prepared on that date and the
latest electoral roll was that of 1998. The respondent had
not filed the same. In fact, he had filed the·electoral roll
of 1995. It is also clear from the evidence that at the time G
of scrutiny, he was not present. [Para 12 and 15] [541-D;
542-D-G]
1.3. The High Court erred by setting aside the election
of the appellant and, ~hus, the judgment of the HJgh Court H
534 SUPREME COURT REPORTS /
[2014] 7 S.C.R.
A is set aside. The election of the appellant is treated as
valid. The appellant would get the entire remuneration for
the period for which he was elected as a member of the
legislative Council. [Para 16) (542-G; 543-A-B]
Kirpal Singh, ML.A. v. Uttam Singh and another (1985)
8
4 SCC 621:1985 (3) Suppl. SCR 622 - followed.
B. Dandapani Patra v. Returning Officer-cum-Sub-
Divisional Officer, Be~rhampur and others (1990) 1 SCC
505:1989 (2) Suppl. SCR 100; Ranjit Singh v. Pritam Singh
C (1996) 3 SCR 543 - r1~lied on.
Surendra Nath Khosla and another v. S. Dalip Singh and
others-AIR 1957 SC 242; Mahadeo v. Babu Udai Partap
Singh and others AIR 1966 SC 824: 1966 SCR 564 -
0 referred to.
C21se Law Reference :
AIR 1957 SC 242 Referred to Para 10
AIR 1966 SC 824 Referred to Para 11
E
(1990) 1 sec 505 Relied on Para 14
(1996) 3 SCR 543 Relied on Para 14
(1985) 4 sec 621 Followed Para 16
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 888
of 2009.
Under Section 116A of the Representation of Peoples Act
1951, Judgments and Order dated 19.09.2008 in Election
G Petition No. 4 of 2003.
Nagendra Rai, T. Mahipal for the Appellant.
The Judgment of the Court was delivered by
BALRAM SINGH YADAV@ BALRAM YADAV v. '535
ABHAY KUMAR SINGH '
~·
DIPAK MISRA, J. 1. In this ?Ppeal, the question that is A
required to be determined is whether the High Court by the
order impugned was justified in invalida.ting the election of the
appellant who was elected as a member of Bihar Legislative
Assembly in the election held on 10.7.2003.
B
.2. · B.ereft of un!'lecessary details, ~e facts which are
essential to be stated are that the reppondent filed his
nomination paper along with fifty others to enter into the contest
as the member of Bihar Legislative Council from 20-Saharsha-
cum-Med hepu ra-cum-Su pa u I Local Authority Election
Constituency. The Returning Officer, while accepting the C
. nominat\on papers of all the candidates, rejected the nomination
~paper of the respondent on the ground that he had not filed the
retevant electoral·roll which was required to be done, for he
b~l·onged to another constituency.
D/
3. After the election was over, the respondent instituted ·
Election Petition No. 4 of 2003 in the High Court of Patna
seeking ~ declaration that rejection of his nomination paper was
incorrect and· inappropriate, and hence, the election of the
elected candidate was void. Challenge to the rejection was E
based on two counts, namely, that he had filed the requisite
voters' list as contemplated under Section 33(~) of the
Represent~tion of the People Act, 1951 (for brevity, 'the Act')
and second, the Returning Officer, at the time of scrutiny, had
not pointed out the defect to him for which he was deprived of F
the opportunity of rectifying the mistake.
4. In the election petition it was asseverated that the
Returning Officer accepted the electoral roll for other
candidates for the year 1998, but as far as the respondent was
concerned, there was insistence for production of the valid G
electoral roll as on 1.1.2002 which was not essential. The stand
and stance put forth by the election petitioner was seriously
controverted by the present appellant on many a ground
including the one that in the a?sence of any pleadings in the
H
536 SUPREME COURT REPORTS . [2014] 7 S.C.R.
A petition to substantiate the fact his contesting in the election
would have materially affected the results of the election, the
election petition was totally devoid of any substance.
5. The High Court framed the following four issues for
B adjudication:
"(1) Whether this election petition, as framed is
maintainable?
(2) Whether this election petition is vitiated by non-
e joinder of necessary parties?
(3) Whether the nomination paper of the petitioner was
improperly rejected by the Returning Officer? ·
(4) Whether the petitioner is entitled to any relief or
D reliefs?"
6. Both the parties adduced oral evidence and marked
certain documents as exhibits. The High Court treated issue
No. 3 as the principal issue and the issue No. 4 as
E consequential to it. The respondent brought on record the order
of rejection passed by the Returning Officer as Ext. P-2. There
was no dispute before the High Court that the first respondent
did not belong to the constituency and, therefore, he was
required to comply with Section 33(5) of Act. The High Court,
F adverting to the said aspect, observed as follows: -
"Petitioner does not deny that he had filed an extract of
1995 electoral roll and even in the electoral roll of 1998
the Part and Serial Number where the petitioner's name
figured was identical. If the Returning Officer had bothered
G to tum the pages of 1998 electoral roll at the time of
scrutiny then the abov1:l declaration of the petitioner in the
nomination paper would have stood verified and
corroborated. But then the reason for rejection of the
nomination of the petitioner is not that the petitioner had
H not annexed 1998 electoral roll. The reason assigned is·
'
BALRAM SINGH YADAV@ BALRAM YADAV v. 537
ABHAY KUMAR SINGH [DIPAK MISRA, J.]
that he did not have theAharta as on 1.1.2002 and he had A
not annexed Styapit (certified) extract of the electoral roll
in the regard."
7. Thereafter, considering the oral evidence, the High
Court opined thus: - B
"The Court also decides to have a look at the oral
evidences which have been adduced on this score. Five
witnesses were produced on behalf of the petitioner. P.W.
1 is the petitioner himself where he has stated that he was
one of the candidates for the "Constituency" of the Local C
Body and was a voter of 110-Raghopur Assembly
Constituency. He stated that his nomination papers were
illegally rejected. He filed two sets of nomination papers
which were duly signed by him and his proposers. In one
of the nomination papers a detailed reason for rejection D
was recorded but in the second nomination paper the word
"Aswikrit Karta Hun" (rejected) only mentioned. He has
furnished the details of his name, the Part and the Serial
Number of 110-Raghopur Assembly Constituency which is
reflected in the voter list of 1998. His nC!me figured at serial E
no. 444 in Part 11. He also states that a demand of voter
list for the year, 2002 was made from him orally but there
was no voter listof the year available to his knowledge.
He also denied that he had received any kind of memo
much less memo no. 10. He does accept that he was F
personally not present at the time of scrutiny but he had
authorized one Sri Pr~bhakar Singh, Advocate to
participate in the same but he was not allowed to go to
the place of scrutiny."
8. We have heard Mr. Nagendra Rai, learned senior G
counsel for the appellant. Despite service of notice, there is no
appearance on behalf of the respondent.
9. To appreciate the controversy from a proper
H
538 SUPREME COURT REPORTS [2014] 7 S.C.R.
A ..paspe-ctive, it is apposite to refer to Section 100 of the Act. It
reads as follows:-
"100. Grounds for declaring election to be void.- (1)
Subject to the pmvisions of sub-section (2) if the High
Court is of opinio·n-
B
(a) that on the date of his election a returned candidate
was not qualified, or·was disqualified, to be chosen
to fill the s13at under the Constitution or this Act or
the Government of Union Terrifories Act, 1963 (20
c of 1963); or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any
other pernon with the consent of a returned
D candidate or his election agent; or
(c) that any nomination has been improperly rejected;
or
(d) that the result of the election, in so far as it concerns·
iE a returned candidate, has been materially affected
(i) by the improper acceptance of any
nomination, or
F (ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent, or
(iii) by the improper reception, refusal or
0 rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or of any rules
or orders made under this Act,
H
BALRAM SINGH YADAV@ BALRAM YADAV v. 539
ABHAY KUMAR SINGH [DIPAK MISRA, J.]
the High Court shall declare the election of the returned A
candidate to be void."
10. Be it stated, before this provision was incorporated by
the Representation of the People (2nd amendment) Act, 1956,
Section 100(1)(c) read as follows:-
B
"lf the Tribunal is of opinion that the result of the election
has been materially affected by the improper acceptance
or rejection of any nomination, the Tribunal shall declare
the election to be wholly void."
c
Interpreting the said provision, the Constitution Bench in
Surendra Nath Khos/a and another v. S. Dalip• Singh and .
others 1 ruled thus:-
"It appears that though the words of th~ section are in
0
general terms with equal application to the case of
improper acceptance, as also .of improper rejection of a
nomination paper, case law has made a distinction
between the two classes of cases. So far as the latter class
of cases is concern'ed, it may be pointed out that almost
all the Election Tribunals in the country have consistently E
taken the view that there is a presumption in the case of .
improper rejection of a nomination paper that it has
materially affected the result of the election. Apart from the
practical difficulty, almost the impossibility, of
demonstrating'that the electors would have cast their votes · F
in a particular way, that is to say, that a substantial number
of them w~uld have cast their votes in favour of the rejected
candidate, the fact that one of several candidates for an
election had been kept ou~ of the arena is by itself a very
material consideration. Cases can easily be imagined G
where the most desirable candidates from the point of view
of electors and the most formidable candidate from the
point of view of the other candidates may have been
1. AIR 1957 SC 242. H
540 SUPREME COURT REPORTS [2014] 7 S.C.R.
A wrongly kept out from seeking election. By keeping out
such a desirable candidate, the officer rejecting the
nomination paper may have prevented the electors from
voting for the best candidate available. On the other hand,
in the case of an improper acceptance of a nomination
B paper, proof may easily be forthcoming to demonstrate that
the coming into thE~ arena of an additional candidate has
not had any effect on the election of the best candidate in
the field. The conjeicture therefore is permissible that the
legislature realising the difference between the two classes
c of cases has given legislative sanction to the view by
amending Section 100 by the Representation of the
People (Second Amendment) Act, 27 of 1956, and by
going to the length of providing that an improper rejection
of any nomination paper is conclusive proof of the election
being void. For the reasons aforesaid, in our opinion, the
D
majority decision on the fourth issue is also correct.''
11. After the amendment, a three-Judge Bench in
Mahadeo v. Babu Udai Partap Singh and others 2, after
referring to the decision in Surendra Nath Khos/a (supra),
E opined as follows:-
"11. This position has now been clarified by the
Legislature itself by amending S. 100 in 1956. The
amended S. 100(1)(a), (b) and (c) refer to three classes
F of cases where the 1election is set aside on proof of facts
enumerated in the said clauses. Clause (a) refers to a case
where a returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat under the
Constitution or this Act at the date of his election. As soon
as this fact is proved, his election is set aside. Similarly,
G
under Cl. (b), if any corrupt practice is shown to have been
committed by a returned candidate or his election agent
or by any other person with the consent of a returned
candidate or his election agent, the election of the returned
H 2. AIR 1966 SC 824.
BALRAM SINGH YADAV@ BALRAM YADAV v. 541
ABHAY KUMAR SINGH [DIPAK MISRA, J.]
candidate is set aside and declared void. Likewise, Cl. (c) A
provides that the election of a returned candidate shall be
declared void if it is shown that any nomination has been
improperly rejected. It would thus be seen that the view
which the Election Tribunals and the Courts had been
·consistently taking in dealing with the question about the B
effect of the improper rejection of any nomination paper,
has been confirmed by the Legislature and now, the
position is that if it is shown that at any election, any
nomination paper has been improperly rejected, the.
improper rejection itself.renders the election void without c
any further proof about the material effect of this importer
rejection."
12. In view of the abovestated enunciation of law, the
. submission that there was no pleading and no evidence was
· adduced to establish that the election of the elected candidate D
was materially affected, is sans substance. Once the court
comes to the conclusion that the nomination paper had been .
improperly rejected, it is obliged in law to declare the election
void.
E
13. Presently, we shall proceed to deal with the issue
whether the High Court was justified in accepting the plea of
the respondent that his nomination paper was improperly
rejected. In this regard, reference to Section 33(5) of the Act
is seemly. It reads as follows: - F
""Where the candidate is an elector of a different
constituency, a copy of the electoral roll of that constituency
or of the relevant part thereof or a certified copy of the
relevant entries in such roll shall, unless it has been filed
along with the nomination paper, be produced before the G
returning officer at the time of scrutiny."
14. The said provision came to be interpreted in B.
Dandapani Patra v. Returning Officer-cum~Sub-Divisiona/
H
542 SUPREME COURT REPORTS [2014) 7 S.C.R.
A Officer, Berhampur and others3 , wherein a two-Judge Bench
placed reliance on Ran]it Singh v. Pritam Singh 4 and came to
hold as follows: -
"... it has been held that when Section 33(5) of the said
Act refers to a copy of the relevant part of the electoral roll,
B
it means a part as defined in Rule 5 of the said Rules of
1960. The complete copy would carry the various
amendments mad1:i in the roll to enable the Returning
Officer to see whether the name of the candidate continues
in the roll."
c
15. The facts of the aforesaid decision would show that
unless the current electoral roll is filed along with the nomination
paper, that would tantamount to non-compliance of Section
33(5) of the Act. In the instant case, on a perusal bf evidence
D of PW-1, the respondent herein, and the Returning Officer, it is
perceptible that the said respondent had not filed the electoral
roll of 1998 which was the latest electoral roll as on 1.1.2002.
On the date of scrutiny, the respondent was absent. The High
Court, as noticeable,·has referred to the order of rejection of.
~ nomination paper by the Heturning Officer and opined that none
had filed the electoral roll of 1.1.2002 and, therefore, the
nomination paper could not have been rejected. The aforesaid
view is the resultant of erroneous perception of fact. The ground
that was indicated by the! Returning Officer was that the valid
F electoral roll as on 1.1.2002 had not been filed. It has come in
the evidence that no electoral roll was prepared on that date
and the latest electoral roll was that of 1998. The respondent
had not filed the same. In fact, he had filed the electoral roll of
1995. It is also clear from the evidence that at the time of
G scrutiny, he was not present.
16. In view of the foregoing analysis, we have no scintilla
of doubt that the High Court has fallen into serious error by
3. (1990) 1 sec 505.
H 4. (1996) 3 SCR 543.
BAl,..RAM SINGH YADAV@ BALRAM. YADAV v. 543
ABHAY KUMAR SINGH [DIPAK MISRA, J.]
setting aside the election of the appellant and, accordingly, we A
set aside the judgment of the High Court, treat the election of
:the appellant as valid and further direct that the appellant shall
get the entire remuneration for the period for which he was
elected as a member of the legisla.tive Council and we say so
on the basis of the Constitution Bench decision in Kirpal Singh, B
M.L.A. v. Uttam Singh and another°.
17. The appeal is accordingly allowed. There shall be no
order as to costs.
j ..
1
Nidhi Jain Appeal allowed. C
15. (1985) 4 sec s21.
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