2012 Supreme(Mad) 2402

2012 (3) LW 430
High Court of Judicature at Madras
V. DHANAPALAN
K. Kalaimani
Versus
S. Mathiarasan & Another
E.P.No.6 of 2009
Decided on: 13-06-2012

The Returning Officer is bound to accept the nomination paper if the names and Electoral Roll numbers of the candidate and his proposer are the same as those entered in the Electoral Rolls, and cannot reject the nomination paper on the ground of any defect which is not of a substantial character.

Headnote:

The Court held that the Returning Officer improperly rejected the Petitioner's nomination papers for minor discrepancies in the serial numbers of the proposers, which were curable defects. The Court found that the Returning Officer failed to exercise his mandatory duty under Section 33(4) of the Representation of the People Act, 1951, to satisfy himself that the names and Electoral Roll numbers of the candidate and his proposer were the same as those entered in the Electoral Rolls. The Court also found that the Returning Officer violated Section 36(4) of the Act by rejecting the nomination paper on the ground of a defect that was not of a substantial character. The Court further held that the Returning Officer was bound to issue a rejection order, stating reasons for rejection of the nomination paper, and that the Election Petition was not infructuous, despite the constitution of the 14th Legislative Assembly.

Fact of the Case:

The Petitioner, an independent candidate, filed his nomination papers for the 197-Ilayangudi Assembly Constituency, Tamil Nadu, in a by-election. The Returning Officer rejected the nomination papers on the ground that the serial numbers of three proposers in the nomination paper did not match the serial numbers in the Electoral Roll. The Petitioner represented to the Returning Officer and the Chief Electoral Officer, but no action was taken. The Petitioner filed an Election Petition, challenging the rejection of his nomination papers and seeking a declaration that the election of the First Respondent/returned candidate was void.

Finding of the Court:

The Court found that the Returning Officer had improperly rejected the Petitioner's nomination papers for minor discrepancies in the serial numbers of the proposers, which were curable defects. The Court also found that the Returning Officer had violated Section 36(4) of the Act by rejecting the nomination paper on the ground of a defect that was not of a substantial character. The Court further held that the Returning Officer was bound to issue a rejection order, stating reasons for rejection of the nomination paper, and that the Election Petition was not infructuous, despite the constitution of the 14th Legislative Assembly.

Issues: 1. Whether the Returning Officer has failed in his mandatory duty under Section 33(4) of the Representation of the People Act, 1951, at the time of submission of nomination paper by the Petitioner, to make a preliminary verification of the nomination paper? 2. Whether the Returning Officer of 197-Ilayangudi Assembly Constituency has violated Section 36(4) of the Act? 3. Whether the rejection of nomination of the Petitioner without an order is valid and sustainable? 4. Whether the Returning Officer is bound to issue a rejection order, stating reasons for rejection of the nomination paper? 5. Whether the Election Petition has become infructuous, in view of the constitution of 14th Legislative Assembly? 6. Whether in the absence of the Election Petitioner and his proposer during the scrutiny, the Election Petitioner can put the burden on the Returning Officer to suo motu scrutinize the names and roll numbers of the Petitioner and his proposer as entered in the nomination paper with the Electoral Rolls?

Ratio Decidendi: The Court held that the Returning Officer had improperly rejected the Petitioner's nomination papers for minor discrepancies in the serial numbers of the proposers, which were curable defects. The Court found that the Returning Officer had violated Section 36(4) of the Act by rejecting the nomination paper on the ground of a defect that was not of a substantial character. The Court further held that the Returning Officer was bound to issue a rejection order, stating reasons for rejection of the nomination paper, and that the Election Petition was not infructuous, despite the constitution of the 14th Legislative Assembly. The Court relied on the following precedents: 1. Hira Singh Pal v. Madan Lal, AIR 1968 SC 1179 2. Jagannath Ramchandra Nunekar v. Genu Govind Kadam and others, 1989 Supp (1) SCC 55 3. Rakesh Kumar v. Sunil Kumar, AIR 1999 SC 935 4. Election Commission of India v. Ashok Kumar and others, 2000 (8) SCC 216 5. Ram Bhual v. Ambika Singh, 2005 AIR SCW 5024 6. Anil Baluni v. Surendra Singh Negi, 2005 (5) SCC 793 7. Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite-Patil, 8. Ramesh Rout v. Rabindra Nath Rout, 2012 (1) SCC 762 9. Mathura Prasad v. Ajeem Khan, 1990 (3) SCC 659 10. Rafiq Khan and another v. Laxmi Narayan Sharma, 1997 (2) SCC 228 11. Hari Shanker Jain v. Sonia Gandhi, 2001 (8) SCC 233 12. Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, 1987 Supp SCC 93 13. Michael B. Fernandes v. C.R. Jaffar Sharief and others, AIR 2002 SC 1041 : 2002(3) SCC 52

Final Decision: The Court allowed the Election Petition and declared the rejection of the Petitioner's nomination papers as improper, illegal, void and contrary to the provisions of the Representation of the People Act, 1951, and the Returning Officer's Instructions, 2009, issued by the Election Commission of India. The Court also set aside the entire election process, including the election of the First Respondent as returned candidate. The Court directed the Returning Officer, the Chief Electoral Officer of the relevant period and the Election Commission of India to jointly and severally pay costs of Rs.25,000/- (Rupees Twenty Five Thousand only) to the Election Petitioner within a period of one month from the date of receipt or production of a copy of the order.