1999 Supreme(SC) 1248

1999(9) Supreme 69
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu and R.C. Lahoti, JJ.
Ms. Krishna Mohini -Appellant
versus
Mohinder Nath Sofat -Respondent
Civil Appeal No. 3653 of 1999
Decided on 26-10-1999
Counsel for the Parties :
For the Appellant : O.P. Sharma, Sr. Advocate, R.C. Gubrele, K.R. Gupta, Advocates.
For the Respondent : A.K. Goel, Sr. Advocate, Bhoop Singh. Ms. Sheela Goel, S.S. Shamsheri, Ms. Meenakshi, Advocates.

IMPORTANT POINTS
1. The expression "recognised political party" as occurring in first proviso to sub-section (1) of Section 33 of the Act must be assigned the same meaning as assigned to it by the Symbols Order.
2. Choosing a wrong symbol, leaving blank the space meant for filling the choice of symbols and an error in describing the symbol-are all defects not of substantial character, within meaning of Section 36(4).
VERY IMPORTANT POINTS
3. Merely because nomination paper of main candidate of a political party is accepted, nomination paper of a substitute/dummy candidate cannot be rejected if the nomination paper is supported by 10 electors of the constituency and the nomination paper is otherwise valid in all other respect.
4. An oath or affirmation taken before the submission of nomination form and on or after the day of scrutiny would be invalid depriving the nomination paper of its validity.
5. Illegal rejection of a nomination is by itself a ground for setting aside an election without further proof of the result of the election of the returned candidate having been materially affected.

Headnote:Representation of People Act, 1951-Section 100(1)(d) r/w Sections 33 and 36-Improper rejection of nomination paper - Two candidates filing nomination papers as substitute candidates of their respective main candidate-Nominated by political parties - Substitute candidates nomination papers rejected on ground nomination of main candidates accepted-Rejection of nomination of substitute candidates illegal - Each of rejected nomination supported by 10 electors of constituency and nomination valid-Omission to mention choice as to symbol in nomination paper is no defect of substantial character-Illegal rejection of nomination paper vitiated election-Election was void.

       Held : The distinction between nomination filed by a candidate set up by a recognised political party and a candidate not set up by a recognised political party is precise. A perusal of first proviso to sub-section (1) of Section 33 of the Act makes it clear that a candidate not set up by a recognised political party, meaning thereby a candidate set up by an unrecognised political party or an independent candidate, in order to be duly nominated for election must have his nomination paper subscribed by ten proposers being electors of the Constituency. If such nomination paper be subscribed by only one elector as proposer or by a number of electors less then ten, then it will amount to non-compliance with the provisions of Section 33. A candidate, who is merely a substitute or a cover candidate set up by a recognised political party, may file his nomination paper proposed by only one elector of the Constituency. If the nomination paper of the approved candidate of that political party is accepted, the nomination paper filed by the substitute or cover candidate, shall be liable to be rejected because there can be only one candidate set up by a recognised political party. In order to be a candidate set up by a registered and recognised political party so as to take advantage of being proposed by a single elector, all the four requirements set out in clauses (a), (b), (c) and (d) of Para 13 of the Symbols Order must be satisfied. If any one or more of the requirements are not satisfied, the benefit of nomination being proposed by a single elector is not available to him. A situation can be visualised where more candidates than one may be aspiring to be the candidates each set up by the same recognised political party. The one in respect of whom notice and communication in forms A and B referable to sub-para (b), (c) and (d) of Para 13 of Symbols Order have been filed not later than 3.00 p.m. on the last date for making nominations shall be treated as a candidate set up by such political party. His nomination paper, even if subscribed to by single elector as proposer, shall be valid subject to satisfying other conditions as to validity. If any of the requirements contemplated by sub-para (b), (c) and (d) of Para 13 of the Symbols Orders are not complied with by filing the requisite notice and communication, then the candidate shall not be deemed to be one set up by the recognised political party. His nomination, if subscribed by a single elector or electors less than ten, shall be liable to be rejected. If the nomination paper of such a candidate is subscribed to by ten proposers being electors of the Constituency within the meaning of first proviso to sub-section (1) of Section 33 of the Act, then the nomination paper cannot be rejected because an error or omission as regards symbol or choice thereof being a defect not of a substantial character, would not come in the way of the nomination being accepted. The nomination paper shall be accepted as valid and an appropriate symbol to which the candidate may be entitled in accordance with the Symbols Order shall be allotted by the Election Commission. (Para 32)

       A candidate may be aspiring for being set up by a recognised political party. He can pin his hopes for being sponsored by such political party upto the hour by which the time for filing the nomination papers expires. If he fails to obtain such sponsorship by the recognised political party in accordance with the provisions contained in Para 13 of the Symbols Order, then he has the choice of continuing his candidature as an independent candidate subject to his satisfying the requirement of having been proposed by ten electors of the Constituency and other requirements as to the validity of a nomination paper. If he does not withdraw his candidature, then he would be a candidate validly nominated. Such a candidate who has not been able to secure sponsorship by a recognised political party at the time of filing his nomination papers but is still hopeful of securing such sponsorship, has the choice of filing nomination papers more than one. In one of the nomination papers subscribed by one elector of the Constituency he may declare himself to have been set up by a recognised political party. He may file yet another nomination paper declaring his candidature as an independent subscribed by ten electors of the Constituency as proposers. A single nomination paper though containing a declaration by the candidate of his having been set up by a recognised political party, may itself be subscribed by ten electors of the Constituency as proposers. In either case, his nomination would be valid insofar as the aspect of proposing is concerned. (Para 34)

       In the instant case the nomination papers were subscribed each by ten electors of the Constituency as proposers. The Returning Officer had no other option but to accept their nomination forms as none of them was otherwise disqualified and the nomination forms also did not suffer from any other infirmity. In fact, the filing of Forms A & B as regards them was not of any significance. The only question to which the Returning Officer was called upon to apply his mind was as regards the allotment of symbol to each one of them and that stage would have arisen only after the scrutiny was over and the stage for allotment of symbol arrived after 3.00 p.m. on 7.2.98. Each one of them was to contest the election either as a candidate set up by an unrecognised political party or as an independent candidate. The nomination paper of Pritam Chand did not mention the choice of any symbol. The nomination paper of Mohan Singh mentioned Telephone , the symbol of Himachal Vikas Congress, as the symbol of first preference and left the second and third preference blank. The Election Commission could have allotted an appropriate symbol to each one of the two candidates to which he was entitled subject to the nominations having been accepted by the Returning Officer. None of the two nomination papers suffered from any defect of substantial character and the Returning Officer was, therefore, not right in rejecting the said nomination papers. (Paras 33 & 39)

       The election was void and has been rightly held to be so by the High Court. Under clause (d) of Sub-section (1) of Section 100 of the Act, improper rejection of any nomination is by itself enough to avoid the election without requiring further proof of the result of the election having been materially affected. (Para 48)

       (ii) Representation of People Act, 1951-Section 36(4)-Conduct of Election Rules, 1961-Rule 4-Nomination paper-Defect of substantial character-Non-filling of space as to choice of symbol is not a defect of substantial character within meaning of Section 36(4)-Such deficiency in nomination paper saved by Rule 4 of conduct of Election Rules.

       Though Rule 4 of the Conduct of Elections Rules requires every nomination paper presented under sub-section (1) of Section 33 to be complete in such one of the Forms 2-A to 2-E as may be appropriate and, therefore, the blank space meant for showing three symbols in order of preference as symbols of the candidate s choice, has to be filled in, however, non-filling of the space as to choice of symbol is not a defect of substantial character. Such deficiency in the nomination paper is saved by the proviso to Rule 4 of the Conduct of Elections Rules, 1961 which provides that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of Section 36. Choosing a wrong symbol, leaving blank the space meant for filling the choice of symbols and an error in describing the symbol-are all defects not of substantial character. An independent candidate may mention as his preference the symbol reserved for a recognised political party, but that again will not be a defect of substantial character. (Para 30)

       (iii) Representation of People Act, 1951-Section 33-Constitution of India-Article 173-Oath of affirmation-Point of time to take-Oath taken after day of scrutiny would be invalid.

       An oath or affirmation taken before the submission of nomination form and on or after the day of scrutiny would be invalid depriving the nomination paper of its validity. (Para 45)

       (iv) Representation of People Act, 1951-Section 33(1)-Recognised political party-Definition of -Expression Recognised political party occurring in first proviso to Section 33(1) must be assigned same meaning as assigned to it by Symbols Order.

       Section 2(1)(f) defines "political party" to mean an association or a body of individual citizens of India registered with the Election Commission as a political party under Section 29A. The latter provision lays down the manner of such registration. Symbols Order, 1968 divides `registered political parties into recognised and unrecognised ones. For the purpose of Symbols Order as defined by Para 2(1)(h) thereof, `political party is a political party registered with the Commission under Section 29A of the Act. The Act does not define recognised political party. The expression "recognised political party" as occurring in first proviso to sub-section (1) of Section 33 of the Act must be assigned the same meaning as assigned to it by the Symbols Order. (Para 26)