P.N. Balasubrahmanyan vs Election Tribunal of North Arcot at Vellore and Others

In this petition the petitioner prays for the issue of a writ of certiorari quashing the order of the Election Tribunal of North Arcot at, Vellorc made

in Election Petition No. 56 of 1952 on 5-11-1952. By that order the Election Tribunal dismissed the election petition which had been filed by the

petitioner to set aside the election of the second respondent to the House of the People from the Krishnagiri Parliamentary Constituency.

The necessary facts are not in dispute. The petitioner was a candidate for election to the House of the People from the Krishnagiri Parliamentary

Constituency. He filed his nomination paper on 21-11-1951 in the prescribed form. As against column 7 in the form, namely, ""constituency in the

electoral roll of which the name of the candidate is included"", he made the following entry:

''Graduates'' Constituency (Salem District Dharmpuri Taluk Laligani Panchayat)"".

Column 8 is for the serial number of the candidate in the Electoral Roll of the constituency in which his name is included. The petitioner did not

give any serial number. On the date on which the petitioner filed his nomination paper his name was not included in the roll of any Parliamentary

constituency. As a result of an application made by him to the Election Commission on 22-11-1951 his name was eventually included in the

Parliamentary Roll of the Salem Constituency on 27-11-1951. On 28-11-1951 the date fixed for the scrutiny of the nomination papers, an

objection was taken by the second respondent that the nomination of the petitioner was not valid. The Returning Officer upheld the objection and

rejected it on the ground that the nomination paper was incomplete for want of the particulars to be furnished against columns 7 and 8 and the

omission of these particulars was a serious defect of a substantial character because the petitioner could not have filled up those particulars on the

date of the nomination. He purported to reject the nomination u/s 36(2)(d), Representation of the People Act, 1951.

The election was duly held on 8-1-1952 without the petitioner; and the second respondent was declared duly returned. The return was published

on 20-1-1952. Thereupon the petitioner filed an election petition praying that the election of the second respondent may be set aside and declared

void on the ground that the petitioner''s nomination had been improperly and illegally rejected and such rejection had materially affected the result

of the election. The Election Tribunal after enquiry, held that the rejection of the petitioner''s nomination was in accordance with law and therefore

the election was not liable to be set aside. The tribunal found that the petitioner was not qualified to be nominated on the date of the nomination as

he was not an elector as defined in the Act on that date. The Tribunal further held that the omission on the part of the petitioner to complete the

nomination paper as required by the Act was a good ground for the rejection of the nomination paper by the Returning Officer. The Election

petition was therefore dismissed.

Before dealing with the contentions liaised before us it would be useful to set out the relevant provisions of the Representation of the People Act,

1951, which were referred to as having a material bearing on the question to be decided, namely, whether the nomination of the petitioner was

properly rejected.

2(1)(e). ''''elector'' in relation to a Constituency, means a person whose name is for the time being entered in the electoral roll of that Constituency.

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A person shall not be qualified to be chosen to fill a seat in the House of the People, other than a seat allotted to the State of Jammu and

Kashmir or to the Andaman and Nicobar Islands, unless--

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(d) in the case of any other seat, he is an elector for any Parliamentary Constituency.

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Nomination of candidates for election--Any person may be nominated as a candidate for election to fill a seat in any Constituency if he is

qualified to be chosen to fill that seat under the provisions of the Constitution and this Act.

33(1). On or before the date appointed under Clause (a) of Section 30 each candidate shall either in person or by his proposer or seconder,

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 u/s 31 a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the

nomination and by two persons referred to in Sub-section (2) as proposer and seconder.

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(5) 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 and seconder as entered in the nomination paper are the same as those entered in the electoral rolls; Provided that the Returning

Officer may -

(a) permit any clerical 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

(b) where necessary, direct that any clerical or printing error in the said entries shall be overlooked.

(6) If at the time of the presentation of the nomination paper the Returning Officer finds that the name of the candidate is not registered in the

electoral roll of the Constituency for which he is the Returning Officer, he shall for the purposes of Sub-section (5) require the person presenting

the nomination paper to produce either a copy of the electoral roll in which the name of the candidate is included or a certified copy of the relevant

entries in such roll.

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36.(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and

may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the

following grounds: (a) that the candidate is not qualified to be chosen to fill the seat under the Constitution or this Act; or

....

(d) that there has been any failure to comply with any of the provisions of Section 33 or 34. (4) The Returning Officer shall not reject any

nomination paper on the ground of any technical defect which is not of a substantial character.

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(7) For the purpose of this section--(a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be

conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe a nomination paper, as the case may be,

unless it is proved that the candidate is disqualified under the Constitution or this Act, or that the proposer or seconder, as the case may be, is

disqualified under Sub-section (2) Of Section 33.

The first contention of learned counsel for the petitioner was that as the petitioner''s name has been entered in the electoral roll of a

Parliamentary constituency by the date of the scrutiny of the nomination paper, he was duly qualified to stand for election and his nomination should

not have been rejected on the ground that he was not qualified. This argument proceeded on the assumption that the petitioner''s name was not on

the electoral roll of any constituency on the date of the filing of the nomination. Support for this contention was sought from the expression ""whose

name is for the time being entered"" which occurs in the definition of ""elector"" in Section 2 and from the words ""he is an elector"" in Section 4(d) of

the Act, Reliance was also placed on the language of Clause (a) of Sub-section (2) of Section 36, namely, ""that the candidate is not qualified to be

chosen"". There is no substance in this contention. What we are now concerned with is the validity of the nomination of the petitioner. Section 32 is

the material provision, and that lays down that the person who may be nominated as a candidate for election to fill a place in any constituency must

be qualified to be chosen to fill that seat.

Obviously, to find out if any person can be validly nominated it is necessary to find out if he is qualified to be nominated, qualified obviously on the

date of the nomination and not subsequently or at some time prior. The tense of the verb ""is qualified"" must needs refer to the time of the

nomination. The logical result of accepting the petitioner''s contention would lead us to this position, namely, that a person who is not qualified or is

disqualified to be chosen on the date of the nomination can be validly nominated because of the possibility that he may become qualified or he may

get rid of the disqualification subsequently before the date of the poll. A similar contention was negatived in England in -- ''Harford v. Lynsteey'',

1899 1 Q. B. 852 (A). In that case one of the candidates for election to the office of councillor for a ward in a borough was at the time of his

nomination interested in a contract with the Corporation of the Borough. An objection was raised to his nomination on the ground that he was by

reason of his interest in the contract, disqualified for election. It was held that he was disqualified for nomination nonetheless because he might, by

assigning his interest in the contract, have got rid of his disqualification before the date of the poll.

The following observations of Wright J., are apposite:

In the absence of any guide, we think it safest to hold that in cases of election under the Municipal Corporations Acts a person, who at the time of

nomination is disqualified for election in the manner in which this petitioner was disqualified, is disqualified also for nomination. The nomination is for

this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of

Section 36. A different construction might produce much confusion. On the nomination day no one could know whether the persons nominated will

at the poll be effective candidates or not. It is true that in the case put the disqualification may be removed before the election is completed; but

what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll? Will

votes given before removal of the disqualification be valid? If not, how is the number of them to be ascertained? It seems to us unreasonable to

hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons we think that this petitioner was disqualified for

nomination or election.

Mr. Ramachandran, learned counsel for the petitioner relied on the further observation, which follows, namely,

It is not necessary to say whether the same conclusion would follow if the disqualification was such as must necessarily cease at a time between

nomination and poll as, for instance, if a person were nominated on the last day of his minority for a poll to take place on a future day.

We do not think that this observation helps him in any way. For one thing, the learned Judge did not purport to decide the question which did not

arise before him. Moreover, the disqualification in the present case cannot be said to be one which ""must necessarily cease"" at a time between

nomination and poll.

The decision reported in -- ''Maharaja Sir Mahindra Chandra Nandy v. Pravash Chandar Mitter, Hammond''s Election Cases India and

Burma'', 1920-35 page 545 , related to an election to the Bengal Legislative Council. The date fixed for the presentation of the nomination papers

was 8-10-1923. On that day the Maharajah who was the petitioner in the election petition was a member in the Council of State and as such was

under a disqualification to stand for election to the Bengal Council. The Maharajah purported to resign his seat on the. Council of State by a

telegram and a letter addressed to the Viceroy. On 10th October his. resignation was formally accepted by the Viceroy. 11th October was the

date fixed for the scrutiny of the nomination papers by the Returning Officer. An objection was raised on behalf of the contesting candidate that the

Maharajah was not eligible for election on the date of filing the nomination papers, i.e. 8-10-1923, as his resignation, had not been accepted by the

Governor-General. The Maharajah''s nomination was rejected though on the date of the scrutiny the Maharaja was not disqualified. The other

candidate was declared elected and the Maharajah filed an election, petition. The main point for determination was whether the question of the

eligibility of the Maharajah was to be decided with reference to the date of presentation of his nomination paper or to the date of scrutiny by the

Returning Officer. The relevant rule was as follows:

Any person may be nominated as a candidate for election in any constituency for which he is eligible for election under these rules.

It was held by the Election Tribunal that the rejection of the nomination was proper. The following passage in their judgment, in our opinion,

correctly sums up the law:

We are of opinion that under the provisions of R. 11 the date with reference to which the question of the eligibility of a candidate for election is to

be determined is the date fixed by Government for the nomination, and if on that date a candidate is not eligible, his nomination paper must be

refused. The object of the scrutiny by the Returning Officer is to see whether the nomination was valid on the date on which it was made. The

nomination is an integral part of the election and it cannot be supposed that a person who is ineligible on the date of the nomination, can in the

interval between the nomination and the scrutiny, acquire new rights or that the acquisition of such rights would be sufficient to do away with his

pre-existing disqualification.

We therefore hold that as the petitioner was not on the electoral roll of any Parliamentary Constituency on the date of presentation of the

nomination paper, he was not qualified to stand for election to the House of People.

The next contention of Mr. Ramachandran was that even assuming that the qualification must exist on the date of the nomination, In this case the

inclusion of the petitioner''s name in the roll on 27-11-1951 must be deemed to relate back to a date earlier than the date of presentation of the

nomination paper. According to him, the petitioner''s name must be presumed to have been always there in the electoral roll. This contention rested

entirely on Section 25, Representation of the People Act, 1950 read with Rule 20 (2) & (3), Representation of the People (Preparation of

Electoral Rolls) Rules, 1950, Section 25 runs thus:

Notwithstanding anything contained in Ss. 23 and 24:

(a) the Election Commission may, at any time, for reasons to be recorded in writing, direct the revision in the prescribed manner of the electoral roll

of any constituency or part of a constituency, and when a list containing any additions to, omissions from or alteration in the electoral roll as a result

of such revision has been finally published in the prescribed manner, the electoral roll shall be deemed to have been revised accordingly;

(b) the Electoral Registration Officer for a constituency on application made to him for the correction of an existing entry in the electoral roll of the

constituency for the tune being in force, shall if he is satisfied after such enquiry as he thinks fit that the entry relates to the applicant and is

erroneous or defective in any particular, amend, or cause the roll to be amended, accordingly.

Rule 20 apparently made in exercise of the power conferred by Section 28 Sub-section 2(h) of the Act, is in the following terms;

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20(2) Any person whose name is not included in the electoral roll of a constituency for the time being in force and who is entitled to be registered

therein may, at any time after the roll is finally published and before the constituency is called upon to elect, apply to the Election Commission for

an amendment of the roll by the inclusion of his name therein, and if the Election Commission is satisfied after such notice and such enquiry as it

thinks fit, that the applicant is entitled to be registered therein, the Election Commission may direct the amendment of the electoral roll by inclusion

therein of an entry relating to the applicant; Provided that an application under this sub-rule shall not be entertained if it is not accompanied by a fee

of rupees fifty, which shall in no case be refunded.

(3) When any list is republished under Sub-rule (1) or a direction is issued under Sub-rule (2), the electoral roll to which such list or direction

relates shall be deemed to have been revised accordingly.

The argument of the petitioner''s learned counsel was that the amendment or revision of the roll by the addition or inclusion of his name took effect

retrospectively from the date of the final publication of the roll, which certainly was before the date of the nomination. We see nothing in the

language of either Section 25 or Rule 20 to support this argument. No retrospective operation expressly or by necessary intendment is even

indicated. All that the section provides is that when there are amendments by way of additions to, or omissions from or alterations in the electoral

roll and there is a list published containing them, it is not necessary that the electoral roll should be reprinted and republished with the additions,

omissions and alterations. The reason is obvious. It would be very expensive to do so after each amendment.

The section therefore provides that the electoral roll shall be deemed to have been published as revised when a list of the additions, omissions or

alterations has been finally published. Apart from the language of the section and the rule the great inconvenience and uncertainty that would result

would prevent us from holding that the provision is retrospective.

If petitioner''s learned counsel''s argument is right, then it would follow that even if a person''s name is inserted in the roll of a constituency one day

before the date of the poll, he would be eligible to stand and his nomination must be deemed to have been wrongly rejected, though on the date of

the scrutiny his name was not on the roll. The position was so anomalous that Mr. Ramachandran had to impose a limitation on his argument and to

concede that if the amendment was after the date fixed for scrutiny the fiction u/s 25 would not be applicable. There is no warrant for importing this

idea of a partial retrospective operation. It is clear to us that neither Section 25 nor Rule 20 supports the petitioner''s contention.

Mr. Ramachandran, learned counsel for the petitioner, sought to found an argument on the fact that the returning officer had rejected the

nomination not on the ground that the candidate was not qualified to be chosen but because there had been a failure to comply with the provisions

of Section 33. His contention was that the failure to fill up the particulars as to the name of the constituency in the electoral roll of which the

petitioner''s name was included and his serial number in that electoral roll was only a technical defect which was not of a substantial character and

therefore the Returning Officer, u/s 36(4) of the Act (of 1051) was not entitled to reject the nomination paper on that ground. We do not agree

with Mr. Ramachandran that the omission to give these particulars was only a technical detect. In our opinion it was a substantial defect which the

Returning Officer had no jurisdiction to overlook. Without these particulars the Returning Officer could not decide whether a candidate is or is not

qualified without these particulars ''ex facie'' there was nothing to show that the petitioner was in fact a qualified elector in respect of the

constituency.

It is sufficient to refer to the decision in --Baldwin v. Ellis'', 1929 1 KB 273 (B), in this connection. That case related to an election to a rural

district council. Rule 4, Rural District councillors Election Order, 1898 required that each candidate for election shall be nominated in writing and

that the nomination paper shall state the surname and other name or names in full of the candidate and his place of abode and description, and

whether he is qualified as a parochial elector of some parish within the poor law union in which the rural district or the part of the rural district

containing the parish or other area is comprised. The nomination papers of four persons who stood for election as rural district councillors did not

state the name of the parish for which they were qualified as local Government electors. Against the heading ""How qualified"" the entry was that

they were local Government electors. The nomination papers were rejected as invalid because the name of the parish was not stated, it was held

that the omission to state the name of the parish was a non-compliance with the requirements of Rule 4 abovementioned and the rejection was

proper.

Swift J. said:

In the course of his argument Mr. Pratt referred to this omission to state the parish, of which the person nominated is a local Government elector

as being a mere technicality. I do not agree. A statement of these particulars is required by the Local Government Board''s order, and I cannot

think that the omission to state those particulars on a nomination paper is a mere technicality, because unless the parish, for which the person

nominated is qualified as a local Government elector, is named no one could test whether or not he is qualified. I agree that the deputy Returning

Officer was right in rejecting these nomination papers.

We agree with the Election Tribunal that the omission to give the particulars as to the electoral roll and the serial number therein was a good

ground for the rejection of the nomination paper by the Returning Officer u/s 36(2)(d) of the Act. In one sense, this non-compliance is intimately

bound up with the other defect, namely, that the petitioner was not on the roll of any parliamentary constituency on the date of the nomination.

In this view it is not necessary for us to deal with the contentions raised by Mr. Ramaswami Aiyar for the successful candidate, the second

respondent, that Rule 20(2) and (3) made under the Representation of the People Act, 1950 was ''ultra vires'' and invalid and that even otherwise

Section 25 is not applicable because it is inconsistent with the later Act of 1951. Having listened to the argument we can only say that we see no

substance in either contention.

In the result the application is dismissed with costs of the second respondent. Advocate''s fee Rs. 150.

C. R. P. No. 2207 of 1952: Following our decision in W. P. No. 862 of 1952 this revision petition is dismissed. No costs.