SH. BHOGENDRA JHAversusSH. MANOJ KUMAR JHA

A                              SH. BHOGENDRA JHA
                                       v.
                              SH.MANOJKUMARJHA

                                   APRIL 23, 1996

B    [K. RAMASWAMY, B.L. HANSARIA AND S.B. MAJMUDAR, JJ.]

            Election Laws :

            Representation of People Act, 1951 :
c         Section ]~Election to Parliamentary Constituency-Election of can-
    didate held void by the High Court on the ground that the nomination papers
    of 2 candidates (PWs) were not valid and the Returning Officer has not
    conducted summary enquiry-Held : The said two candidates were dummy
    candidates-Not even attempted to satisfy the Returning Officer as to the
D   correctness of the particulars furnished by them in their nomination
    papers-Nor did they file Election Petition--ln the circumstances High Court
    was not right in declaring the election of the appellant as void.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8299 of
    1995.
E
          From the Judgment and Order dated 25.8.95 of the Patna High Cou~t
    in E.P. No. 7 of 1991.

         Jitendra Sharma, Vijayendra Misra, Binay K. Das, Ms. Gunwant
    Dara and Anil K. Jha for the Appellants.
F
            AK. Pandey, R.K. Sharma and R.P. Singh for the Respondent.

            The following Order of the Court was delivered :

            The appellant is a returned candidate to the 10th Lok Sabha from
G   13, Madhubani Parliamentary Constituency in Bihar. The last date for filing
    nominations for the Lok Sabha Elections was April 26, 1991. The date of
    scrutiny was April 27, 1991. Out of 61 candidates who filed nominations,
    three nomination papers of Pawan Kumar Pathak, PW-4 Lal Bahadur
    Singh, PW-6 and another came to be rejected by the Returning Officer
H   during scrutiny. Poll was held on May 23, 1991. Out of 49 candidates who
                                       676
                             B. IHA v. M.K JHA                               677

remained in the contest, the appellant had secured 3, 30, 111 votes, i.e., A
51.91 per cent as against the nearest candidate Dr. Jagannath Mishra who
secured 2, 50, 020, i.e., 39.31 %. Rest of the candidates could not even
protect their deposits. The respondent Manoj Kumar Jha, an elector filed
the election petition impugning rejection of the nominations of PW-4 and
PW-6 as bad in law. The High Court in the impugned judgment has upheld
                                                                            B
his contention and declared the election of the appellant as void in E.P.A.
No 7/1991 dated August 25, 1995 by Patna High Court.

      In this appeal, the only question is : whether the view of the High
Court that the Returning Officer had not conducted summary enquiry
under section 36 of the Representation of People Act, 1951 (for short, the           C
'Act') is correct in law ? It is seen that even Pawan Kumar Pathak (PW-4)
and Lal Bahadur Singh, PW-6 did not feel aggrieved against the rejection
of the nominations as they did not file election petitions though they were
examined on behalf of the respondent as witnesses. The appellant, admit-
tedly, was not and could not present himself at the time of scrutiny of
nomination papers and rejection of the nominations. He did not know what             D
had transpired at the time of .scrutiny and rejection of the nomination. As
regards PW-4, Pawan Kumar Pathak, the orders of rejection read thus :

         "the proposer name does not tally with the name as entered in the
         electoral roll hence rejected".                                             E
      As regards PW-6, it was rejected for the reason given thus :

         "The name of the proposer does not tally with the name as entered
         in the electoral roll hence rejected."
                                                                                     F
      It is not in dispute that PW-4's proposer's electoral roll number with
S. No. 413, Part 190 while in his nomination paper he mentioned S. No.
113 part 190. Lal Bahadur Singh's proposer mentioned his name was in the
Part 75 of electoral roll; in fact, it is in Part 74. The question, therefore, is;
whether is was necessary for the Returning Officer to make a roving
enquiry as regards the correct number of the proposers in the nomination             G
papers and the electoral roll. Section 33 of the Act prescribes procedure
for presentation of the nomination on the appointed date by each can-
didate either in person or by his proposer, between the specified time
under sub-sedion (1) thereof. The nomination thereof is to be completed
in the prescribed form and signed by the candidate and by an elector of              H
    678                  SUPREME COURT REPORTS (1996] SUPP.1 S.C.R.

A   the constituency as mandated under Section 31. Under sub-section (4), on
    the presentation of the nomination paper, the Returning Officer has to
    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
    entered in the electoral roll. The proviso reads as under :

B           "Provided that no misnomer of inaccurate description or clerical,
            technical or printing error in regard to the name of the candidate
            or his proposer or any other person, or in regard to any place,
            mentioned in the electoral roll or the nomination paper and no
            clerical, technical or printing error in regard to the electoral roll
c           numbers of any such person in the electoral roll or the nomination
            paper, shall affect the full operation of the electoral roll or the
            nomination paper with respect to such person or place in any case
            where the description in regard to the name of the person or place
            is such as to be commonly understood; and the returning officer
            shall permit any such misnomer or inaccurate description or cleri-
D
            cal, technical or printing error to be corrected and where neces-
            sary, direct that any such misnomer, inaccurate description,
            clerical, technical or printing error in the electoral roll or in the
            nomination paper shall be overlooked."

E         Section 36 prescribe the procedure for the scrutiny of nomination
    paper. Sub-section (1) emphasises that on the date of the scrutiny of
    nomination paper, the candidates, their election agents, one proposer of
    each candidate, and one other person duly authorised in writing by each
    candidate and by no other person, may attend at such time and place as
F   the Returning Officer may appoint; and the Returning Officer shall give
    them all reasonable facilities for examining the nomination papers of the
    candidates which might have been delivered under Section 33. Under sub-
    section (2) thereof the nomination paper shall be examined by the Return-
    ing Officer thereafter and he shall decide all objections which may be made
    to any nomination and may, either on such objection or after such summary
G   inquiry, if any, as he thinks necessary, reject any nomination on any of the
    grounds enumerated in clause (a), namely, whether the candidate is not
    qualified or is disqualified for being chosen to fill the seat or there has
    been a failure to comply with any of the provisions of Section 33 or Section
    34 or the signature of the candidate or the proposer on the nomination
H   paper is not genuine. Under sub-section (4), the Returning Officer shall
                           B. JHA v. M.K. JHA                          679

not reject any nomination paper on the ground of any defect which is not of A
a substantial character. Even though no objection is raised by any other
candidate, if the Returning Officer on his own motion finds that the defect
is of substantial character, he is empowered to reject the nomination. If
any objection is raised, the candidate cm;icerned may be allowed time to
rebut it not later than the next day but one following the date fixed for
                                                                               B
scrutiny, and the Returning Officer shall record his decision on the date
to which the proceedings are adjourned as envisaged in proviso to sub-sec-
tion (5). The Returning Officer shall hold, under-section (1), the scrutiny
on the date in that behalf and shall not allow any adjournment of the
proceedings except when such proceeding are. interrupted of obstructed by
riot or open, violence or causes beyond his control. Under sub-section (6),   c
the Returning Officer shall endorse on such nomination paper his decision
accepting or rejecting the same and, if the nomination paper is rejected,.
shall record in writing a brief statement of his reasons for such rejection.
Under sub-section (8), immediately after all the nomination papers have
been scrutinised and decisions, accepting or rejecting the same, have been D
recorded, the Returning Officer shall prepare a list of validly nominated
candidates, that is to say, candidates whose nominations have been found
valid, and affix it on his notice board. What would be a defect of substantial
character is always a question of fact based on factual matrix on record,
Each case is required to be considered on its own backdrop.
                                                                             E
      This Court in a recent judgment dated 14.3.1996 in C.A. No. 6478/95
(Rafiq Khan & Anr. v. Lazmi Narayan Shanna) reviewed the entire case
law and held that :

        "Unless the defect is one which can be per se noticed and corrected F
        at the stage of section 33(4) or later at the stage of section 36(4)
        without the need to refer to various other documents the same
        cannot be said to be of a non-substantial character. In the instant
        case also the defect as to the number could have been said to be
        not of a substantial character if the appellant had shown that the G
        name of the proposer appeared on the very same sheet at serial
        number 138 instead of 136 i.e. only two steps away. In that case
        one can say that the Returning Officer could have verified the same
        if he had exercised due diligence. In such a situation even if the
        appellant had his proposer absent the court could have taken the
        view that the defect was not of a substantial nature. But the defect H
    680                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A           cannot be noticed unless the Returning Officer is required to 1sift
            through various other documents or the voters list or is required
            to undertake an enquiry as to whether the proposer's name appears
            anywhere else in the voters list. The defect may not be one capable
            of being cured without the assistance o[ the candidate or his
            proposer and in such a situation he would be justified in rejecting
B           the nomination paper. In the instant case since there is no evidence
            to suggest that the name of the proposer appeared no that very
            sheet at serial number 138 instead of 136 in the electoral roll, we
            find it difficult to find fault with the rejection of the nomination
            paper by the Returning Officer."
c
          Under Section 36(4) of the Act, the Returning Officer shall not reject
    any nomination paper on the ground of any defect which i.' not of a
    substantial character. Under Section 36(1), the Returning Officer has the
    power to conduct an enquiry. It is settled law that it is a summary enqui.ry.
D   When the Returning Officer scrutinies the nomination paper, the parties
    or the nominees are required to be present and if they seek liberty to place
    the necessary material, the Returning Officer is enjoined to adjourn the
    case to the next day. Jn case they are able to place the necessary material
    and satisfy the Returning Officer of the correctness of the enrollment as a
    candidate or the address of the nominee, the Returning Officer would
E   consider the same. But he is not expected to sift the evidence and find the
    placement in the electoral roll, the name and particular of the nominee.

           Jn this case, PWs 4 and 6 who were the candidates and had filed their
    nominations, though admittedly were present, did not ask for an oppor-
F   tunity nor attempted to satisfy the Returning Officer as to the correctness
    of the particulars furnished by them in the nomination papers of their
    proposers. Therefore, the Returning Officer was not expected to make a
    roving enquiry to find out whether the names of the proposers found place
    i.n the electoral roll. It is the duty of the candidate/proposer to satisfy the
    Returning Officer. It was suggested to the witnesses, PWs 4 and 6, that
G   they were only dummy candidates and had no interest in the election and
    that in the event Dr. Misra was unsuccessful at the election, they would be
    used as a means to unsettle the election of the appellant.

         We find force in the suggestion. It was suggested that Dr. Misra had
H   borne their travel expenses to atterrd the Court for giving evidence. It is an
•


                               B. JHA V. M.K. JHA                          681

    admitted position that they did not even know the result of the election A
    and the person who succeeded in the election. In other words, they did not
    even make any attempt to know the result of the election, apart from the
    fact that they did not file even the election petition. Under these cir-
    cumstances, it would apyear that PWs 4 and 6 were only dummy candidates
    to be used as reservd material to impugn the election of the returned
                                                                               B
    candidate in the event the election result went against any unsuccessful
    candidate.

          Accordingly, we hold that the High Court was not right in declaring
    the election of the appellant as void on the ground that the nominations of
    of PWs 4 and 6 were not valid in law.                                         C

           The Appeal is accordingly allowed with costs quantified at Rs.
    15,000. The judgment of the High Court Court is set aside. The eiection
    petition stands dismissed.

    G.N.                                                      Appeal allowed.