HARi VISHNU KAMAm v. GOPAL SWARUP PATHAK December 18, 1969 (S. M: SIKRI, J. M. SHELAT, V. BHARGAVA, G. K. MITTER AND C. A. VAIDIALINGAM, JJ.J Presidentic.l and Vice-Presidential Elections Rules} 1962 framed under s. 21 of Presidential and Vice-Presidential Elections Act (31 of 1952)- Rule 4(1) requiring no1nination papers to be presented personal/sv by candidate or proposer or secoltder-No1nination paper sent
by post 1rhether properly presented-Whether ''receivetf' within the meaning of r. 4(2)-Returning Officer whether can reject such nomination paper be- fore date of scrutiny-Rule 4(1) whether rntmdatory or direcrory. At the election for the office of Vice-President held in 1969 the nomi- nation paper of one 'S' was •ent by post. The Returning Officer rejected it forthwith on the ground that it did not comply with the requirements of r. 4(1) of the Presidential and Vice-Presidential Rules, 1952 inasmuch as it. had not been presented by the candidate or his proposer or seconder, in person. The said nomination paper was not put up for scrutiny_under r. 6. The respondent won the election. The petitioner who was cine of the losing candidates filed an election petition under Art. 71 of the Con· stitution and s. 14 of the Presidential and Vice-Presidential Elections Ai:t. 195~ and prayed that the election of the respondent be declared void undc'r s. 18 of the Act.
The questions that fell for consideration were : ( i) whether the nomination of S had been wrongly rejected on the ground given; (ii) whether the Returning Officer had power to reject the nomi- nation before the date of scrutiny: (iii) whcthe'r r. 4(1) was directory or mandatory.
HELD: (il Rule 4( I) provides only one method of presentation i.e, delivery either in person by the candidate or by his proposer or seconder. Further it mentions the time within which the nomination pape'.r can be delve red i.e.· between the hours of eleven in the forenoon and three in the afternoon. Therefore. if the nomination paper is not presented in person either by the candidutc or by the proposer o'.r seconder it cannot be deem- ed to have been presented at all.
There is good reason for making this rule because otherwise not only the authenticity of the person sending the nomination paper but also the time of deHvery of the nomination paper would be in doubt.
Since the rule provides only one method of pi'esen- t·ation that method n1ust be followed. The provisions of rr. 4(2), 5 and 6 support the above conclusion. The nomination paper of 'S' could be rejected on the ground that it had not been presented in person and. received before 3 O'clock in the afternoon on the last date appointed under cl. (a) of sub-<'. (1) of r. 4. Such a nomination paper could not be treated to have been 'received" \liithin the meaning of sub·r. (2) or r. 4 and the Retu:rning Officer wa.;; entitled to reject it. [340 F-341 C. HJ
{ii) There was no force, in the submission that the Returning Officer should have waited till the date of the scrutiny. As soon as the Retrun· ing Otlice'r finds that a nominat!on paper h":" not b.een duly presented ~nd receiv-:d he must reject it outright at the time 1t 1s handed over to him. [HI A-342 Al
c H. V. KAMATH V, G. S. PATHAK (Sikri, J.) (iii) Rule 4(1) is mandatory. To hold otherwise would lead to utteF confusion and delay in the completion of the election. The Returning
Officer would not know who and where to inform about the date of scrutiny, he would not be certain whether it is genuine, and would have to take evidence as to whether it is a genuine nomination paper dr a
forged paper. [342 BJ ORIGINAL JURISDICTION : Election Petition No. 6 of 1969. c Petition under Art. 71 of the Constitution of India and S. 14 of the Presidential and Vice-Presidential Election Act (Act XXXI of 1952).
Sarjoo Prasad, P. Parameswara Rao and K. C. Dua, for the- petitioner. M. C. Seta/vad, N. A. Palkhiva/a, M. C. Chag/a, J. B. Dada- chanji, Ravinder Narain and 0. C. Mathur, for the respondent. Jagdish Swarup, Solicitor-Genera/, L. M. Singhvi and S. P'. Nayar, for the Election Commission and Union of India.
The Judgment of the Court was delivered by Sikri, J. This is a petition under Art. 71 of the Constitution and s. 14 of the Presidential & Vice-Presidential Elections Act (XXXI of 1952)-hereinafter referred to as the Act-praying
for a declaration that the election of Shri Gopal Swarup Pathak, respondent, to the office of the Vice-President of India is void. The main ground on which this declaration is sought is that the nomination paper of Dr. Ram Sharan Dass Sakhuja was
wrongly rejected by the Returning Officer on August 6, 1969. The respondent apart from meeimg this ground has raised a number of other issues including the issue whether the nomination. paper of Dr. Ram Sharan Dass Sakhuja was genuine, and if not. whether the petition is maintainable. The learned counsel for the respondent strongly pressed on us that we should first try this issqe suggested by him but as we have come to the conclusion that the petition must fail on the ground that the nomination paper of Dr. Ram Sharan Dass Sakhuja was rightly 'rejected on· August 6, 1969, it is not necessary to consider the other issues that arise out of the pleadings of the parties.
The two issues suggested by the petitioner which we propose- to discuss are : t. Whether the nomination of Dr. Ram Sharan Dass · Sakhuja has been wrongly rejected on the ground that the nomination paper was· not delivered in
person; [l 970] 3 s.c.R. 2. Whether the Returning Officer had power' to reject -the nomination even before the date of scrutiny. The relevant facts for determining these issues may now be ·'ct out.
On J 9th or 20th July, J 969, the office of the Vice- President of India fell vacant on the resignation of the then in- cumb.~nt, Shri V. V. Giri. The Election Commission appointed Shri B. N. Banerjee, Secretary, Rajya Sabha, as Returning Officer for the election 'of the Vice-President of India.
The Election Commission issued a notification under s. 4 appointing August 9. 1969, as the last date for filing nomination for election to the office of che Vice-President of India and August 11, 1969, for scrutiny of nomination papers.
A number of candidates filed c nomination papers and on August I I, I 969, the Returning Offi- cer made a record of proceedings. The relevant part of the pro- ceedings reads as follows :
"I held the scrutiny of nomination papers for the Vice-Presidential Election today, the 11th August, 1969, at 11 A.M. in my office (Room No. 29) in Parlia- ment House, New Delhi, 24 nomination papers were
delivered to me within the time and in the manner laid down in rule 4 of the Presidential and Vice-Presidential Election Rules. 1952. These nomination papers related to:- 1. Shri S. Nagappa
(One nomination paper) 2. Shri G. S. Pathak (Seventeen nomination papers) .1. Shri Sivashanmugam (Two nomination papers) (Jagannathan Pillai) 4. Smt. Manohara Nirnwla (One nomination paper)
Holkar 5. Shri B. ~. Mahaseth (One nomination paper) 6. Shri Hari Vishnu Karnath (Two nomination papers) 3. I gave the candidates and the others present all facilities for examining the nomination papers of all
the candidat.t:s delivered to me. The nomination paper were examined by them. No objection was raised to any nomination papers by any candidate or his repre- sentative. I scrutinised all the nomination papers and
I found that they satisfied the requirements of a valid nomination paper. I accordingly accepted ail the nomi- nation papers as valid and ma'de endorsements on all the 24 nomination papers accepting them.
c H. V. KAMATH V, G. S. PATHAK (Sikri, J.) 4. I also brought to the notice of those present that I had received some nominution papers, and some other papets _puiporting to be nomination papers, by
post, and that I. could not treat them as valid nomina- tion papers as they were not delivered to me in accord- ance with sub-rule ( 1) of rule 4 of tbe Presidential and Vice-Presidential Election Rules, 1952, and that they
also did not comply with the provisions of law in other respects. I furtlier mentioned to those present that there were in addition three other papers \vhich, though presented to me in person, did not comply with the
requirements of the law as they were not accompanied by the certified extracts from the electoral roll and suffered from other defects. l had not given any serial number to any of these papers and had rejected all of
them." One of the nominations referred to in para 4 of tne proceed– ings was that of Dr. Ram Sharan Dass Shakuja. It appears that the nomination papers of Dr. Shakuja, alleged to .be complete in every respect, were not delivered in person either by Dr. Shakuja or by the proposer or seconder in person to the Returning Officer· but were received by him by post on August 6, 1969. On that very day the Returning Officer Uid not treat the papers as valid as they were not delivered to him in aet•ordance with sub-r. ( 1) of r. 4 of the Presidential arid Vice-Presidential Elections Rules, 1952.
In order to discuss the issues mentioned above it is necessary to set out the relevant statutory provisions. Under s. 4 of the Act the Election Commission by notification appoints for ever} election (a) the last date for making nominations, (b) the date for scrutiny of nominations, (c) the last date for the withdrawal of candidatllres, and ( d) the date on which poll shall, if neces- sary, be taken.
lJnder s. 5 any person may be nominated· as a candidate for election to the office of Vice-President if he is quali- fied to be elected to that office vnder the Constitution. Sub-
section ( 2) of s. 5 prescribes that each candidate shall be nomi- nated by a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomi- nation and by two electors as proposer and seconder.
We may assume for the purpose of this case that !he condi- tions laid down ins. 5(2) were complied with. Section 6 deals witl1 the withdrawal of candidature and pro- vides that any candidate may withdraw his candidature by a notice in writing in the prescribed form subscribed by him and delivered before three o'clock in the afternoon on the date fixed [l 970] 3 S.C.R.
under clause ( c) of sub-section ( 1) of section 4, to the Return- ing Officer either by such candidate in person or by his proposer or seconder who has been authorised in this behalf in writing by such candidate.
The learned counsel for the petitioner rightly conceded that if .a candidate wants to withdraw his candidature the notice in writ- ing must be delivered to the Returning Oflicer in person by such candidate or by his proposer or seconder who has been authorised. In other words no candidate can withdraw by sending a notice in writing by post.
Section 18 gives the grounds for declaring the election of a .returned candidate to be void. One of the grounds is : "If the Supreme Court is of opinion that the nomi- nation of any candidate has been wrongly rejected or
the nomination of the successful candidate or of any other candidate who has not withdrawn his candidature has been wrongly accepted, the Supreme Court shall declare the election of the returned candidate to be
void." Section 21 gives powers to the Central Government to make rules and the two matters, among others, on which rules can be made are: "(d)' the form and manner in which nominations
may be made and the procedure to be followed in res· pect of the presentation of nomination papers; ( e) the scrutiny of nominations and, in particular, the manner in which such scrutiny shall be conducted
and the conditions and circumstances under which any person may be present or may enter objections there at." In pursuance of these powers rules were· framed. Rule 4 deals with the presentation of nomination papers and is in the following terms:
"4. ( l) On or before the date appointed under clause (a) of sub-section (l) of section 4, each candi- date shall, either in person or by his proposer or seconder, between the hours of eleven in the forenoon
and three in the afternoon, deliver to the Returning Ofli- ·cer at the place specified in this behalf in the public notice a: nomination paper completed in Form 2 in the case of a Presidential election, and in Form 3 in the case of a Vice-Presidential election, together with a certified copy of the entry relating to the candidate in the elec-
toral roll for the Parliamt:ntary constituency in which . he is registered. c c H. V, KAMATH V, G. S, PATHAK (Sikri, J.) (2) Any. nomination paper which is not received before three o'clock in the aftemoon on the last date
appointed under clause (a) ofsub-section (1) of sec- tion 4 or to which the certified copy referred to in sub- rule ( l) of this rule is not attached shall be rejected." Rule 5 prescribes the procedure on re•;eipt of nomination papers as follows :
"5. On the presentation of a. nmiiination paper, the Returning Officer shall- ( a) sign thereon a certificate stating the date and time of presentation of the nomination paper and enter
thereon its serial number; (b) inform the person or persons presenting the nomi- nation paper of the date, time and place fixed for the scrutiny of nominations; and ( c) cause to be affixed in smne conspicuous place in
his office a copy of the nomination paper as ce11i- fied and numbered under clause (a) of this rule." Rule 6 provides for the scrutiny of nominations and is in the following terms :
"6. ( 1 ) The candidates, one proposer and one seconder of each candidate, and one other person duly authorised in writing by such candidate, shall be entitled to be present at the time of scrutiny of nominations:
and the Returning Officer shall give them all reason- able facilities fo~ examining the nomination papers of all candidates which have been delievered within the time and in the ,manner laid down in rule 4.
(2) The Returning Officer shall then examine the · nomination papers and decide ~II objections "hich may be made to any of them. (3) The Returning Officer may, either on such objection or on his own motion, and after such summary
inquiry, if any, as he thinks necessary, reject a nomina- tion paper on any of the following grounds. namely : (a) that the candidate is not eligible for election as President or Vice-President. as the case may be, under
the Constitution; or (b) that the proposer or seconder is not qualified to subscribe a nomination paper under sub-section (2) of section 5; or ( 1970] 3 S.C.R. ( c) that the signature of the candidate, proposer or.
seconder is not genuine or ha' been obtained by fraud; or (d) that the nomination paper has not been duly completed and the defect or irregularity is of a substan- tial character; or
( e) that the proposer or seconder has subscribed, \vhethcr as proposer or seconder, another no1nination paper received earlier by the Returning Officer at the same election. ( 4) The Returning OHker shall hold the scrutiny
on the date appointed in this behalf under clause (b) of sub-section ( I ) of section 4 and shall not allow any adjournment of the proceedings except when such pro- ceedings are interrupted or obstructed by riot or open
violence or by causes beyond his control: Provided that, in case an objection is made, the candidate concerned shall, if he so requires, be allowed time to rebut it not later than the next day but one
following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date on which the proceedings have been adjourned. ( 5) The Returning Officer shall endorse on each,
nomination paper his decision either accepting or reject- ing it and if the nomination paper is re,iected, he shall record in writing a brief statement of his reasons for rejecting it."
The question whether a candidate is entitled to send his nomi- nation papers by post to the Returning Officer may now be con- 'idercd. It will he noticed that r. 4 provides oniy one manner
of presentation, i.e., delivery either in person by the candid~te or hy his proposer or seconder. Further it mentions the time within which it can be delivered, i.e., between the hours of eleven in the forenoon and three in the afternoon.
It seems to us that ir the nomina1ion papa b not presented in person either by the can- didate or by the proposer or the seconder it cannot be deemed to have been presented at all.
There seems to be good reason for making this rule because otherwise not only the authenticity of· the pc.rson sending the nomination paper will be in doubt hut abo the time of the delivery of the nomination paper would be in doubt.
Be that as it may. if the rul~ provides one method of oresen.- tation that method of presentatmn must be followed. That this c c H, V. KAMATH V; G. S. PATHAK (Sikri, J.) is the only method of presentation of nomination papers is borne out by subsequent provisions. Sub-rule (2) of r. 4 provides that any nomination paper which is not received before 3 o'clock in the afternoon on the last date appointed under cl. (a) of sub-s. ( 1) of s. 4 shall be rejected. This shows that even if a nomina- tion paper is presented pers0nally but after 3 o'clock in the after- noon it has to be rejected. The rule proceeds on the basis that the presentation must have been either in person or by the pro- poser or the seconder. II a nomination paper is received by post it would be difficult to say that it has been presented and received before 3 o'clock on the last date appointed under cl. (a) of sub-s. ( 1) of s. 4.
Rule 5 also proceeds on the basis that the presentation of a nomination paper must be in person because it requires the Re- turning Officer to sign thereon a certificate stating the date and time of presentation of the nomination paper and inform the person or persons presenting ti\e nomination paper of the date, time and place fixed for the scrutiny of nominations. It is clear that r. 5 contemplates only one method of presentation. This is again evident froln r. 6 wbich directs the Returning Officer inter alia to give the candidates and other authorised persons present reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in r. 4. In other words, the nomination papers which have not been delivered within time and in the manner laid down in r. 4 have not !to be shown for purposes of scrutiny. The learned counsel for the petitioner contends that sub-r. (2) of r. 4 gives two grounds of rejection, one that the nomina- tion paper is not received before 3 o'clock in the afternoon of the last date appointed under cl. (a) of sub-s. ( 1) of s. 4, and the second that the certified copy referred to iin sub-r. (1) of r. 4 is not attached. He further says that r. 6 gives five more grounds of rejection.
He says that the ground on which the nomination paper of Dr. Ram Sharan Dass Shakuja has been rejected is not covered by either sub.-r. (2) of r. 4 or r. 6 and accordingly the nomination paper of Dr. Ram Sharan Dass Shakuja could not
have been validly rejected. It seems to us that this nomination paper could be rejected on the ground that it has not been presented in person and received before 3 o'clock in the afternoon on the last date appointed under cl. (a) of sub-r. (I) of r. 4.
Such a nomination paper could not be treated to have been received within the meaning of sub-r. (2) of r. 4 and the Returning Officer was entitled to reject it. There is no force in the second submission that at any rate the Returning Officer should have waited till the date of the scrutiny L7Sup.(Cl)/70-7
[ 1970]3 S.C.R. because as soon as he finds that a nomination paper has not been duly presented and received he must reject it outright at the time it is handed over to him. The learned counsel contends that even if there has been a breach of r. 4 ( 1), the rule is not mandatory and the breach of it should not be deemed fatal.
We are unab.l~ to agree with this submission. As we have mentioned before, the rules contem- plate only one method of presentation and if that method is not followed the nomination papers cannot be held to be validly pre- sented and must be rejected outright. To hold otherwise would lead to utter confusion and delay in the completion of the election. The Returning Officer would not know who and where to inform about the date of scrutiny; he would not be ce_rtain whether it is genuine, and would have to take evidence as to whether it is a genuine nomination paper or a forged paper.
Jn the result the petition fails and is dismissed with costs. The petitioner will pay to the respol)dent Rs. 500 as total amount of costs. G.C. Petition dismissed. c