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SUPREME COURT OF INDIA
K.S. HEGDE AND A.N. GROVER, JJ.
1. Ram Awadesh Singh (In C. A. No. 1384 of 1970), 2. Smt Sumitra Devi (In C. A. No. 1584 of 1970), Appellants
Versus
1. Smt. Sumitra Devi and others (In C. A. No. 1384 of 1970); 2. Ram Awadesh Singh and others (In C. A. No. 1584 of 1970), Respondents.
Civil Appeals Nos. 1384 and 1584 of 1970, D/- 3-12-1971.
Advocates appeared
M/s. J. P. Goyal, Subhagmal Jain, S. P. Mukerjee, Pranab Chatterjee and G. P. Roy, Advocates, for Appellant (In C. A. No. 1384 of 1970) and for Respondent No. 1 (In C. A. No. 1584 of 1970); Mr. V. M. Tarkunde, Sr. Advocate, (Mr. P. N. Tiwari, Advocate, and M/s. O. C. Mathur, Ravinder Narain and J. B. Dadachanji, Advocates of M/s. J. B. Dadachanji, and Co., with him), for Respondent No.1 (In C. A. No. 1384 of 1970) and for Appellant (In C. A. 1584 of 1970).
Representation of the People Act, 1951 - Section 116-A,33,34,5,36,36(4),36(2)(b),100(1)9d) - Arising Election Petition - Challenge - Appellant respondent and others contested from Assembly Constituency - Last date for filing nomination was January and date of scrutiny was January - Poll took place votes were counted on next day - Appellant was declared elected as having obtained highest number of votes i.e - His nearest rival was respondent who secured votes - Appellant was nominee of Socialist party and respondent was nominee of Congress Party - After publication of results in official gazette respondent filed election petition challenging validity of appellant s election on various grounds - Principal ground taken by her was that result of election had been materially affected by improper acceptance of appellant s nomination papers - Whether defects found in nomination paper of appellant are of substantial character within meaning of that expression in Section 36 (4) of Act and whether it is established that acceptance of nomination of appellant had materially affected result of election - Whether defects found in nomination paper of appellant are of substantial character – Held, Election petitioner must establish that result of election in so far as it concerns returned candidate has been materially affected - He urged that word any in S. 100 means every nomination - On other hand it was urged on behalf of respondent that amendment S. 100 did not affect correctness of observation made by this Court and that observation had been quoted by this Court in two cases arising under amended provision - In view of our earlier finding about validity of appellant s nomination it is not necessary to decide controversy relating to interpretation of S.100 - Only thing said against his nomination is that his nomination paper was not properly filed in - Court have earlier seen that a duty is imposed on Returning Officer by sub-s (4) of S 33 to look into nomination paper when it is presented and to satisfy himself that names and electoral roll numbers of candidate and that of proposer as entered in nomination paper are same as those entered in electoral roll - In this case it is proved that Returning Officer did look into nomination paper but unfortunately he also did not notice that name of appellant had been removed from electoral roll of constituency - His nomination has materially affected result of election - This observation was not ratio of that decision - That apart after this observation was made Parliament has amended relevant provision and has made a distinction between improper rejection and improper acceptance of a nomination - That High Court failed to take an overall view of evidence adduced it merely contended itself by examining evidence relating to each one of instances - High Court erred in not relying on evidence relating to an instance when same is spoken to by a single witness and High Court erred in rejecting testimony of some of witnesses on ground that they were chance witnesses - Ordered Accordingly
Judgment
HEGDE, J.:- These are cross-appeals under Section 116-A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act) arising from an election petition filed by the first respondent (who for the sake of convenience will hereinafter be referred to as the respondent), before the High Court of Patna.
2. During the last mid term election for the Bihar Legislative Assembly held in the beginning of 1969, the appellant, the respondent and 11 others contested from the Arrah Assembly Constituency. The last date for filing the nomination was January 8, 1969 and the date of scrutiny was January 9, 1969. The poll took place on February 9, 1969 the votes were counted on the next day. The appellant was declared elected as having obtained the highest number of votes i.e. 13,556. His nearest rival was the respondent who secured 12,278 votes. The appellant was the nominee of the Socialist party and the respondent was the nominee of the Congress Party.
3. After the publication of the results in the official gazette, the respondent filed the election petition challenging the validity of the appellant s election on various grounds. The principal ground taken by her was that the result of the election had been materially affected by the improper acceptance of the appellant s nomination papers. She also charged the appellant with the commission of various corrupt practices to which reference will be made at a later stage. The learned trial Judge accepted the contention of the respondent that the result of the election had been materially affected by the improper acceptance of the appellant s nomination. He accordingly set aside the election of the appellant; but he rejected the contention of the respondent that the appellant was guilty of any corrupt practice. Aggrieved by the decision of the High Court. The appellant has filed Civil Appeal No. 1384 of 1970 and the respondent has filed Civil Appeal No. 1584 of 1970.
4. The principal questions that arise for decision are: (1) whether the defects found in the nomination paper of the appellant are of "substantial character" within the meaning of that expression in Section 36 (4) of the Act and (2) whether it is established that the acceptance of the nomination of the appellant had materially affected the result of the election.
5. After dealing with these questions, we shall proceed to consider the appeal of the respondent challenging the conclusion of the trial Court regarding the corrupt practices alleged to have been committed by the appellant.
6. Before proceeding to consider the relevant provisions in the Act. it is necessary to set out a few more facts. The appellant has been contesting from the Arrah constituency from about the year 1962. He represented that constituency before the dissoiution of the Bihar Legislative Assembly. He was registered as an elector in the Sandesh Assembly Constituency of the Bihar State. His name continued to be on the electoral roll of that constituency even at the time he filed his nomination from the Arrah constituency on January 6, 1969 i.e. two days before the last date for filling the nomination. It appears that in 1968, his name was also entered in the electoral roll of Arrah constituency. But latter on, evidently because his name stood entered in the Sandesh constituency, the same was deleted from the Arrah constituency. But this deletion was done without notice to the appellant. The deletion was shown in a separate supplementary list. In the main electoral roll, his name continued to be shown in the Arrah constituency. According to the appellant when he came to files his nomination paper, he was not aware of the fact that his name was entered in the electoral roll of the Arrah constituency. Therefore he had brought with him a certified copy of the electoral roll of the Sandesh constituency. But in the morning of January 6, 1969 he came to know that his name was also in the Arrah constituency. At that time he did not notice the d
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