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2003(2) JLJ 308
(SUPREME COURT)
R.C. Lahoti, Brijesh Kumar and H.K. Serna, JJ.
Shaligram Shrivastava v. Naresh Singh Patel
Civil Appeal No. 4023 of 2001; against the judgment of
M.P. High Court, passed in Election Petition No. 1 of 2000;
Derided on 19.12.2002.
Nomination paper of one Bhagwan Singh was rejected at the time of scrutiny on the ground that he had not filled up the pro forma prescribed by the Election Commission vide the letter dated 28.8.1997. The said pro forma 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 the People Act, 1951. [Para 2
The High Court, considering the points raised by the petitioner, came to the conclusion that non-submission of the declaration as required under the instructions dated 28.8.1997 is a defect of substantial character. Hence the nomination paper was rightly rejected by the Returning Officer. [Para 4
Held: Providing a pro forma, 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, he 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
The candidate had failed to furnish such information as sought on the pro forma 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 the 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. Judgment of High Court affirmed. [Para 17
(2) Constitution of India -- Art. 136 -- point not raised in special leave petition or before the High Court -- cannot be allowed to be argued orally while arguing civil appeal. [Para 5
(3) Representation of the People Act, 1951 -- Ss. 8 and 36 (2) (a) -- Conduct of Election Rules, 1961 -- R. 4 Form 2-B -- simply filling of Form 2-B that candidate is qualified -- is not sufficient for purposes of S. 8 -- nomination or such point cannot be scrutinised as required under S. 36(2) (a). Judgment of High Court affirmed. [Paras 13, 14 & 15
¼1½ yksd çfrfuf/kRo vf/kfu;e] 1951&/kkjk 36¼2½ rFkk 8&vHFkhZ /kkjk 8 ds vuqlkj fl)nks"k Bgjk;k x;k gS vFkok ugha] bl ckjs esa tkudkjh&uefunsZf‘ku i= Hkjrs le; fjVfu±x vf/kdkjh çR;sd vH;FkhZ ls tkudkjh çkIr djus dks ck/; gS&tkudkjh ugha nh xbZ&laoh{kk ds le; vH;FkhZ vFkok mldk vH;FkhZ mifLFkr ugha&ukefunsZ‘kui= Bhd gh [kkfjtA Hkxokuflag dk ukefunsZ‘kui= laoh{kk ds le; bl vk/kkj ij [kkfjt dj fn;k x;k fd mlus fuokZpu vk;ksx ds i= fnukad 28-8-1997 }kjk fofgr çksQkekZ ugha Hkjk FkkA mDr çksQkekZ dk Hkjk tkuk ;g vfHkfuf‘pr djus ds fy, visf{kr Fkk fd vH;FkhZ yksd çfrfuf/kRo vf/kfu;e] 1951 dh /kkjk 8 esa mfYyf[kr fdlh vijk/k ds fy, fl)nks"k Bgjk;k x;k gS vFkok ughaA ¿iSjk 2 ;kph }kjk mBk, x, fcanqvksa ij fopkj djus ij mPp U;k;ky; }kjk fu"d"kZ fudkyk x;k fd vuqns‘k fnukad 28-8-1997 ds v/khu ;Fkkisf{kr ?kks.kk ugha dh tkuk lkjoku~ çÑfr dh =qfV gSA vr%] fjVfu±x vf/kdkjh }kjk ukefunsZ‘kui= Bhd gh [kkfjt fd;k x;kA ¿iSjk 4 vfHkfu/kkZfjr % çksQkekZ miyC/k djkuk] O;fDr vgZ gS vkSj fujfgZr ugha] bl ckjs esa tk¡p djus ds fy, vf/kfu;e dh /kkjk 8 ds çdk‘k esa vko‘;d vkSj lqlaxr tkudkjh çkIr vf/kfu;e dh /kkjk 36 dh mi/kkjk ¼2½ ds v/khu iw.kZr% vko`Ùk dk;Z vFkok ÑR; gSA fjVfu±x vf/kdkjh laoh{kk ds le; vFkok mlls iwoZ nh tkus okyh ,slh tkudkjh dh bZIlk djus dks çkf/kÑr gSA ;fn vH;FkhZ ,slh tkudkjh nsus esa foQy jgrk gS rFkk ukefunsZ‘kui=ksa dh laoh{kk ds le; Lo;a vuqifLFkr Hkh jgrk gS] rc og Li"V :i ls vf/kfu;e dh /kkjk 8 ds çdk‘k esa mlds vgZ ugha gksus vFkok fujgZ gksus ds laca/k esa vf/kfu;e dh /kkjk 36 dh mi/kkjk ¼2½ ds v/khu fjVfu±x vf/kdkjh }kjk dh tk jgh dkuwuh tk¡p ls cp jgk gSA blls ukefunsZ‘kui= esa lkjoku~ çÑfr dh =qfV ls xzLr gks x;k rFkk fjVfu±x vf/kdkjh }kjk mldh ukeatwjh mlds vf/kdkjh ds Hkhrj FkhA mPp U;k;ky; dk fu.kZ; vfHkiq"VA ¿iSjk 17 ¼2½ Hkkjr dk lafo/kku&vuq- 136&fcanq fo‘ks"k btktr ;kfpdk esa vFkok mPp U;k;ky; ds le{k ugha mBk;k x;k&flfoy vihy esa cgl ds le; ekSf[kd :i ls ml ij cgl djus ugha nh tk ldrhA ¿iSjk 5 ¼3½ yksd çfrfuf/kRo vf/kfu;e] 1951&/kkjk 8 rFkk 36¼2½ ¼d½&fuokZpu dk lapkyu fu;e] 1961&fu-4 ç:i 2&[k&dsoy ç:i 2&[k dk Hkjk tkuk fd vH;FkhZ vgZ gS&/kkjk 8 ds ç;kstukFkZ i;kZIr ugha gS&/kkjk 36¼2½ ¼d½ ds v/khu ;Fkkisf{kr ukekadu vFkok ,sls fcanq dh laoh{kk ugha dh tk ldrhA mPp U;k;ky; dk fu.kZ; vfHkiq"VA ¿iSjk 13] 14 ,oa 15
Brijesh Kumar, J. -- 1. 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 pro forma prescribed by the Election Commission vide the letter dated 28.8.1997. The said pro forma 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 the People Act, 1951 (for short 'the Act'). Interestingly, the candidate, namely, Bhagwan Singh had filed an affidavit that information given in the pro forma was correct but the pro forma 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 pro forma prescribed under the letter dated 28.8.1997, since no such pro forma was statutorily provided under the provisions of the Act or under the Rules framed there under. It is contended that the Commission could not legislate to prescribe a pro forma; 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 the 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 pro forma 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 instructions dated 28.8.1997 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 the 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 was this Court 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 28.8.1997 contained in the letter P-1 and the letter dated 6.1.1998 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 the letter dated 28.8.1997, 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 pro forma annexed therewith seeking information with a
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