Rangilal Choudhury vs Dahu Sao and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 20 of 1961

Decision Date: 26 April 1961

Coram: K.N. Wanchoo, P.B. Gajendragadkar, K.C. Das Gupta

The matter titled Rangilal Choudhury versus Dahu Sao and Others was decided on 26 April 1961 by the Supreme Court of India. The judgment was recorded by Justice K N Wanchoo, who also authored the opinion, and the bench was composed of Justices K N Wanchoo, P B Gajendragadkar, K C Das Gupta, T L Venkatarama and K C Das Aiyyara. The petitioner was Rangilal Choudhury and the respondents were Dahu Sao together with other parties. The case appeared in the 1962 volume of the All India Reporter at page 1248 and also in the Supreme Court Reporter, second series, page 401. It was subsequently cited in later decisions cited as RF 1972 SC 580 (17) and F 1973 SC 276 (5). The dispute concerned a question under Section 33, sub‑section 4 of the Representation of the People Act, 1951 (No LXIII of 1951), relating to a defect in a nomination paper that might constitute a substantial irregularity.

The headnote summarised the factual background, stating that the appellant had been elected as a member of the Bihar Legislative Assembly in a bye‑election for the Dhanbad constituency, while the respondent’s nomination paper had been rejected because the proposer wrote “Bihar” before the words “assembly constituency” instead of writing “Dhanbad”. The error originated from a mistake in the Hindi printed form of the nomination paper, which did not exactly follow the prescribed format. The respondent challenged the rejection through an election petition; the Election Tribunal held that the rejection was proper, but the Patna High Court reversed that finding and declared the rejection improper. On special leave, the Supreme Court examined whether the mistake in the printed form and the inclusion of the word “Bihar” rather than “Dhanbad” amounted to a substantial defect under the statutory provision. The Court concluded that, given the printed form’s mistake and the clear heading indicating the name of the constituency, the error was not of the substantial character envisaged by Section 33. The Court further held that the failure to correctly fill columns 2 and 5 did not constitute a substantial defect because the Returning Officer faced no difficulty in verifying that both the proposer and the candidate were registered voters. The decision relied upon the precedent set in Karnail Singh v. Election Tribunal, Hissay, reported in the 1954 volume of the Eastern Law Reporter at page 189.

The procedural history noted that the case was a civil appeal numbered 20 of 1961, filed under civil appellate jurisdiction. It arose from an appeal by special leave from the Patna High Court’s judgment and order dated 25 March 1960 in Election Appeal No. 4 of 1959. Counsel for the appellant included N C Chatterjee, D P Singh, M K Ramamurthy, R K Garg and S C Agarwal, while the respondent’s counsel was D Goburdhan. The judgment was delivered on 26 April 1961. The Court began the opinion by stating that the present proceeding was an appeal by special leave concerning an election matter and that the brief facts necessary for the present purposes are as follows.

In this matter a bye‑election was conducted on 21 and 22 December 1958 to fill a vacancy in the Bihar Legislative Assembly representing the Dhanbad constituency. The law required that nomination papers for this election be submitted on or before 8 November 1958. A considerable number of individuals submitted their nominations by that deadline, among whom were the appellant, Rangilal Choudhury, and the respondent, Dahu Sao. The appeal concerns only these two candidates. The returning officer examined the respondent’s nomination paper and, on 11 November 1958, rejected it after scrutiny. The election proceeded and the appellant was declared elected by a majority of votes. Subsequently the respondent filed an election petition challenging the appellant’s election on numerous grounds, but the present appeal is limited to the single ground that the respondent’s nomination paper had been improperly rejected. The appellant argued that the rejection of the nomination paper was justified, while the election tribunal concurred and dismissed the petition on that basis. The respondent appealed this decision to the High Court, contending that the election tribunal had erred in finding the rejection proper. The High Court accepted the respondent’s position, held that the nomination paper had indeed been wrongly rejected, set aside the appellant’s election and directed a new result. The appellant’s request for leave to appeal to this Court was denied by the High Court, prompting the appellant to obtain special leave from this Court, thereby bringing the dispute before the present bench. The sole reason the returning officer gave for rejecting the respondent’s nomination was that the proposer had purportedly nominated the candidate for the state of Bihar rather than for the Dhanbad Assembly constituency. The nomination was made on a Hindi form printed by the Government for this purpose. Unfortunately, the printed form did not exactly follow the specimen form prescribed in the Rules framed under the Representation of the People Act, No. LXIII of 1951. The specimen required the name of the State in which the election was held to be entered in a blank space in the heading; however, the supplied form already displayed the State name in the heading, leaving the blank space to be filled with the name of the constituency. Consequently, the candidate entered “Dhanbad” in that blank space. The proposer then completed the subsequent part of the form, which contains five columns following the main section that states the proposer nominates a person for a particular constituency. In this main section the name of the candidate and the name of the constituency must be entered. The candidate’s name was correctly entered, but the proposer, instead of writing “Dhanbad,” wrote “Bihar” in the constituency field, making the proposal appear as if the candidate were being nominated for a Bihar Assembly constituency.

In the nomination form that is before the Court, the name of the candidate was entered correctly, but the proposer mistakenly entered “Bihar” in the space where the name of the constituency should have been placed, instead of writing the correct constituency name, Dhanbad. Consequently, the proposal appeared to nominate the candidate for a Bihar Assembly constituency. The sole objection raised before the returning officer was that the proposer had failed to specify the constituency for which the candidate was being put forward, and therefore the nomination form was defective and should be rejected. The returning officer accepted this objection and rejected the nomination on the ground that the proposer had nominated the candidate for a Bihar assembly constituency rather than for the Dhanbad assembly constituency. It is relevant to note that no such constituency as a Bihar Assembly constituency exists, and the election in question was a by‑election, not a general election; these facts must be kept in mind when determining whether the rejection was proper. Section 33(1) of the Representation of the People Act requires that a nomination paper be completed in the prescribed form and signed by both the candidate and an elector of the constituency who acts as proposer, and that it be filed on or before the nominated date. Section 33(4) provides that, upon presentation of a nomination paper, the returning officer must verify that the names and electoral‑roll numbers of the candidate and the proposer, as entered in the paper, match those recorded in the electoral rolls. The officer is empowered to permit correction of any clerical or technical error concerning those names or numbers so that they conform with the roll entries, and, where necessary, to overlook any clerical or printing mistake. Section 36 governs the scrutiny of nomination papers; sub‑section (2)(b) states that a nomination paper shall be rejected if it fails to comply with any provision of section 33. However, sub‑section (4) adds that the returning officer shall not reject a nomination paper on the basis of any defect that is not of a substantial character. These provisions collectively impose on the proposer and the candidate a duty to submit nomination papers that are complete in all respects according to the prescribed form, yet they also require the returning officer, at the time of presentation, to ascertain the correctness of the names and roll numbers and, if necessary, to allow corrections so that the entries conform with the electoral roll.

After the nominations were presented, the returning officer possessed authority to reject a nomination paper if it failed to comply with any provision of section thirty‑three, but this authority was limited by the requirement that a nomination paper could not be rejected on the ground of any defect that was not of a substantial character. The principal issue before the High Court was whether the defect that led the returning officer to reject the nomination paper in the present case was of a substantial character. In general, when a nomination paper does not at all disclose the name of the constituency for which the nomination is made, the defect is regarded as substantial because, without that information, it is impossible to determine the constituency for which the candidate is standing. However, there are circumstances in which the nomination form does indicate the constituency, even though some part of the form may be incorrectly filled. In such situations, the Court considered that if the form nevertheless makes clear the constituency for which the nomination is intended, the defect in the way the form was filled would not be regarded as substantial. In the case at bar, the proposer had written the word “Bihar” before the words “assembly constituency” instead of writing the correct constituency name “Dhanbad”. If the form had contained no other indication of the constituency, this mistake would have constituted a substantial defect justifying the returning officer’s rejection of the nomination. Nevertheless, the facts of this case were unusual. The Hindi nomination form used in this election printed the heading incorrectly; the heading did not conform to the format prescribed by the Rules. Under the specimen form, the blank space is intended to contain the name of the State in which the election is held, but because of the mis‑printed heading, the blank could be filled only with the name of the constituency, and the candidate himself entered that name. When the proposer later filled the portion of the form allotted to him, the constituency name was already visible in the heading. Consequently, the proposer was misled by the existing heading and entered the word “Bihar” in the second blank space where he should have written “Dhanbad” to indicate the constituency. This mistake by the proposer was undeniably a defect in the form as filled by him. The Court therefore examined whether, given these circumstances, the defect could be characterised as one of substantial character that would warrant the rejection of the nomination paper.

The matter that required determination was whether, given the circumstances described, the irregularity could be characterised as a defect of a substantial character that would warrant the rejection of the nomination paper. It appeared to the Court that the irregularity arose in part because of a mistake in the printing of the Hindi nomination form that had been supplied to candidates for the purpose of filing nominations in this bye‑election. Nevertheless, the printed form, as it stood, displayed in its heading the name of the specific assembly constituency for which the election was being held. After the heading, the section of the form that was to be completed by the proposer followed, and in that section the proposer entered the word “Bihar” in the blank space that was intended to indicate the constituency, whereas the correct entry should have been “Dhanbad”. In view of the fact that the heading already contained the correct name of the constituency, the Court considered that it would not be improper, under the facts of this case, to conclude that the proposer was nevertheless nominating the candidate for the constituency identified in the heading. Accordingly, the Court held that, taking into account both the printing error and the presence of the constituency name in the heading, the proposer’s mistake of writing “Bihar” instead of “Dhanbad” created a defect in the completion of the form but that defect was not of a substantial character. The form clearly showed that the nomination concerned the Dhanbad assembly constituency. The returning officer, however, did not appear to give any significance to the name of the constituency that was printed in the heading, and also seemed to overlook the fact that the election in question was a bye‑election for a single constituency, when assessing the defect that undeniably existed in the nomination paper. Consequently, the Court agreed with the High Court that, because of the peculiar circumstances arising from the Government’s mistake in printing the Hindi nomination form, the defect that occurred was not substantial, and it was evident that the nomination paper pertained to the Dhanbad assembly constituency. The rejection of the nomination paper by the returning officer was therefore deemed improper. The Court noted that this was the sole ground on which the nomination paper had been challenged as defective before the returning officer. Nevertheless, before the election tribunal, the appellant also argued that the nomination paper was defective because columns 2 and 5 of the section to be filled in by the proposer had not been properly completed and were therefore defective. It was submitted that the defects in those columns were substantial and that, even if the reason given by the returning officer for rejecting the nomination paper was not substantial, the defects in columns 2 and 5 were substantial enough to justify upholding the rejection. Column 2

In that case the form required the proposer’s electoral‑roll number to be entered in column 2 and the candidate’s electoral‑roll number to be entered in column 5. The directions governing the form further mandated that columns 2 and 5 should contain, in addition to the numbers, the name of the constituency, the part of the electoral roll and the serial number within that part, so that the returning officer could readily verify that both proposer and candidate were listed on the electoral roll. In the present nomination only the serial number and the house number were filled in columns 2 and 5; the name of the constituency and the part number were omitted. Accordingly, a defect existed in those two columns. The address shown in column 4 indicated that the constituency was Dhanbad, and no part number could be supplied because the electoral roll applicable to this case was not divided into parts. The issue therefore was whether, under these circumstances, the defect was of a substantial character. Section 33(4) of the Act imposed upon the returning officer a duty to ensure that the names and electoral‑roll numbers of the candidate and his proposer as entered in the nomination paper matched those appearing in the electoral roll, and it empowered him to permit the removal of any defect in this regard. The returning officer apparently failed to notice the omission in the form, because he did not give the proposer an opportunity to correct it. While the failure to afford a chance for correction did not itself render the defect immaterial if it were substantial, the purpose of requiring the electoral‑roll numbers was to enable the officer to confirm that the proposer and the candidate were voters. The High Court indicated that the respondent testified that, when his nomination was examined, the returning officer compared the names on the nomination paper with the names on the electoral roll. This suggested that the officer experienced no difficulty in locating the proposer and candidate in the rolls, and consequently he raised no objection to the missing information in columns 2 and 5. Given that the officer could readily identify both persons, the defect was held to be unsubstantial and could not justify rejection of the nomination paper. The Court referred to the decision in Karnail Singh v. Election Tribunal, Hissar and Other 8 (1), where it was observed that the evidence showed no difficulty in identifying the candidate and the candidate himself pointed out his entry in the electoral roll. On that basis, the defect in columns 2 and 5 was characterized as a technical flaw rather than a substantial one. Consequently, the Court agreed with the High Court that the defects were unsubstantial and that the nomination could not be rejected on that ground, a ground that had not even been raised before the returning officer.

The Court observed that the candidate personally indicated to the returning officer the exact place where his own name appeared in the electoral rolls. Consequently, the Court held that the defect noted in columns two and five of the nomination paper was merely a technical irregularity and did not amount to a substantial defect. The Court further stated that the principle articulated in the earlier decision applied equally to the present matter, because there was no doubt that the returning officer had experienced no difficulty in identifying either the proposer or the candidate. Indeed, the evidence clearly showed that the candidate himself pointed out the entry in the electoral rolls bearing his name. Accordingly, the Court agreed with the decision of the High Court that, given the circumstances, the defects in columns two and five were unsubstantial and that the nomination paper could not be rejected on this additional ground, especially since this ground had never been raised before the returning officer. As a result, the Court dismissed the appeal. In view of these findings, the Court made no order regarding costs. The appeal was consequently dismissed. (1) [1951] 10 E.L.R. 189.