9911796707
TMI Blog1978 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as the Act) and of any rules and orders made there under, for the time being in force, have been made applicable to the election of the members of the Metropolitan Council of Delhi (hereinafter referred to as the Metropolitan Council). S. 10 of the said Act provides that the Metropolitan Council, unless sooner dissolved, shall continue for five years, from the date appointed for its first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Metropolitan Council. The last election of members to the Metropolitan Council took place in 1972 for the term of 5 years and the same expired in 1977 which necessitated the elections for 56 members to the Metropolitan Council from 56 territorial constituencies. The election programme as notified by the Election Commission was as under. Last date of filing the nomination papers 18-5-1977 Date of scrutiny of nomination papers 19-5-1977 Last date of withdrawal 21-5-1977 Date of Polling 12-6-1977 Date of counting 14-6-1977 3. Shri Ashok Kumar, Sub-Divisional Magistrate, Shahdara was appointed as the Returning Officer in respect of constituency No. 33, the const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 (though mentioned as polling station No. 55 in the Election Petition) Jagjiwan Nagar, Gali Nos. 1 to 9 which contains 1287 votes and 392 voters belonging to Jyoti Nagar Colony, Loni Road, in polling station No. 26 are stated to have been illegally excluded from constituency No. 33, in non-compliance or in contravention of the provisions of the Constitution, the Act, the Representation of the People Act, 1950 and the rules made there under. It is also pleaded that by this inclusion and exclusion the electoral roll which related to constituency No. 33 stood disturbed and that had the wrongful reception of unauthorised and void votes not taken place and had the refusal of eligible voters not taken place the petitioner would have succeeded in the election in question. The election of the respondent is alleged to be void under Ss. 100(1)(d)(iii) and 100(1)(d)(iv) of the Act. 5. The defense of the respondent in the written statement is that in the nomination papers filed by Shri Devinder Kumar it was stated that his name was entered at Serial No. 956 in Part No. 329 of the electoral roll for Chandni Chowk Parliamentary Constituency; that he was required under S. 33(5) of the Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. 4. If issue No. 2 is held in favor of the petitioner and issue No. 3 against the respondent whether the result of the election in so far as it concerns the respondent has been materially affected by the improper reception or exclusion of votes? O.P.P. 5. Relief. Note: Under issue No. 2 (Polling station No 55 is corrected to No. 15 and issue is re-cast as there is no real dispute for the number of polling station of Jagjiwan Nagar, Gali Nos. 1 to 9 which contains 1287 votes as number 15 in constituency No. 33 as given in the tentative list of the polling stations.) 7. Issue No. 1 I may recall the petitioner's case which is that Shri Devinder Kumar was a voter at Serial No. 1021 Part 416-C pertaining to the relevant East Delhi Parliamentary Constituency Electoral Roll and the Returning Officer without verifying this fact and in spite of Mr. Devinder Kumar and his agent stating this fact to the Returning Officer, Shri Devinder Kumar's nomination papers were improperly rejected without giving even an opportunity to substantiate this fact. It is argued that the rules relating to the filling up of the nomination forms are not mandatory but are merely directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to prove for a valid nomination that they are registered voters. For that purpose correct particulars of their electoral roll numbers are required to be furnished. Under R. 2 (f) of the Conduct of Election Rules 1961, the electoral roll number of a person means: (i) the Serial number of the entry in the electoral roll in respect of that person; (ii) the Serial number of the part of the electoral roll in which such entry occurs; and (iii) the name of the constituency to which the electoral roll relates; Thus the nomination papers should include insertion of the Serial number, part number of the electoral roll and the name of the electoral constituency. The requirements as to the mentioning of their full names as well as their electoral roll numbers is to enable the Returning Officer to satisfy himself on the presentation of a nomination paper that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. This is also intended to furnish evidence at the time of preliminary examination of the nomination paper to see whether the candidate or the proposer are registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt waiting for Shri Devinder Kumar till 3 P. M. and he had noted that fact on the record and that no copy of the electoral roll or any relevant part thereof or a certified copy of the entries accompanied any of the two nomination papers. The order of the Returning Officer on nomination paper Ext. PW-1/4 is Ext. PW-1/6 and is to this effect: I have waited for the candidate till 3 P. M. today but he has not produced the certified copy or any other documentary evidence of his electoral roll number which is outside the constituency from which he is contesting. In view of his failure to this I reject his nomination paper. Sd/- Ashok Kumar R. O. The order on the nomination paper Ext. PW-1/5 is Ext. PW-1/7 and reads as follows: I have waited for the candidate till 3 P.M. today but he has not produced any documentary evidence (viz.) certified copy etc. of his electoral roll (since he is contesting from a different constituency). In these circumstances I reject his nomination paper. Sd/- Ashok Kumar 19-5-1977 R. O. It is clear that Shri Devinder Kumar did not produce either a copy of the electoral roll of that constituency particulars of which- are given in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper. (see Ranjit Singh v. Pritam Singh, [1966]3SCR543 ). When the certified copy of the electoral roll is not produced, then there is noncompliance of the provisions of Section 33(5) of the Act and the nomination paper was rightly rejected by the Returning Officer on 19-5-1977. 10. In Khyali Ram v. Harlal Singh (1967) 17 Raj 938 relied upon by Shri D. D. Chawla, learned counsel for the respondent the fact of the case was that the Returning Officer before whom the nomination papers were filed was also the Returning Officer of the constituency in the roll of which the candidate's name was entered as a voter; even then it was held that it should not render the rejection of the nomination paper as improper as the provisions of S. 33(5) of the Act require that where a candidate who files the nomination is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposes that the Returning Officer orally told Shri Devinder Kumar that he should bring the certified copy of the electoral roll of the voter's number given in the nomination papers, that Shri Devinder Kumar told the Returning Officer that he could verify the voter number from the records available with him; that he and Shri Gopal Krishan told the Returning Officer to verify the voter's number of Shri Devinder Kumar from the records and that they were told that they could speak only when their turn comes. In the cross-examination, how ever, Shri Hari Om Kapur states that he is not aware as to which Serial number of the voter was given by Shri Devinder Kumar in his nomination papers. Shri Bharat Bhushan, petitioner as PW-8 deposes that the Returning Officer told Shri Devinder Kumar to produce the certified copy of the voter's list in regard to the voting number as given in the nomination papers; that Shri Devinder Kumar showed the voter list printed in Hindi of the area of Nand Nagri where the name of Shri Devinder Kumar was entered as a voter; that Shri Devinder later on showed the same to him and that the Returning Officer told Shri Devinder Kumar that he is not concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Kumar had shown him a voter's list in Hindi showing the name of Shri Devinder Kumar, 4/C-3/ 543 Nand Nagri as a voter. This raised an ambiguity and the counsel for the respondent had it clarified by inviting the attention of the witness to the orders on Exts. PW-1/6 and PW-1/7, when the witness stated that since I have recorded that Shri Devinder Kumar was waited till 3 P.M., it means that Shri Devinder Kumar was not present at all on 19-5-1977. 14. The Returning Officer is of the rank of a Sub Divisional Magistrate and is enjoined in law to scrutinise the nomination papers in accordance with the provisions of Ss. 33 and 36 of the Act and evidence is also that he chocked the particulars of Shri Devinder Kumar and other candidates given in the nomination papers at the time of presentation. His evidence is that he did not check up the electoral roll number of Shri Devinder Kumar as it related to a different constituency and he was not in possession of the electoral roll of that constituency. The orders on the nomination papers do record that the Returning Officer had waited for the candidate till 3 P. M. The Returning Officer is categorical in his statement that Shri Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dication towards frank and truthful testimony of the Returning Officer. He is a Sub-Divisional Magistrate and disinterested. He has no notice (sic) (motive?) to make any false statement. In the absence of a correct electoral roll number, it is not possible for the returning officer to readily locate in the electoral roll the candidate's name. When the electoral roll number is missing or wrong, it will entail laborious search to find out the eligibility from the list of voters and in this case there were about 50 thousand entries. Thus in law the Returning Officer is not expected, in the absence of electoral roll number, to search the electoral rolls to check up the identity or eligibility of the candidate. The Returning Officer was fully justified in confining the scrutiny to the particulars in the nomination papers, when nothing else was brought to his notice. The positive evidence of the Returning Officer is consistent with the orders Ext. PW-1/6 and Ext. PW-1/7 and goes to establish that neither Shri Devinder Kumar was present nor any one represented that he was a voter at Serial No. 1021 page 416-C of' East Delhi Parliamentary Constituency. Apart from it there is a pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that he does not know voter number in constituency No. 33, but it is at the address given in the nomination papers. The petitioner improves upon this statement and says that Shri Devinder Kumar showed the voter's list printed in Hindi of the area Nand Nagri where the name of Shri Devinder Kumar was entered as a voter. The evidence of the petitioner and his election agent is partisan and has to be assessed with great caution. Interest or partisanship is a strong element that weans one away unconsciously from the truth. The testimony of the petitioner and his election agent is not convincing and is discarded for these reasons. Shri Hari Om Kapur does not support at all the petitioner in his version as the witness admits that he is not aware as to which Serial number of the voter was given by Shri Devinder Kumar in his nomination papers. He states that Shri Devinder Kumar told the Returning Officer that he could verify the voter's number from the records available with him. Beyond that Shri Hari Om Kapur is not willing to support the petitioner's case. The Returning Officer could not locate the voter number from the records available with him when the electoral rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the petitioner says that Nand Nagri was not Included in the constituency No. 33, on the basis of list Ext. PW-8/1 which was given to him by the Returning Officer, and the petitioner canvassed an that basis and fought the elections. The entire evidence of the petitioner does not destroy the presumption In favor of the official acts. His evidence cannot persuade any reasonable mind to hold that the Returning Officer clearly made a false statement in this Court when he stated that Shri Devinder Kumar was not present at all On 19th May 1977. The cumulative effect of all the above factors leads me in ascertaining the truth and I hold that Sh. Devinder Kumar was not present at the time of scrutiny and it was later on discovered by the Petitioner that the name of Shri Devinder Kumar was given in the voter's list of constituency No. 33 in the area of Nand Nagri at house No. C-3/543 Nand Nagri thus giving a ground to the petitioner to base, his election petition on the improper rejection of the nomination papers. 17. The arguments of the counsel for the parties also proceed in the extreme. Mr. R. P. Bansal submits that the object of information as to the electoral roll numbers of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the scrutiny, and a nomination paper should not be rejected for any error in these matters, if the identity and the eligibility of the subscribers are not in doubt and nobody has been misled about the same. Reliance is also placed on Om Prabha Jain v. Gian Chand 22 Elr 242: (A Division Bench of Punjab High Court) where it was contended that the nomination paper ought to have been rejected on the ground that the nomination paper did not contain her electoral roll number and there was thus failure to comply with the provisions of the Act. This contention was repelled in that case. Reliance is also placed on Dahu Sao v. Ranglal Chaudhary , MANU/BH/0129/1960MANU/BH/0129/1960 : AIR1960Pat371 and on appeal Rangi Lal Chaudhary v. Dahu Sahu , [1962]2SCR402 where it was held that the defect in filing the nomination form would not be of a substantial character, if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been filled in that respect. The counsel argues there could be no doubt about the identity of Shri Devinder Kumar on a comparison of the address given in the nomination papers and the Serial No. 1021, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects in the Prescribed form giving the electoral roll number of the candidate which includes the name of the constituency, the Serial number of the part and the Serial number of the entry in that part. The candidate's name cannot be located in the roll unless these particulars are furnished. Under S. 35, the Returning Officer shall cause to be affixed a notice of the nomination containing description similar to those contained in the nomination paper, both of the candidate and of the proposer. Under R. 7 of the Conduct of Election Rules, 1961 the notice of nomination under S. 35 shall be in such one of the forms 3-A to 3-C as may be appropriate. Each of these forms require the tabulation of the electoral roll number of the candidate as well as of the proposer under separate columns. Mr. Bansal is not right in his submission that it is to be in Form 4 which does not require the particulars of electoral roll number. Form 4 is for the preparation of list of validly nominated candidates after the decision of scrutiny and is to be affixed under S. 36(8) as per R. 8. The list of nominated candidates prepared under Para 11 of Chap. Ii of the Hand Book for Returning Officers is only f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of scrutiny. For these reasons the completion of the nomination form in the prescribed form giving the name of the constituency the Serial number of the part and the Serial number of the entry in that part is not any empty formality. The object of the details to be mentioned in the nomination papers is to ensure the identity and eligibility of the candidate. Inaccuracies, discrepancies and irregularities in the nature of those specified in proviso to sub-me (4) of S. 33 do not matter, for they do not mislead. But if in the nomination papers and consequently 'in the notice under S. 35 of the Act, the electoral roll number of Shri Devinder Kumar is given as entered at Serial No. 956 in Part 329 of the Electoral Roll for Chandni Chowk Parliamentary constituency, and not the one in which he is an elector, then it is obvious that the other candidates are misled and are not in a position to raise all possible objections before the scrutiny starts. 20. Godha Ram's case (supra) relied upon by the petitioner had arisen out of elections to the Panchayat Samiti. There the voter number of the proposer was given as 28 (6), whereas it should have been 26 (3) according to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm to the Hindi printed form in the Rules framed under the Act and the candidate filled in the name of the constituency in the blank space in the heading, but it was quite clear that the nomination was for the Dhanbad Constituency. The nomination paper clearly showed the constituency from which the nomination was being made though there was some defect in filling up the form. Even then the Supreme Court observed that generally speaking if the nomination does not disclose at all the name of the constituency for which the nomination has been made, the defect would be of a substantial character for there would be no way of knowing the constituency for which a candidate is being nominated. 22. It may be conceded to the petitioner that the provisions relating to filling up of nomination papers are not absolute and need not, Therefore, be fulfilled exactly. Proviso to sub-section (4) of S. 33 is a pointer in that direction. The filling up of the particulars of the electoral roll number could, Therefore, be complied with substantially. The criterion of substantial compliance is for the establishment of the eligibility and identity. In this case the nomination papers contained the elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect is of a substantial character. The fact that the nomination was rejected on some other ground is of no consequence. If in truth there existed a defect of a substantial character in the matter of compliance of Act, the nomination paper be rejected, and if it was so rejected, rejection would be proper whatever may have been the reason given by the Returning Officer. (See Ranjit Singh v. Pritam singh Air 1966 Sc 1926. 24. To sum up I hold that Shri Devinder Kumar did not produce either a copy of the electoral roll of that constituency particulars of which are given in the nomination papers, Exts. PW-1/4 and PW-1/5, or a relevant part thereof, or a certified copy of the relevant entries of such roll either along with the nomination papers or produced the same before the Returning Officer at the time of scrutiny. There is thus non-compliance of the provisions of S. 33(5) of the Act and the nomination papers were rightly rejected by the Returning Officer by virtue of the powers conferred under S. 36(2)(b) of the Act. The rejection of the nomination papers cannot be held as improper. I further hold that Shri Devinder Kumar was not present at the time of scrutiny before, the Return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order correct and up to-date. In exercise of the powers conferred by S. 11 of the Delimitation Act, 1972 the Election Commission made the corrections in the said order in Table B Metropolitan Council Constituencies. Correction made against 33-Rohtas Nagar in the description of the extent of the constituency was to the effect that after the words and figures Charge No. V the words and Mandoli village were inserted. Accordingly, the word 'Mandoli' was deleted against 34-Ghonda in the description of the extent of constituency. 26. In exercise of the powers conferred by S. 5 of the Delhi Municipal Corporation Act, 1957, as amended by the Delhi Municipal Corporation (Amendment) Act, 1974 read with the Government of India, Ministry of Home Affairs notification No. 3/6/66 Delhi dated the 20th April, 1967 and in super session of all previous orders on the subject, the Lt. Governor, Delhi made the Delhi Municipal Corporation (Delimitation of Wards) Order, 1975. The notification dated Feb. 23, 1975 was published in the Delhi Gazette Extraordinary, copy Ext. RW-5/1. The wards into which Delhi was divided for purposes of election of Councillors to the Municipal Corporation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the division of each State into territorial constituencies. Under the proviso it is not necessary for the Commission to readjust the total number of seats in the Metropolitan Council of Delhi. The delimitation of the constituencies is provided for in S. 9 of the said Act. Under sub-section (2) of S. 9, the Delimitation Commission has to publish its proposals for the delimitation of the constituencies to consider all objections and suggestions and thereafter its duty is by one or more orders to determine the delimitation of constituencies. Publication is to be given to the orders of the Delimitation Commission under S. 10(1) of the said Act. The legal effect of the order is given in sub-section (2) of S. 10 of the Act. Under sub-section (2) upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any Court. Section 11 of the said Act empowers the Election Commission, inter alia, to correct any error in any of the orders of Delimitation Commission under S. 9 arising therein from an inadvertent slip or omission. It further empowers the Election Com, mission where the boundaries or name of any district or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection can only be set aside and declared void on the grounds which have been mentioned in. S. 100 of the Act and not on any ground outside it. Issue No. 3 is thus held in favor of the respondent. 30. The case on facts as set up in the election petition is that 22 polling stations of Nand Nagri and Mandoli having more than 19,000 votes have been illegally included in Constituency No. 33 after the delimitation of the constituencies was carried out and completed on 28th of April, 1975 as contained in Delimitation Order No. 40. Oral evidence has been led by the petitioner in his own statement that he started his canvassing on the basis of the list of 71 polling stations of constituency No. 33 given to him by the Returning Officer and that list is Ext. PW-8/1; that he continued his canvassing on the basis of the list Ext. PW-8/1 during the elections; and that in this list of polling stations the locality of Nand Nagri and Mandoli are not included. In the examination in-chief itself the petitioner admits that the colony of Nand Nagri was established in the end of the year 1976; that Nand Nagri was established in the village Mandoli; that Nand Nagri colony is with in boundaries of vil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses in the examination-in-chief itself that a final list of polling stations was supplied to him on June 3, 1977 along with a forwarding letter. The forwarding letter is Ext. PW-8/2 and the list of polling stations is Ext. PW-8/2-A. List Ext. PW-8/2-A is the same as Ext. PW-1/9 but does not carry the corrections In ink. Polling stations 77 and 78 of village Mandoli and polling stations Nos. 79 to 98 of Nand Nagri are contained in the list Ext. PW-9/2-A. The forwarding letter dated May 30, 1977, Ext. PW-8/2, gives the subject as General Elections to Metropolitan Council of Delhi-1977 publication of list of polling stations in final , and In the body of the letter it is stated that this list is sent in pursuance of the Provisions of S. 25 of the Act by Shri Ashok Kumar, Returning Officer for constituency No. 33 providing for the said constituency with the Previous approval of Election Commission of India, the polling stations specified in the appended list in respect of the polling area of group of voters as noted against each. The handbook for the Returning Officers which was relied upon by the counsel for the petitioner for another purpose in Chap. 1, Group B provide for the publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 33 Metropolitan Constituency provided for the said constituency with the previous approval of Election Commission of India the polling stations specified in the list appended to the Order dated May 30, 1977. The order dated May 30, 1977 is Ext. PW-8/2. The list of polling stations is Ext. PW-8/2-A. Para 14 of Chapter I of the Hand Book of Returning Officers provide that the District Election Officer/Returning Officer can correct printing and clerical mistakes, if any, after such publication. The Chief Election Officer by his letter dated June 5, 1977 issued a corrigendum to the list of polling stations for election to the Metropolitan Council of Delhi, inter alia, deleting from 33 Rohtas Nagar polling station No. 15. The corrigendum notification is Ext. R-1. According to Mr. Bansal by making amendments in the polling stations after the dead line of the date of inviting the nomination papers as provided in sub-section (3) of S. 23 of the Representation of the People Act, 1950 has the effect of deletion in the electoral roll of constituency No. 33. Reference was invited to Ss. 13-D or 23 of the Representation of the People Act, 1950. This argument is attractive but cannot stand scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .W. 2 says that the colonies known as Durga Puri, Jyoti Nagar, Jyoti Colony and Jagjiwan Nagar are on the north of boundary of Metropolitan Constituency No. 33 near about Loni Road. P.W. 3 also states that Jyoti Nagar and Jagjiwan Nagar are on the north of the Nala. P.W 7 also states that the colonies known as Jagjivan Nagar, Nathu Colony. Durga Puri, Jyoti Nagar and Jyoti Colony are situated on the northern side of the Nala and this Nala is indicated at point A to B in the plan Ext. Pw 1/8. Thus I have no hesitation in holding that the area of Jagjivan Nagar, Gali Nos. 1 to 9 was not forming part of constituency No. 33. No person who is not for the time being entered in the electoral roll of any constituency, is entitled to vote in that constituency. The electoral rolls Exts. PW-1/1 to PW-1/3 of Constituency No. 33 produced by P.W. 1 do not include the voter's numbers mentioned above of Jagjivan Nagar, Gali Nos. 1 to 9. Voters of Jagjivan Nagar, Gali Nos. 1 to 9 were assigned to polling station No. 15 and were wrongly included in 33 Rohtas Nagar in the list of polling stations notified on May 30, 1977. By issue of the corrigendum notification dated 5th June 1977, that clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of S. 62 of the Act have no right to vote in that constituency. In Ext. PW-1/2, Serial Nos. 359 to 735 (total votes 377) are printed in the list of constituency No. 33, but they have been deleted in the list itself. It is clear that, there was error in printing the voters Serial Nos. 359 to 735 of Jyoti Nagar Colony in the list of constituency No. 33 and deletion must have been made before the lists were supplied to the petitioner or issued. These Serial numbers of voters have not been assigned to any of the polling stations of constituency No. 33. Polling Station No. 26 mentioned in Ext. PW-8/2-A (or Ex PW-1/9) does not include in it the Serial numbers of voters from 359 to 735. They were, however, included in the tentative list Ext. PW8-/1 in polling station No. 24 but that tentative list is not final. The final list is Ext. PW-8/2-A. Thus I hold factually the voters of polling station No. 15, Jagjivan Nagar, Gali No. 1 to 9, voters Nos. 347/485-970, 971-1604 (A), 347/2306-2471-A as well as voters No. 359 to 735 of Jyoti Colony earlier included in polling station No. 24 (later on renumbered as 26) were not electors of constituency No. 33 and had no right to vote is constit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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