IMPORTANT POINT
Non-submission of the declaration as required under the instructions dated 28.8.1997 regarding information under Section 8 of Representation of People Act, 1951 is a defect of substantial nature and hence nomination paper was rightly rejected by the Returning Officer.

Headnote:(i) Representation of People Act, 1951-Sections 8, 30, 33, 34 and 36-Appointment of date of Nomination etc., Presentation and Scrutiny of Nominations-Scrutiny to see whether candidate is qualified or disqualified-Returning Officer seeking relevant information in the light of Section 8 of the Act-Whether this function is covered by Section 36(2) of the Act? (Yes).
       Held : At the time of scrutiny the Returning Officer is entitled to satisfy himself that a candidate is qualified and not disqualified. Sub-section (2) of Section 36 authorises him to hold an enquiry on his own motions, though summary in nature. The Returning Officer furnished a proforma to the candidates to be filled on affidavit and filed on or before the date and time fixed for scrutiny of the nomination paper. Therefore providing a proforma, eliciting necessary and relevant information in the light of Section 8 of the Act to enquire as to whether the person is qualified and not disqualified, is an act or function fully covered under sub-section (2) of Section 36 of the Act. The Returning Officer is authorized to seek such information to be furnished at the time or before scrutiny. If the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, is obviously avoiding a statutory enquiry being conducted by the Returning Officer under Sub-section (2) of Section 36 of the Act relating to his being not qualified or disqualified in the light of Section 8 of the Act . It is bound to result in defect of a substantial character in the nomination. (Para 10)
       (ii) Constitution of India-Article 324-Status of the instructions issued by Election Commission-Representation of People Act, 1951-Section 8-Disqualification of candidate on ground of previous conviction for certain offences-Instructions contained in Letter P1 dated 28.8.97 and 6.1.98 issued by office of Commission-Whether Article 324 of Constitution will be attracted? (Yes)-Candidate failing to furnish such information-Nomination rejected-Whether correct? (Yes)-Result-Appeal dismissed with costs.
       Held : In our view the bald declaration that the candidate is qualified and not disqualified is not at all sufficient to scrutinize the nomination paper from the angle of Section 8 of the Act. Clause (a) of sub-section 2 of Section 36 provides for scrutiny of the nomination paper to see whether he is disqualified for being chosen to fill the seat or not, amongst others in the light of part II of the Act; as indicated earlier, Section 8 falls in part II of the Act. Therefore, the declaration in the nomination paper that the candidate is qualified and not disqualified may only be a mere basic statement necessary to fill up the nomination paper but it contains no information or facts relevant for the purposes of scrutinising the nomination paper in the light of Section 8 of the Act which falls in Part II of the Act. For the purpose of scrutiny further information is necessary. The scrutiny may call for even suo motu inquiry by the Returning Officer though summary in nature. It is one of the statutory duties of the Returning Officer to scrutinize the nomination paper in the light of section 8 of the Act and he is statutorily authorised to hold a summary inquiry about the qualification and disqualification of a candidate (See Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796). Such a power which vests in the Returning Officer is not dependent upon any instructions issued by the Election Commission, therefore, it is not necessary to enter into the controversy which is sought to be raised as to whether the instructions issued by the Election Commission are in exercise of its power under Article 324 or not. The Returning Officer is supposed to have the necessary information at the time of scrutiny of the nomination paper and for that purpose he can very well require a candidate to furnish information relevant for the purpose of section 8 of the Act before or on the date of scrutiny. At best it can be said that the Election Commission by its letter dated 28.8.1997 had brought to the notice of the Returning Officers certain decisions of different High Courts in regard to disqualification under Section 8 of the Act. It was further desired that such a scrutiny be made by the Returning Officers looking to the menace of criminalisation of the politics. Barring the fact that the instructions apprised the Returning officers of the position under law in the light of the judgments of the High Courts, nothing else was provided thereunder which was already not within the power of the Returning Officer under the statutory provisions rather it was a part of their duty to scrutinize the nomination papers in the light of Section 8 of the Act which implies that he is authorised to seek necessary information for the purpose. It can be suo motu as well. Since such information is necessary and relevant for the purpose of scrutiny of the nomination paper under Section 36(2), in the light of Section 8 of the Act, it can well be furnished on a format provided to the candidate by the Returning Officer and it becomes his duty to furnish such information so that a Returning Officer may discharge his statutory duty to scrutinize the nomination paper effectively, properly and in consonance with the provisions of law. Here we would like to point out that the directive of the Commission states "when a candidate files his nomination paper the Returning Officer or, as the case may be, the Returning Officer receiving the nomination paper shall hand over to him the enclosed letter, together with the proforma of affidavit annexed thereto to ascertain at the time of scrutiny of nomination as to whether the candidature is valid from the angle of Section 8 of RP Act, 1959", it would be better that for future the directive may find it feasible to require the Returning Officer to hand over the proforma of affidavit while issuing the nomination paper itself. In the case in hand the candidate had failed to furnish such information as sought on the proforma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of the Act. It certainly rendered the nomination paper suffering from defect of substantial character and the Returning Officer was within his rights in rejecting the same. The appeal therefore, lacks merit and it is dismissed with costs. (Paras 13, 14, 15, 16, 17 and 18)

JUDGMENT

Brijesh Kumar, J.-The defeated candidate in the bye-election held in February, 2000 to the legislative assembly, Madhya Pradesh from Bhojpur assembly constituency, filed an election petition in the High Court of Madhya Pradesh challenging the declaration of the respondent as elected from the aforesaid assembly constituency. The election petition has been dismissed, hence this appeal.

2. Briefly, the facts are that nomination paper of one Bhagwan Singh was rejected at the time of scrutiny on the ground that he had not filled up the proforma prescribed by the Election Commission vide letter dated 28.8.97. The said proforma was required to be filled up to ascertain as to whether the candidate had been convicted or not for any offence mentioned in Section 8 of the Representation of People Act, 1951 (for short the Act ). Interestingly, the candidate, namely, Bhagwan Singh had filed an affidavit that information given in the proforma was correct but the proforma itself was left blank. He had though filled the nomination paper on Form 2-B as prescribed under Rule 4 of the Conduct of Elections Rules, 1961 declaring that the candidate was qualified and also not disqualified for being chosen to fill the seat. According to the Election petitioner the nomination paper of Bhagwan Singh could not be rejected on the ground that he had not filled up the proforma prescribed under the letter dated 28.8.97, since no such proforma was statutorily provided under the provisions of the Act nor under the rules framed thereunder. It is contended that the commission could not legislate to prescribe a proforma; at best it can only be an executive instruction of the Election Commission whereas the petitioner had filled the form prescribed under the Rules which did not suffer from any defect.

3. Yet another ground taken up by the petitioner was that failure to comply with executive direction of the Election Commission would not entail the consequence of rejection of the nomination paper much less where it is not provided that failure to fill up the proforma would result in rejection of the nomination paper.

4. The High Court considering the points raised by the petitioner came to the conclusion that non-submission of the declaration as required under the instruction dated 28.8.97 is a defect of substantial character. Hence the nomination paper was rightly rejected by the Returning Officer. At this juncture it may also be mentioned that a question seems to have been raised, as to whether election petition could be entertained, in view of the fact that Bhagwan Singh, whose nomination paper was rejected neither approached the court nor he ever raised any objection to the rejection of his nomination paper, but this point does not seem to have been pursued before the High Court nor this court was addressed on the said point. We therefore, need not digress on that question and proceed to consider the matter on merit of the appeal on the grounds canvassed before us.

5. Before entering into the merits of the other points it would be appropriate to deal with one question raised by the appellant to the effect that the instructions dated 28.8.97 contained in letter P-1 and the letter dated 6.1.98 have not been issued by the Election Commission. On the other hand it is submitted that these letters have been issued by the officers of the Commission, hence Article 324 of the Constitution will not be attracted. This point though argued at length, holds no water and it is destined to be rejected. Referring to letter dated 28.8.97, it is submitted that it has been issued only by the Director (Law) of the Election Commission. It is further pointed out that the said letter has been issued only to operationalise the directive of the Commission. The Commission had desired that at the time a nomination paper is filed, the candidate should also fill up the proforma annexed therewith seeking information with a view to ascertain, at the time of scrutiny, as to whethe

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2002 Supreme(SC) 87

IMPORTANT POINTNon-submission of the declaration as required under the instructions dated 28.8.1997 regarding information under Section 8 of Representation of People Act, 1951 is a defect of substantial nature and hence nomination paper was rightly rejected by the Returning Officer.

IMPORTANT POINT
Non-submission of the declaration as required under the instructions dated 28.8.1997 regarding information under Section 8 of Representation of People Act, 1951 is a defect of substantial nature and hence nomination paper was rightly rejected by the Returning Officer.