The Judgment of the Court was delivered by
B.S Chauhan, J.:— The instant writ petitions have been filed by the petitioner challenging the impugned judgment and order dated 14.7.98 passed by the Election Tribunal (District Judge), Bikaner, by which the election of the petitioner as Sarpanch has been set-aside on the ground that the Returning Officer had committed an error in rejecting the nomination-forms filed by the contesting respondents herein.
2. The facts and circumstances giving rise to these cases are that election for the post of Sarpanch reserved for woman (General Seat) of Gram Panchayat, Surpura tehsil Nokha district Bikaner, was held in January, 1995. The contesting respondents in both these petitions, viz. Smt. Bughi Devi and Smt. Dali Devi submitted their nomination forms for the said office, however, on the date of scrutiny, nomination forms of the said respondents were rejected and as there was no other candidate, petitioner was declared elected Sarpanch un-opposed.
3. The contesting respondents filed separate election petitions before the Election Tribunal-respondent No. 1 on the ground that their nomination forms had wrongly been rejected. Both the petitions were consolidated and heard together. In the said petitions, petitioner filed reply and took additional pleas that their nomination forms were also liable to be rejected on the grounds other than those, on which the same had been rejected by the Returning Officer. Nomination Form of Smt. Bughi Devi had been rejected for not submitting the certificate of belonging to Scheduled Caste. In reply to the Election Petition, petitioner took additional plea that her nomination form was also liable to be rejected for not filling-up the name of the constituency and, also, for not filling-up the Declaration contained in column 5 of Form IV (under Rule 25(1) of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred as “the Rules, 1994”). Nomination of Smt. Dali Devi was rejected on the ground that she had not filled-up the name of the constituency and also did not submit the certificate belonging to Scheduled Caste. She had also not made the declaration as required under Column 5 of the form but this point was not taken by the petitioner as an additional ground in her reply to the election petition.
4. The Election Tribunal held that there was no requirement of filing the certificate of caste, as it was not required under the statutory rules and Smt. Bughi Devi had filled-up her caste as Meghwal and, thus, disclosed that she belonged to Scheduled Caste. In the case of Smt. Dali Devi, the Tribunal held that as the Returning Officer himself had mentioned, in the lower part of the nomination form that she was contesting the election from Constituency No. 39 (Surpura) and was satisfied and was having the knowledge that she was contesting the election from Constituency No. 39 (Surpura), what was the occasion for the Returning Officer to reject her nomination form on the said count. Moreover, she had mentioned the name of the constituency in circle in Column 4 which furnished the details of the voters-list in which her name appeared. Thus, it was a substantial compliance of law and as such her nomination form had wrongly been rejected. The Tribunal, by the common impugned judgment and order, set-aside the election of the petitioner holding that the nomination forms of the contesting respondents had wrongly been rejected by the Returning Officer. Hence these petitions.
5. Heard Mr. M.S Singhvi, learned counsel for the petitioner and Mr. P.P Choudhary, learned counsel for the contesting respondents.
6. Rule 25 of the Rules, 1994 reads as under:—
“25. Presentation of nomination papers:— (1) On the day appointed under Sub-clause (b) of Clause (ii) of sub-rule (1) of Rule 23 for the presentation of nomination papers any person qualified under Section 19 for election as a Panch and desiring to seek such election, hereafter in this chapter referred to as a candidate, shall deliver in person to the Returning Officer his nomination paper in Form IV duly filled in and signed by him or bearing his thumb impression.
Provided that if a candidate belonging to SC, ST or Other Backward Class submits his nomination paper for a reserved ward, he shall attach a certificate to that effect issued by the Collector or any officer authorised by the State Government:
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(2) Any nomination paper not delivered as provided in Sub-rule (1) shall be rejected.”.
7. Rule 27(3) provides that the Returning Officer shall decide all objections and may either on the basis of such objections or on his own motion, reject a nomination paper on the ground, inter alia other grounds, namely that there has been a failure in complying with the provisions of Rule 25. Rule 56(3) reads as under:
“56(3)-The provisions of Rules 23 to 54 shall, so far as may be, apply mutatis mutandis to such election, except that the nomination paper of Sarpanch will not be valid unless accompanied with a security deposit of Rs. 100/- in the case of general candidates and Rs. 50/- in the case of candidates belonging to SC/ST/OBC. The security shall be refundable except that it shall stand forfeited in the case of such candidates who fail to secure atleast one sixth of the total votes polled in the Panchayat.”
8. It has been submitted by Mr. Singhvi that as Rule 56(3) provides for the application of rule 25 mutatis mutandis and Rule 25 provides for a mode only for the election of a Panch and not of a Sarpanch, the term mutatis mutandis would impliedly require the submission of the certificate from the Competent Authority, of belonging to Scheduled Caste/Scheduled Tribe even for the purpose of security. It has further been submitted that as the rule requires filing of the certificate, its photo-copy, certified copy or attested copy cannot be substitute for the certificate. Thus, both the contesting respondents were under an obligation to file the certificates of caste in original. If the provisions of Rule 25 and 56(3) of the Rules, 1994 are read with Form IV, it make abundantly clear that if the respondents wanted to make themselves identified with a particular caste, i.e, Scheduled Caste, it was mandatory for them to submit the original certificates of caste, as the legislature has provided for such a safe-guard in the election matter, the Tribunal has wrongly interpreted the said provisions and held that it was applicable only in the case of the candidates contesting from the constituency reserved for SC/ST. The Book-let issued by the Election Commission provided for submission of such certificate even for the purpose of depositing the security amount.
9. Mr. Singhvi has further urged that a candidate must submit a duly filled-up nomination form as required under Sub-rule (1) of rule 25 and unless the nomination form is complete in all respects, it is liable to be rejected. Section 33(4) of the Representation of Peoples Act, 1951 (hereinafter called “the Act, 1951”) provides that the nomination form should be duly filled-up; however, in case the error is of substantial nature, the form is liable to be rejected.
10. In Narpat Karan v. the District Judge, Balotra (1) this Count has held that not putting a provision of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, or Rules corresponding to Section 33(4) of the Act, 1951 would mean that under such rules a nomination form, which is not duly filled-up and even if the error in filling-up the form may not be of substantial nature, the form is liable to be rejected for the reason that the legislature was presumed to know the provisions of the Act, 1951 and not inserting the corresponding provision in the Rules makes the intention of the legislature clear that a more stringent requirement has been desired by the statute.
11. In Dharam Singh Rathi v. Hari Singh, M.L.A (2) the Apex Court has held that if the postal address or name of the constituency has not been filled-up in the nomination form, the error was of the substantial nature and form was liable to be rejected. The defect was not of such a nature which may fall within the ambit of Sub-section (4) of Section 33. Moreover, Section 36(4) of the Act, 1951 enjoined the Returning Officer not to reject any nomination paper on the ground of any defect which was not of a substantial character but in case the defect was of a substantial character, the Returning Officer was bound to reject it and reading the provisions of Sections 33 and 34 of the Act with rule 4 of the Rules as well as Form XXVIII, the Court came to the conclusion that non-supply of the postal address of the candidate or supplying such creptic address which virtually amounted to non-supply of address, was failure to comply with the provisions of Section 33(1) and hence the nomination form was liable to be rejected. Same view has been taken in Prahladdas Khandelwal v. Narendra Kumar Salve (3), wherein, after considering the entire legal provisions, the Hon'ble Supreme Court came to the conclusion that there was a failure on the part of the candidate to comply with the provisions of Section 33 “inasmuch as the name of the constituency was not stated in the nomination paper, which, therefore, could not be treated as having been completed in the prescribed form as required by Section 33(1) of the Act, 1951. The defect was essentially of a substantial character and did not fall within those provisions where the Returning Officer was enjoined either to get the defect rectified or ignore it.
12. In Ram Dayal v. Brijraj Singh (4), not putting the thumb impression by the Proposer was found to be an error of substantial character and it was held that “under the provisions of Section 33(1) of the Act, putting of the signatures was mandatorily required. “Signing”, whenever signature is necessary, must be in strict accordance with the requirement of the Act…………Attestation is not a mere technical or un-substantial requirement within the meaning of Section 36(4) of the Act and cannot be dispensed with. The attestation and satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny, any more than the omission of the candidate to sigh that all could have been. In Rattan Anmol Singh v. Ch. Atma Ram (5), it was held that for want of supplying the sample of signatures the nomination form was liable to be rejected under the provisions of Section 36(2)(b) of the Act, 1951 as the form was not filled-up in consonance with the provisions of Section 33 and, thus, could not have been saved by the provisions of Section 36(4) of the Act. In Ranjit Singh v. Pritam Singh (6), the Constitution Bench of the Apex Court held that submitting an incomplete voters-list, which was required to be filled-up by a candidate who was not a voter in the same constituency, would make the nomination form liable to be rejected. The Court observed as under:—
“The fact that the Returning Officer rejected the nomination paper on some other ground is of no consequence. If there was any truth, a defect of a substantial character in the matter of compliance with Section 33 of the Act, the nomination paper was liable to be rejected and if it was so rejected, the rejection would be proper whatever may have been the reason given by the Returning Officer.”
13. Thus, in view of the above, Mr. Singhvi has submitted that as the nomination forms of the contesting respondents had not been duly filled-up, their nomination forms were liable to be rejected. It is further urged that the proceedings before the Election Tribunal were original proceedings in nature as the Tribunal was not sitting in appeal against the order of rejection by the Returning Officer and if the duly returned candidate raised the objection that their forms were also liable to be rejected on the grounds other than those on which it had been rejected, those grounds have to be considered by the Tribunal. In N.T Veluswami Thever v. Raja Nainar (7), the Court observed as under:—
“It is a sound rule of construction that procedural enactment should be construed liberally and in such manner as to render the enforcement of the substantive right effective. Reading Section 100(1)(c) in the context of the whole enactment, we think that an enquiry before the Tribunal must embrace all the matters as to qualification and disqualification mentioned in Section 36(2) and that it cannot be limited to the particular ground of disqualification which was taken before the Returning Officer…… The enquiry which a Returning Officer has to make under Section 36 is summary in character….Such being the nature of the enquiry, the right which is given to an authority under Section 100(1)(c) and Section 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper, would become illusory if the Tribunal is to base its decision only on the material placed before the Returning Officer.”
14. Similarly, in J.H Patel v. Subhan Khan. (8), the Court observed that election petition, being original proceedings and not appellate proceeding, the High Court's jurisdiction cannot be confined to the grounds on which the Returning Officer rejected the nomination.
15. Thus, Mr. Singhvi has submitted that the Tribunal has erred in holding that it could not examine the grounds other than those on which the Returning Officer had rejected the nomination forms.
16. Mr. P.P Choudhary, learned counsel appearing for the contesting respondents, on the other hand, has submitted that rule 56(3) deals with the election of Sarpanch while rule 25 deals with the election of a Panch and as it provided for the application of rule 25 mutatis mutandis and the requirement of depositing the amount of security is an additional item as it is not provided for in rule 25. Therefore, even by necessary implication, it cannot be said that filing of certificate of caste was mandatory. It is, however, mandatory in case of election from the reserved constituency. Therefore, certificate is not required for the purpose of depositing lesser amount of security and, thus, the Election Tribunal has rightly held that it could not examine the case of rejection of the nomination forms of the contesting respondents on the grounds other than those on which the same had been rejected for the reason that petitioner could not seek any relief in election petitions filed by the contesting respondents nor he could ask to adjudicate upon the issues which were not involved in passing the order of rejection of the nomination forms and in absence of the rule providing for cross-objections etc., such a plea could not have been taken or raised by he petitioner.
17. I have considered the rival submissions and examined the cases in the background of the aforesaid submissions.
18. The Election Tribunal has emphasised on the need for encouraging the participation of the poor, Dalits, down-troden and women in the administration and decision-making and policymaking institutions and observed that unless the said classes are given proper representation in legislation and policy-making decision, law, social justice, constitutional mandate and democratic set-up of the country would have no meaning for them. The observations made by the Tribunal seems to be in consonance with the observations made by the Hon'ble Apex Court in Air India Statutory Corporation v. United Labour Union (9), wherein the Apex Court observed as under:—
“Law is the ultimate aim of every civilized society, as a key system in a given era to meet the needs and demand of its time. Justice, according to law, comprehends social urge and commitment. The
Constitution commands justice. liberty, equality and fraternity as supreme values to usher in the egalitarian social, economic and political democracy. Social justice, equality and dignity of person are corner-stones of social democracy. The concept of ‘social justice’, which the constitution consists of diverse principles essential for the orderly growth and development of personality of every citizen……Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits, tribal and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. Social justice is not a simple or single idea of a society but is an essential part of complex social change to relieve the poor etc. from handicaps, penury to ward-off distress and the make their life liveable, for greater good of the society at large. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation and Constitutional goal.”
19. Similarly, in State of Karnataka v. Appu Balu Ingale (10), the Hon'ble Supreme Court observed that “poverty, illiteracy and caste system are positive dangers to the democracy. Democracy is essentially as form of society. Political democracy without social democracy cannot last long. Elevation of the less privileged to the level of other society is essential, otherwise democracy would be in danger. Political and economic democracy would be of no avail unless social inequalities are removed.”
20. The court very much appreciates the zeal of the Tribunal for having so much concern with poors, Dalits, down-troden, Scheduled Caste and Scheduled Tribes, but it erred in assuming the jurisdiction to decide the election petitions by applying the principle of substantial justice rather than deciding the same in consonance with the statutory provisions, for the reason that it is settled law that while deciding the election petition, the Tribunal has no option but to give a strict adherence to the mandate of the statutory provisions. The Court may like it or not, but it is bound to give effect to the wishes and mandate of the legislature.
21. In Martin Bush Ltd. v. Calcutta Corporation (11), the Apex Court observed as under:—
“A result flowing from the statutory provision is never an evil. The Court has no power to ignore that provision to relieve what it considers a distress resulting from operation. A statute must, of course, be given effect to, whether the Court likes the result or not.”
22. Similarly, in Shyam Kishori Devi v. Patna Municipal Corporation (12), the Apex Court held that “a Court must construe a Section, unless it is impossible to do so, to make it workable, rather than to make it unworkable….The words” of a stuatute should in interpretation be added to or substracted from without almost necessity.” Same view has been taken by the Supreme Court in the case of N. Narainan v. S. Semmelai (13); and Chanda Singh v. Chaudhary Shiv Ram Verma (14).
23. A nomination paper is to be filled-in in Form IV as prescribed under the Rules. After giving the particulars of name, sex, caste, number in the Voters-List and name of the candidate's father or husband, a candidate seeking election, has to make further declaration as provided therein. If the interpretation given by the Election Tribunal is accepted, the word “further” contained therein, would be rendered as surplage. The form is required to be duly filled-up. There is no obligation on the part of the Returning Officer to accept the form unless it is filledup as required under the law.
24. In Kasturi Lal v. Bharat Finance Company (15), a Division Bench of jammu & Kashmir High Court considered the meaning of the word “duly” used in Section 2(11) of the indian Stamps Act and after placing reliance on a large number of judgments of the Privy Council and the Hon'ble Supreme Court, the Court held that as the document did not bear the aggregrate amount of duty chargeable, required for the transaction, it could not be said to be duly stampped within the meaning of Section 2(11) and consequently was not admissible in evidence for any purpose under Section 35 of the Indian Stamps Act including the purpose to prove that the matter, on which the duty is chargeable, stood already paid. A document can be said to be duly filled-up only and only if it has been filled-up in accordance with law. (Vide New Central Jute Mills Co. Ltd. v. State of West Bengal (16). In Life Insurance Corporation of India v. D.J Bahadur (17), the Hon'ble Supreme Court has explained the meaning and scope of the word “duly”. It means, it must be done in accordance with law. In H.L Trehan v. Union of India (18), the Court noticed the meaning of the word “duly” as under:
“Ordinary dictionary meaning of the word “duly”, which according to Concised Oxford Dictionary, means: “rightly, properly, fitly; and according to Strouts Legal Dictionary (Fourth Edition), the word “duly” means “done in due course and according to law.” The word “duly” is very significant and excludes the arbitrary exercise of power and it prohibits any deprivation or curtailment of any requirement under the law.”
25. Therefore, where the statute requires that a form is to be duly filled-up and it is not found to be filled-up as required under the law, the form cannot be said to be acceptable for the reason that such requirement have to be made mandatorily and any deviation from that is not permissible.
26. In Radhe Shyam Saraf v. Registrar of Assurance, Calcutta (19), the Court considered the scope of mutatis mutandis while considering the provisions of Section 39 of the Registration Act, 1908 and held that the provisions are applied with such change as are necessary. The same consequence would flow and the law would be made applicable in the similar manner. The Act, therefore, insists upon the exact compliance with verious provisions introduced for the form of principles to be adopted for establishing the execution of a document. In other way, the concept of mutatis mutandis can be understood by considering the adoption of a particular provision of the statue in another statute dealing with the same subject matter by making a reference to the provisions of the earlier statute and not adopting by way of incorporation as explained by the Hon'ble Supreme Court in Gauri Shanker Gaur v. State of U.P (20); Avas Avum Vikas Parshed v. Jainul Islam (21).
27. In Mariyappa v. State of Karnataka (22), the Court considered the scope and contents of the words “mutatis mutandis” in Sec. 5 of the Karnataka Acquisition of Land for House-site Act, 1973 and observed that the words “mutatis mutandis” merely permit the application of the Central Act, 1894 with necessary changing and without altering the essential nature of the thing. The Court further observed that the question would again depend upon whether the Central Act has been incorporated in the Karnataka Act, or falls within the exception of such principle and whether S. 5 is to be treated as a piece of referential legislation.
28. As rule 56(3) provides for the application of rules 23 to 54 mutatis mutandis, it was mandatory for the contesting respondents to produce the certificates and there is no scope of acceptance of the submission of the other side that it was necessary only in case the candidate contests for the reserved constituency. Mentioning the name of the caste cannot fulfil the requirement of law as persons belonging to the same caste of a particular area may fall in the reserved category while of the other area may not. Thus, if the respondents wanted to identify themselves as persons belonging to the Scheduled Caste, they were mandatorily required to file the certificate, issued by the competent authority, belonging to the scheduled caste. The learned Tribunal has held that such a requirement cannot be taken into consideration in view of the judgment of this Court in Ganga Ram v. Dera Ram (23), wherein a Division Bench of this Court has held that the instructions issued by the Election Commission cannot be a substitute of the Election Rules. The said judgment has no application in the instant case for the reason that the executive instructions were found to be in contradiction of the statutory provisions. It is not the case here and, therefore, the said judgment has no application. Similarly, not filling-up the name of the constituency or the declaration cannot, even by imagination, be held to be a defect of technical or unsubstantial nature. Such defects were undoubtedly of substantial character and the forms were liable to be rejected on these counts, also. The requirement thereunder cannot be dispensed with. It is to be complied with mandatorily. Filling-up the name of the caste cannot be a substitute for filing of the certificate of belonging to Scheduled Caste/Scheduled Tribe. The observations made by the Tribunal that as the Returning Officer was having the knowledge and he filled-up the last part of the nomination paper regarding the name of the constituency and caste etc., there was no occasion for him to reject the form, run counter to the law of the land and cannot sustain in the eyes of law. The last part of the nomination form was meant to be filled-up by the Returning Officer and he had done his duty. However, it cannot relieve the contesting respondents from their responsibility to duly fill-up their nomination forms.
29. Thus, it is held that the Tribunal not only erred in holding that it had no competence to consider the additional pleas taken by the petitioner that respondents nominations were liable to be rejected on other grounds also, but also on the issue of requirement of filing of certificates of belonging to Scheduled Castes.
30. In view of the above, the petitions succeed and are allowed. The impugned judgment and order dated 14.7.98 passed by the Election Tribunal is set-aside. In the facts and circumstances of the case, there shall be no order as to costs.