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1996(4) Supreme 777
SUPREME COURT OF INDIA
K. Ramaswamy, B.L. Hansaria & S.B. Majmudar, JJ.
Bhogendra Jha -Appellant
versus
Manoj Kumar Jha -Respondent
Civil Appeal No. 8299 of 1995
Decided on 23-4-1996
Held : Under Section 36(4) of the Act, the Returning Officer shall not reject any nomination paper on the ground of any defect which is 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 enquiry. When the Returning Officer scrutinise 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. In case they are able to place the necessary material and satisfy the Returning Officer of the correctness of the enrolment as a candidate or the address of the nominee, the Returning Officer would 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. (Para 6)
Further held : In this case, PWs 4 and 6 who were the candidates and had filed their nominations, though admittedly were present, did not ask for an opportunity 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 in 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 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. (Para 7)
It is an admitted position that they did not even know the result of the election 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 circumstances, it would appear that PWs 4 and 6 were only dummy candidates to be used as reserve material to impugn the election of returned candidate in the event the election result went against any unsuccessful candidate. (Para 8)
ORDER
The appellant is a returned candidate to the 10th Lok Sabha from 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 during scrutiny. Poll was held on May 23, 1991. Out of 49 candidates who remained in the contest, the appellant had secured 3,30,111 votes, i.e., 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 PW4 and PW6 as bad in law. The High Court in the impugned judgment has upheld 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.
2. 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 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, admittedly, 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 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."
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."
3. 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 it was necessary for the Returning Officer to make a roving enquiry as regards the correct number of the proposers in the nomination papers and the electoral roll. Section 33 of the Act prescribes procedure for presentation of the nomination on the appointed date by each candidate either in person or by his proposer, between the specified time under sub-section (1) thereof. The nomination thereof is to be completed in the prescribed form and signed by the candidate and by an elector of 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 :
"Provided that no misnomer or 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 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 clerical, technica
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