1999 Supreme(SC) 157

1999(1) Supreme 415
Supreme Court of India
(From Punjab & Haryana High Court)
Dr. A.S. Anand, CJI., M. Srinivasan & U.C. Banerjee, JJ.
Rakesh Kumar -Appellant
versus
Sunil Kumar -Respondent
Civil Appeal No. 8695 of 1997
Decided on 9-2-1999
Counsel for the Parties :
For the Appellant : P.S. Mishra, Sr. Advocate, Neeraj Kr. Jain, Manish Mohan, Aditya Kr. Choudhary, Vishnu Sharma, Ms. Kirti Sinha, Ms. Anita Mohan, U.S. Prasad, Advocates.
For the Respondent : Satya Pal Jain, Sr. Advocate, Naveen Kr. Singh and Randhir Jain, Advocates.

Important Points
1. Under Proviso to Section 36(5) of Representation of People Act, in case an objection is raised during the scrutiny, to the validity of a nomination paper of a candidate, if the candidate seek time to meet objection scrutiny itself has to be postponed and candidate must be given opportunity to meet objection within time frame provided under the proviso.
2. Where despite request of the candidate to give 24 hours time to produce official confirmation that he was the official candidate of a party but without giving time his nomination paper was rejected elec­tion of the returned candidate became void.

Headnote:Representation of People Act, 1951-Sections 36(5) and 33(1)-Scrutiny of nominations-Rejection of nomination paper without giving opportu­nity of being heard-Vali­dity of-Legal effect-Respondent filed his nomination paper as a candidate of BJP-Another person also filed his nomination paper as a candidate set up by BJP-Both submitted Forms A and B as envisaged by paras 13(c) and (d) of Election Symbols (Reser­vation and Allotment) Order, 1968 - Forms submitted by both the candi­dates were signed by President of BJP and President of State BJP-At time of scrutiny Returning Officer raised suo motu objection that BJP had set up more than one candidate therefore none could be treated as a candidate set up by a recognised party, BJP-Respondent claiming official candidate sought 24 hours time to produce official confirma­tion - Nomination paper rejected without giving time sought for on ground further time cannot be given to change authorisation after scrutiny-Not correct-Proviso to Section 36(5) provided for opportu­nity to meet objection-Scrutiny itself would have been postponed-Returning Officer failed to exercise his jurisdiction u/s 36(5) and fell into grave error-Nomination paper wrongly and ille­gally rejected thereby rendering election of returned candidate as void.

       Held : After the amendment of Section 33(1) of the Act in 1996 a change has been brought about by the Legislature with regard to the requirement of the number of proposers of nomination papers to be filed by the candidates. After the amendment, the nomination of a candidate to a State Legislative Assembly is required to be subscribed by only one elector of the constituency, where the candidate has been set up either by a recognised national political party or by a recognised political party in the State or in the States in which it is recognised as a party and in other cases the nomination paper has to be subscribed by 10 electors of the constituency, as proposers, where the candidate has been set up either by an un-recognised political party or is an independent candidate. The politi­cal parties are also required to intimate the names of the candidates set up by them to the Returning Officer before scrutiny of nomination papers in Forms A and B. The returning officer rejected the nomination paper of the respondent, relying upon Section 33(1) of the Act, as amended. It was held that since BJP had set up more than one candidates and had not decided before scrutiny of the nomination papers as to who was its official candidate by cancelling the authorisation of the other candi­date, both the BJP candidates could be treated only as ‘independent’ candidates and not the candidates set up by a recognised political party and since neither of the candidates had been sponsored by ten proposers, their nomination papers were invalid. (Paras 14 & 15)

       The Election Commission of India has issued instructions in exercise of its statutory functions. Those instructions are contained in the Hand Book for Returning Officers. Chapter VI of the Handbook deals with scrutiny of nomination papers by the returning officer. The learned single Judge of the High Court has referred to various provisions of the instructions and has rightly come to the conclusion that the returning officer did not follow those instructions while scrutinising the nomination papers, thereby adopting a wrong proce­dure. We agree with the view of the High Court in that behalf. We are unable to persuade ourselves to agree with the submission of Mr. Mishra that the returning officer was justified in rejecting the nomination paper of the respondent for non-compliance with the requirements of Section 33(1), as amended, without any further en­quiry. The argument over looks the proviso to Section 36(5) of the Act as well as the instructions issued by the Election Commission of India (supra). The legislature in its supreme wisdom did not amend the proviso to Section 36(5) of the Act after Section 33(1) was amended in 1996, thereby clearly exhibiting its intention that the said proviso was required to be given its full effect, more particularly because the duty which a returning officer performs while scrutinising the nomination papers is quasi judicial in character, even after Section 33(1) had been amended. (Para 16)

       Through the proviso, the legislature has provided that in case an objection is raised during the scrutiny, to the validity of a nomina­tion paper of a candidate, the Returning Officer, may give an opportu­nity to the concerned candidate to rebut the objection by giving him time “not later than the next day”. This is in accord with the princi­ples of natural justice also. Since, no other candidate had raised any objection to the claim of the respondent of being the official candi­date of BJP, and the objection had been raised by the Returning Offi­cer suo motu, the mandate of the proviso to Section 36(5) of the Act warranted the holding of a summary enquiry, to determine the validity of the nomination paper by the returning officer, while exercising his quasi-judicial function. In the present case, the respondent had sought an opportunity to meet the objection, but even if he had not sought such an opportunity, the returning officer ought to have grant­ed him time to meet the objection in the interest of justice and fair play. (Para 17)

       The Returning Officer would have been justified in rejecting the nomination paper of the respondent, had the respondent either not sought an opportunity to rebut the objection raised by the Returning Officer or was unable to rebut the objection within the time allowed by the returning officer. Since, the respondent, had by his written application (supra), filed at the time of scrutiny of the nomination papers itself claimed to be the official candidate set up by the BJP, which claim was not disputed by any one else during the scrutiny, and had sought time of 24 hours to provide relevant material in support of his submission, it was obligatory on the part of the Returning Officer to allow time to him to rebut the objection, suo motu, raised by the Returning Officer. He could have given him any time to do so “within 24 hours” but to deny him such an opportunity, in the facts and cir­cumstances of the case, was neither fair nor proper or justified. It was expected of the Returning Officer to adjourn the scrutiny of the nomination paper to enable the respondent to meet the objection. The use of the expression “not later than the next day but one following the date fixed for scrutiny” under proviso to sub-section (5) of Section 36 of the Act un-mistakably shows that the Returning Officer has been vested with the discretion to fix time to enable a candidate to rebut an objection to the validity of his nomination paper and such a discretion has to be fairly and judicially exercised. The refusal to grant an opportunity to the returned candidate and rejecting his nomination paper was clearly an arbitrary exercise of the discretion vested in the Returning Officer. The Returning Officer has also not given any cogent reasons for his refusal to grant an opportunity as prayed for by the respondent. The Returning Officer appears to have been labouring under some misconception when he recorded that the political party “cannot be given further time to change such authori­sation after scrutiny”. Under the proviso to Section 36(5) of the Act, the scrutiny itself would have been postponed to the adjourned time and, therefore, it was not a case of meeting the objection after scrutiny of the nomination papers. The failure to exercise his jurisdiction to postpone the decision as to the validity of the nomination paper of the respondent, even after the respondent had sought time to meet the objection, indeed rendered the rejection of the nomination paper of the respondent as both improper and illegal. The Returning Officer is not expected to reject a nomination paper, without giving an opportunity to the candidate or his representative present at the time of scrutiny to meet an objection, capable of being met, particularly where such an opportunity is sought for by the candidate or his representative and no one present on behalf of the other candidate had opposed the claim made by the respondent. Having raised the objection suo motu, the request of the respondent who was present and sought time in writing to seek clarification from the BJP as to who was its official candidate, the Returning Officer in all fairness was obliged to grant time to the respondent as prayed for by him and postponed the scrutiny to the next day but he ought not to have rejected his nomination paper in hot haste. The Returning Offi­cer, obviously, failed to exercise his jurisdiction under Section 36(5) of the Act properly and thereby fell into a grave error in rejecting the nomination paper of the respondent. The learned Single Judge of the High Court was, therefore, perfectly justified in holding that the nomination paper of the respondent had been wrongly and illegally rejected, thereby rendering the election of the returned candidate as void. The impugned order, thus, suffers, from neither a jurisdiction defect nor any other error whatsoever. (Para 18)