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SUPREME COURT OF INDIA
G.N.Ray : J.S.Verma : K.Jayachandra Reddy : S.P.Bharucha : Yogeshwar Dayal
Kaka Joginder Singh Alias Dharti Pakad
Versus
K.R.Narayanan, Vice-president Of India
Case No. : 3 of 1992
Date of Decision : 7/16/93
Advocates Appeared: Banerjee M.K. : Ganguli A.K. : Gazal S. : Khatri Madhu : Lalit U.U. : Murlidhar S. : Nariman R.F. : Parekh P.H. : Ramaswamy G. : Sorabjee Soli J. : Srivastava A.K. : Subhashini A. : Tamta Binu : Tarnta Binu
Presidential and Vice-Presidential Elections Act, 1952 - Section 18 - Challenging the election - No evidence was required to be adduced - These provisions have to be read along with Rule 4 of the Presidential and Vice-Presidential Elections Rules, 1974 and Form therein which prescribes the form of the nomination paper for election to the office of the Vice-President of India. Form 3 requires mention of the name of parliamentary constituency in the electoral roll for which the candidate is registered as an elector - In nomination papers of the respondent name of parliamentary constituency in the electoral roll for which the returned candidate is shown to be registered as an elector is mentioned as - To each of the nomination papers, to satisfy the requirement of sub-section – Held, In English law as a general principle question is not what writer of the document intended or meant, but what a reasonable man reading the document would understand it to mean and that is test which ought to be applied as a general rule in cases of misnomer - which may embrace a number of other situations apart from misnomer on a writ, for example mistake as to identity in the making of a contract - Test must be How would a reasonable person receiving the document take it - If, in all circumstances of the case and looking at the document as a whole, he would say to himself : Of course it must mean me, but they have got my name wrong, then, there is a case of mere misnomer - If, on other hand, he would say cannot tell from document itself whether they mean me or not and I shall have to make inquiries then it seems to me that one is getting beyond the realm of misnomer - Viewed in this manner also, there can be no doubt that mistake or defect, if any in nomination paper of the respondent was not of a substantial character and, therefore, it could not be a ground to permit rejection of the nomination paper in accordance with Section 5-E(3(e) of the Act. Had the defect been pointed out by anyone at the time of scrutiny Returning Officer would have certainly, and rightly, permitted correction of the same, since it was only a technical defect - However no one, not even the petitioner, had any such doubt, as the identity of the respondent and his eligibility as a candidate was undisputed. For this reason, this objection was not even raised at the time of scrutiny, but only as an afterthought in the election petition - mistake in mentioning the name of the parliamentary constituency as instead of when the assembly constituency in which the respondent was registered as an elector therein was correctly described as 94 Assembly Constituency was at best a misnomer which misled no one, not even the petitioner, and it was therefore, not a defect of substantial nature - True test for determining whether a is a mere misnomer or defect of substantial nature was indicated in Brothers, Ltd. as under - petition is dismissed
Judgment
J.S.VERMA, J.
(1) THIS election petition calls in question the election of Shri K.R. Narayanan as the Vice-President of India. A notification dated 17/07/1992 was issued by the Returning Officer for the election of the Vice-President of India, specifying 31/07/1992 as the last date for filing the nominations. Petitioner Kaka Joginder Singh alias Dharti Pakad and respondent Shri K.R. Narayanan filed their nomination papers; and in the scrutiny held on 1/08/1992, the nomination papers of both of them were found to be valid by the Returning Officer. Petitioner raised objection to the validity of the nomination papers filed by the respondent, at the time of scrutiny, but the objections were rejected. These two persons alone were declared to be validly nominated candidates; and the polling was held on 19/08/1992 as a result of which the respondent, Shri K.R. Narayanan, was declared duly elected as the Vice-President of India. On 17/09/1992, this election petition was filed challenging the election.
(2) THE election of the returned candidate is challenged by the petitioner on two grounds, namely, (i) wrong acceptance of the nomination of the returned candidate, a ground under Section 18(l)(c) of the Presidential and Vice-Presidential Elections Act, 1952 (called the Act); and (ii) commission of the offence of undue influence at the election, a ground under Section 18(l)(a) of the Act, by issuance of a whip by the Congress (1 Party to vote for the respondent at the election. The material part of Section 18, for the purpose of the present election petition, is as under:
"18. (1 If the Supreme court is of opinion,-
(A) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the consent of the returned candidate; or
(B) * * *
(C) that the nomination of any candidate has been wrongly rejected or the nomination of the successful candidate has been wrongly accepted;
THE Supreme court shall declare the election of the returned candidate to be void.
(2 For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Ch. IX-A of the Indian Penal Code."
(3) THE facts relevant for the aforesaid two grounds on which the election petition has been filed are now stated. The competence of the petitioner to file this election petition as a candidate is not in dispute. The only question is : Whether both or any of the grounds on which the election petition has been filed have been made out?
(4) TO support the ground in Section 18(l)(c) of wrong acceptance of the nomination of the returned candidate - the respondent, the petitioner alleges that there was substantial defect in all the nomination papers of the returned candidate which required their rejection in accordance with Section 5-E(3(e) of the Act by the Returning Officer, at the time of scrutiny. It is alleged that there was a failure to comply with the requirement of Ss. (1 and (2 of Section 5-B, inasmuch as the nomination papers of the returned candidate were not completed in the prescribed form, and no nomination paper was accompanied by a certified copy of the entry relating to the candidate in the electoral roll for the parliamentary constituency in which the candidate is registered as an elector. These provisions have to be read along with Rule 4 of the Presidential and Vice-Presidential Elections Rules, 1974 (called the Rules) and Form 3 therein which prescribes the form of the nomination paper for election to the office of the Vice-President of India. Form 3 requires mention of the name of the parliamentary constituency in the electoral roll for which the candidate is registered as an elector. In the nomination papers of the respondent, the name of the parliamentary constituency in the electoral roll for which the returned candidate is shown to be registered as an elector is mentioned as Ott
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