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Representation of the People Act, 1951-Sections 33 and 36- Nomination paper-Substantial Defect-Meaning of-Name of candidate incorrectly mentioned in the electoral roll-No objection raised at the time of scrutiny of nominations-Held, the mistake was inadvertent or accidental and only technical-No substantial defect-Election Law. Representation of the People Act, 1951-Section 87-Election Petition- Challenge to election of a candidate-Burden of Proof-Held, burden lies on the person who challenges the election-No evidence led by any party to the election petition-Held, election petition would fail- Election Law. Legal Maxims : Falsa demonstratio non nocet cum be corrore constat-Meaning of. The appellant as well as the respondent filed their nomination papers for election to a legislative assembly. In the nomination paper of the respondent, his name was mentioned as “Babu Lal Marandi”. In the electoral roll of the constituency from where he was contesting, his name was present but was mentioned as “Babu Marandi” instead of “Babu Lai Marandi” though his father’s name and village were correctly mentioned. Against the names of his wife and his son, which appeared immediately after the name of the respondent, the correct name of the respondent, i.e. “Babu Lal Marandi” was mentioned. The respondent filed an application supported with affidavit before the returning officer pointing out the said mistake and seeking correction thereof. At the time of the scrutiny of the nomination paper, the electoral roll of the constituency was seen by the returning officer. No objection was raised by any of the candidates or the appellant at that time. The returning officer entered into a suo moto enquiry for his own satisfaction and being satisfied accepted the nomination paper of the respondent. The respondent was declared elected in the election. The appellant filed an election petition before the High Court challenging the election of the respondent on the ground that in the nomination paper, the name of the respondent was mentioned as “Babu Lal Marandi” which did not appear in any of the electoral roll of any assembly constituency. He further alleged that the respondent has not filed certified copy of the electoral roll of any constituency reflecting his name therein and therefore, the respondent was not competent to contest the election. No evidence was led either by the appellant or by the respondent before the High Court. The High Court rejected the election petition filed by the appellant. Against the said order, the appellant preferred appeal under Section 116 A of the Representation of the People Act, 1951. Citation: 2004 AIR 1067,2003(4 )Suppl.SCR1170,2003(8 )SCC613 ,2003(9 )SCALE74 ,2003(8 )JT460 Court Name: Supreme Court=PETITIONER: Harikrishna Lal RESPONDENT: Babu Lal Marandi = 2003 (Oct.Part)judis.nic.in/supremecourt/filename=19410

Representation of the People Act, 1951-Sections 33 and 36- Nomination paper-Substantial Defect-Meaning of-Name of candidate incorrectly mentioned in the electoral roll-No objection raised at the time of scrutiny of nominations-Held, the mistake was inadvertent or accidental and only technical-No substantial defect-Election Law. Representation of the People Act, 1951-Section 87-Election Petition- Challenge to election of a candidate-Burden of Proof-Held, burden lies on the person who challenges the election-No evidence led by any party to the election petition-Held, election petition would fail- Election Law. Legal Maxims : Falsa demonstratio non nocet cum be corrore constat-Meaning of. The appellant as well as the respondent filed their nomination papers for election to a legislative assembly. In the nomination paper of the respondent, his name was mentioned as “Babu Lal Marandi”. In the electoral roll of the constituency from where he was contesting, his name was present but was mentioned as “Babu Marandi” instead of “Babu Lai Marandi” though his father’s name and village were correctly mentioned. Against the names of his wife and his son, which appeared immediately after the name of the respondent, the correct name of the respondent, i.e. “Babu Lal Marandi” was mentioned. The respondent filed an application supported with affidavit before the returning officer pointing out the said mistake and seeking correction thereof. At the time of the scrutiny of the nomination paper, the electoral roll of the constituency was seen by the returning officer. No objection was raised by any of the candidates or the appellant at that time. The returning officer entered into a suo moto enquiry for his own satisfaction and being satisfied accepted the nomination paper of the respondent. The respondent was declared elected in the election. The appellant filed an election petition before the High Court challenging the election of the respondent on the ground that in the nomination paper, the name of the respondent was mentioned as “BabuLal Marandi” which did not appear in any of the electoral roll of any assembly constituency. He further alleged that the respondent has not filed certified copy of the electoral roll of any constituency reflecting his name therein and therefore, the respondent was not competent to contest the election. No evidence was led either by the appellant or by the respondent before the High Court. The High Court rejected the election petition filed by the appellant. Against the said order, the appellant preferred appeal under Section 116 A of the Representation of the People Act, 1951.
Citation: 2004 AIR 1067,2003(4 )Suppl.SCR1170,2003(8 )SCC613 ,2003(9 )SCALE74 ,2003(8 )JT460
Court Name: Supreme Court

Dismissing the appeal, the Court HELD : 1.1. The omission of the second name `Lal’ from the voters’ list is inadvertent or accidental and in any case merely technical. In the voters’ list as well as the nomination paper the respondent was correctly described. There is no doubt about the identity of the respondent. [1183-C, 1181-F-G, 1183-D] 1.2. Acceptance or rejection of the nomination paper by the returning officer shall depend on his forming an opinion as to whether the defect is of a non-substantial character or of a substantial character. A bare reading of the provisions of Section 33 of the Representation of the People. Act, 1951 shows that so far as sub-section (4) is concerned the effect of non-compliance may be merely an irregularity which would not necessarily entail the rejection of nomination paper. [1180-F, E-F] Harcharan Singh v. S. Mohinder Singh and OTHERS , AIR (1968) SC 1500; Viveka Nand Giri v. Nawal Kishore Sahi, [1984] 3 SCC 10 and Karnail Singh v. Election Tribunal Hissar and OTHERS , 10 ELR 189, referred to. 2.1. If the want of qualification does not appear on the face of the nomination paper or the electoral roll but is a matter which could be established only by evidence, an inquiry at the stage of the scrutiny of nomination papers is required under the Representation of the People Act, 1951 only if there is an objection to the nomination. The returning officer is then bound to make such inquiry as he thinks proper on the result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. [1183-G-H, 118-A] Durga Shankar Mehta v. Raghurai Singh and OTHERS , AIR (1954) SC 250, relied on. 2.2. On the face of the nomination paper the respondent was not disqualified in any manner. The returning officer satisfied himself as to the identity of the respondent and, the electoral roll of the constituency, which was available with him to be seen, pointed out only an inconsequential technical variation in description. If the contention of the appellant is that the respondent was not an elector of the constituency and his nomination paper was therefore liable to be rejected for failure to file a certified copy of entries of the relevant electoral roll, then it was for the appellant to raise that objection so as to put the returning officer on notice, who in his turn would have afforded the respondent an opportunity of meeting the objection. [ 1184-B-D] 2.3. In the present case, the appellant did not raise any objection to the validity of the nomination filed by the respondent. He never submitted the name of the respondent as appearing in the nomination did not agree with the name as appearing in the voters’ list and therefore the nomination was not valid. Nor did he object that the respondent was not an elector registered in the voters’ list of that constituency. The identity of the respondent was never called in question. [1181-B-C] 3.1. It is true that mere failure of the appellant in raising objection to the validity of the nomination paper filed by the respondent before the returning officer does not stop or exclude him from raising a plea before the High Court that the nomination paper filed by the respondent was liable to be rejected or could not have been accepted. But the fact remains that it will be for the election petitioner to raise necessary pleadings and, if traversed, to substantiate the same by adducing the necessary evidence. [1184-E-G] N.T. Veluswami Thevar v. G. Raja Nainar AND OTHERS , AIR (1959) SC 422, referred to. 3.2. The success of a winning candidate is not to be lightly interfered with. The burden of proof lies on the one who challenges the election to raise necessary pleadings and adduce evidence to prove such averments as would enable the result of the election being set aside on any of the grounds available in law. In an election petition if nobody adduces evidence it is the election petitioner who fails. [1185-B-C] 3.3. Before the High Court, the appellant has chosen not to adduce any evidence to demonstrate that the returning officer was not right in arriving at the satisfaction which he did or that the respondent was not enrolled in the electoral list of that constituency or was the one enrolled in some other constituency. The High Court has not erred in holding that the election of the respondent is not liable to be set aside. [1183-E-F] 4. Maxim “Falsa demonstratio non nocet cum de corrore constat” means mere false description does not vitiate, if there be sufficient certainty as to the object. “Falsa demonstratio” means an erroneous description of a person or a thing in the written instrument; and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the device: the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. [1182-G-H, 1183-A] Broom’s Legal Maxims 10th Edition, referred to. Shaligram Shrivastava v. Naresh Singh Patel, [2003] 2 SCC 176, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5841 of 2002.

CASE NO.:

Appeal (civil)  5841 of 2002

PETITIONER:

Harikrishna Lal

RESPONDENT:

Babu Lal Marandi

DATE OF JUDGMENT: 30/10/2003

BENCH:

R.C. LAHOTI & ASHOK BHAN

JUDGMENT:

J U D G M E N T

R.C. Lahoti, J.

 An election, to choose one member to the Jharkhand Legislative

Assembly from 23-Ramgarh Assembly Constituency, was held in the

month of January-February 2001 to fill up the vacancy caused by the

death of the then sitting member.  Though there were more than two

candidates in the election fray, the legal battle in the Court arena has

continued only between the appellant and the respondent, the two out

of the several candidates, in the backdrop of the controversy arising

for decision.  The nomination paper filed by the appellant was rejected

by the returning officer.  He could not participate in the elections. The

respondent was declared elected on 23.2.2001.  An election petition,

laying challenge to the election of the respondent and seeking setting

aside of his election, was filed in the High Court of Jharkhand at

Ranchi.   The facts  relevant for the purpose of appreciating the issues

arising for decision in this appeal, are briefly set out hereunder.

As per the election programme notified by the Election

Commission of India, the nomination papers could be filed on January

25, 2001 through January 31, 2001 between 11 a.m. and 3 p.m.

before the returning officer who was the Sub-Divisional Officer of

Ramgarh.  The scrutiny of the nominations took place on February 1,

2001.  February 3, 2001 was the date for withdrawal of nomination, if

any.  The nomination paper filed by the appellant was rejected by

reference to Section 8 of the Representation of the People Act, 1951

(hereinafter ‘the Act’, for short) for failure of the appellant to furnish

certain information in a prescribed proforma supported by an affidavit,

stating as to whether the petitioner was not disqualified to contest the

election due to any conviction for committing any offence as required

under Section 8 of the Act.  The prescribed proforma for furnishing the

information and the form of affidavit, though supplied to the petitioner

by the returning officer, were not filed up to the date and time

appointed for scrutiny of nominations.  So far as this aspect of the

case is concerned, the controversy stands resolved by a recent

decision of this Court in Shaligram Shrivastava Vs. Naresh Singh

Patel, (2003) 2 SCC 176. The appellant appearing in-person has very

fairly stated that he does not want to pursue any further this plea,

disputing the rejection of his nomination paper, in view of the

abovesaid decision of this Court.

The next controversy, and now the only one surviving for

decision, is as to whether the nomination paper filed by the

respondent suffered from any defect of a substantial character.

Inasmuch as this issue has been highlighted by the appellant from

very many angles, it would be useful to reproduce and set out from

the averments made in the election petition itself as to what the

appellant’s case is.  According to the appellant  __

 “The returning officer ought to have rejected

the nomination papers of the respondent on the

following grounds:-

(a)That the respondent’s name is ‘Babulal’.  His

surname is Marandi.  He is known,

recognized, addressed and identified every

where by this name ‘Babulal Marandi’ alone

and not by any other name or surname

whatsoever.

The name of the respondent Babu Lal

Marandi has not been enrolled as an elector

in the electoral roll of any Assembly

constituency of Legislative Assembly of

Jharkhand State.

He has not filed certified copy of any

Assembly constituency of Jharkhand

Legislature to the Returning Officer either at

the time of filing his nomination papers or at

the time of scrutiny showing therein that his

name ‘Babu Lal Marandi’ has been registered

as an elector in that Assembly Constituency.

Thus, the respondent is not competent to

contest the said election.  His nomination

papers filed to the returning officer suffer

from a defect of substantial character under

Section 36(4) of the R.P. Act, 1951 and they

ought to have been rejected by the

Returning Officer.”

The respondent has in his written statement denied the

averment made by the election petitioner and submitted __

“that the name printed in the Electoral Roll is Babu

Marandi instead of Babu Lal Marandi and his

father’s name is correct, village is correct and in

between ‘Babu’ and ‘Marandi’, ‘Lal’ is not printed.

In this regard, it is submitted that answering

respondent filed an application before the

Returning Officer, Ramgarh on 29.1.2001

mentioning there that the correct name of the

respondent is Babu Lal Marandi son of Sri Chhotu

Marandi, Village Kodaibank, P.O. Chandauri, P.S.

Tisri, District Giridih but by mistake in the Voter

List, his name is printed as Babu Marandi son of Sri

Chhotu Marandi and requested him to correct his

name.”

It is further submitted in the written statement that the respondent is

known as Babu Marandi and also as Babu Lal Marandi.  Apparently, in

the Voters List, the word ‘Lal’ in between ‘Babu’ and ‘Marandi’ has

been left out due to mistake.  It is clear from the fact that below the

respondent’s name, the name of his wife Shanti Marandi, wife of Babu

Lal Marandi (the respondent) is mentioned. In continuity the name of

the respondent’s son Sanstan Marandi, son of Babu Lal Marandi (the

respondent) is mentioned.  A photocopy of the Voters List supporting

the above said plea was annexed with the written statement.  The

respondent had also moved an application duly supported by an

affidavit seeking rectification of the above said error in the Voters List.

Copies of the application, the affidavit, and the receipt showing the

deposit of fee for correction were also filed with the written statement.

The respondent has then submitted that such a printing mistake in the

Voters List did not affect the identity of the respondent and is certainly

not a ground on which his nomination paper could have been rejected.

The electoral roll of the constituency was seen by the returning officer

at the time of scrutiny and the nomination paper, having been found in

order, was accepted.  There was no objection raised by anyone or the

election petitioner at the time of the scrutiny.  The returning officer

rightly accepted the nomination paper of the respondent.

On the pleadings of the parties, one of the issues framed by the

learned designated Election Judge was:-

“Whether the real name of the respondent Babulal

Marandi is not registered in the electoral roll of any

of the Assembly Constituencies of the Jharkhand

Legislative Assembly and, as such, he is not

qualified to contest the election from 23-Ramgarh

Assembly Constituency?”

The case was posted for trial.  The election petitioner declared

that he was not adducing any evidence. The respondent too chose not

to adduce any evidence. The arguments were heard.  The High Court

has found the averment made in the election petition not

substantiated.  In the opinion of the High Court the returning officer

has not erred in accepting the nomination paper of the respondent.

The election petition has been directed to be dismissed.

The election petitioner has filed this appeal under Section 116A

of the Act.

We have heard the appellant, appearing in-person, who argued

the case from all possible angles and Shri Sanyal, the learned senior

counsel for the respondent.  We are satisfied that no fault can be

found with the view taken by the High Court in dismissing the election

petition and consequently this appeal too is liable to be dismissed.

The relevant statutory provisions which would clinch the singular

issue surviving for decision in this appeal are extracted from the Act

and reproduced hereunder:

33.Presentation of nomination paper

and requirements for a valid

nomination. –

(1) to (3) xxxxxxxxx

(4)On the presentation of a nomination

paper, the returning officer shall satisfy

himself 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:

[Provided that no misnomer or inaccurate

description or clerical, technical or printing

error in regard to the name of the candidate

or his proposer or any other person, or in

regard to any place, mentioned in the

electoral roll  or the nomination paper and

no clerical, technical or printing error in

regard to the electoral roll numbers of any

such person in the electoral roll or the

nomination paper, shall affect the full

operation of the electoral roll or the

nomination paper with respect to such

person or place in any case where the

description in regard to the name of the

person or place is such as to be commonly

understood; and the returning officer shall

permit any such misnomer or inaccurate

description or clerical, technical or printing

error to be corrected and where necessary,

direct that any such misnomer, inaccurate

description, clerical, technical or printing

error in the electoral roll or in the nomination

paper shall be overlooked.]

(5)Where the candidate is an elector of a

different constituency, a copy of the electoral

roll of that constituency or of the relevant

part thereof or a certified copy of the

relevant entries in such roll shall, unless it

has been filed along with the nomination

paper, be produced before the returning

officer at the time of scrutiny.

36. Scrutiny of nominations. –  (1)On the

date fixed for the scrutiny of nominations

under section 30, the candidates, their

election agents, one proposer of each

candidate, and one other person duly

authorized in writing by each candidate but

no other person, may attend at such time

and place as the returning officer may

appoint; and the returning officer shall give

them all reasonable facilities for examining

the nomination papers of all candidates

which have been delivered within the time

and in the manner laid down in section 33.

(2)The returning officer shall then

examine the nomination papers and shall

decide all objections which may be made to

any nomination and may, either on such

objection or on his own motion, after such

summary inquiry, if any, as he thinks

necessary, reject any nomination on any of

the following grounds :-

[(a) [that on the date fixed for the scrutiny

of nominations the candidate] either is not

qualified for being chosen to fill the seat

under any of the following provisions that

may be applicable, namely:-

Articles 84, 102, 173 and 191,]

[Part II of this Act and sections 4 and 14 of

the Government of Union Territories Act,

1963 (20 of 1963); or

(b)that there has been a failure to

comply with any of the

provisions of section 33 or

section 34; or

(c)that the signature of the

candidate or the proposer on

the nomination paper is not

genuine.]

(3)xxxxxxxxx

(4)The returning officer shall not reject

any nomination paper on the ground of any

defect which is not of a substantial

character.

(5)The returning officer shall hold the

scrutiny on the date appointed in this behalf

under clause (b) of section 30 and shall not

allow any adjournment of the proceedings

except when such proceedings are

interrupted or obstructed by riot or open

violence or by causes beyond his control :

Provided that in case [an objection is

raised by the returning officer or is made by

any other person] the candidate concerned

may 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 to which

the proceedings have been adjourned.

(6)The returning officer shall endorse on

each nomination paper his decision accepting

or rejecting the same and, if the nomination

paper is rejected, shall record in writing a

brief statement of his reasons for such

rejection.

[emphasis supplied]

It is pertinent to point out that the proviso to sub-section (4) of

Section 33 was not to be found in the Act as originally enacted; the

same was inserted by Amending Act 47 of 1966 with effect from

14.12.1966.  Notes on Clauses of the Bill proposing the amendments

speak of the abovesaid proviso as under:

“. . . . . . . . . .   The new proviso to sub-section (4)

is comprehensive in nature and it is on the lines of

sub-section (5) of section 39 of the U.K.

Representation of the People Act, 1949.  This has

been done to remove all possible doubts about the

power of the returning officer to correct any

misnomer or inaccurate description in regard to the

name of a candidate or his proposer or any other

person or in regard to any place mentioned in the

electoral roll or in the nomination paper.”

(See Gazette of India, Extraordinary, dated August 29, 1966, Part 2

Section 2 page 667, 699).

A bare reading of the provisions shows that so far as sub-

section (4) of Section 33 is concerned the effect of non-compliance

may be merely an irregularity which would not necessarily entail the

rejection of nomination paper.  Acceptance or rejection of the

nomination paper by the returning officer shall depend on his forming

an opinion as to whether the defect is of a non-substantial character or

of a substantial character.  A statutory duty is cast on the returning

officer to scrutinize the nomination papers on the appointed date

without adjourning the proceedings.  If the returning officer finds any

irregularity or defect in the nomination paper he may hold an enquiry

suo motu affording the candidate, whose nomination is under scrutiny,

an opportunity to satisfy the returning officer that no such defect or

irregularity exists.  An objection may be raised by any other person

and in that case also the candidate concerned may be allowed time to

rebut the objection.  Within the meaning of proviso to sub-section (5)

of Section 36 the returning officer has to record his decision by way of

acceptance or rejection of the nomination paper.  If the nomination

paper is rejected a brief statement of his reasons for such rejection

has to be recorded in writing.

 In the present case, the appellant did not raise any objection to

the validity of the nomination filed by the respondent.  He never

submitted that the name of the respondent as appearing in the

nomination did not agree with the name as appearing in the voters’ list

and therefore the nomination was not valid.  Nor did he object that the

respondent was not an elector registered in the voters’ list of that

constituency.  The identity of the respondent was never called in

question.  It seems from the plea taken in the written statement and

the annexures filed with the written statement that the returning

officer suo motu asked the respondent to satisfy him on the minor

discrepancy which appeared in the voters’ list and the nomination

paper, i.e., while the voters’ list of the constituency contained the

entry “Babu Marandi, father’s name – Chotu Marandi, sex – Male, age –

37 years, resident of village Kodaibank, P.S. Tisri, Distt. Giridih”, the

nomination paper mentioned the name of the respondent as ‘Babulal

Marandi’, with all other particulars remaining the same as entered in

the voters’ list. Thus, the only variation in the name of the respondent

was that of ‘Babu Marandi’ and ‘Babulal Marandi’.  The respondent

contended before the returning officer by filing an affidavit that he was

known both as ‘Babu Marandi’ and ‘Babulal Marandi’, and that the

omission of ‘Lal’ in the voters’ list was inadvertent, erroneous and in

any case technical.  It is well-known that in Indian society the name of

a person consists of the first name, the second name and the surname

or the family name.  The first name and the family name of the

respondent tallied; the second name was mentioned in the nomination

paper but was not found to be mentioned in the voters’ list.  According

to the plea taken in the written statement all other descriptions such

as  father’s name, age, sex and residence etc. of the respondent as

given in the voters’ list and as appearing in the nomination paper

tallied.  There was thus no defect in the nomination paper.  The

respondent being a candidate from that very constituency wherein he

was enrolled as an elector, it was not necessary for him to file a

certified copy of the relevant entries in electoral roll or to produce the

same at the time of scrutiny.

In Harcharan Singh Vs. S. Mohinder Singh and Ors. – AIR

1968 SC 1500 the purpose of the provisions contained in Sections 33

and 36 of the Act was  stated by their Lordships in these words – “The

primary purpose of the diverse provisions of the election law which

may appear to be technical is to safeguard the purity of the election

process and the Courts will not ordinarily minimize their operation.”

Their Lordships further observed that “the statutory requirements of

election law must be strictly observed.  An election dispute is a

statutory proceeding unknown to the common law: it is not an action

at law or in equity.  But under S.36(4) the Returning Officer is entitled

to accept the nomination paper even if it be defective, if the defect is

not of a substantial character.  He is enjoined not to reject the

nomination paper unless the defect is of a substantial character.”

Harcharan Singh’s case (supra) was one where the details for

identifying the appellant as an elector were duly furnished and his age

though mentioned in the nomination paper was not to be found in the

certified copy produced by him and no objection was raised to the

acceptance of the nomination paper on behalf of the contesting

candidate.  The returning officer satisfied himself by personal enquiry

that the appellant was above the age of 25 and therefore competent to

stand for election.  It was held that even though the copy produced

was defective because of the absence therefrom of the house number

entered in the electoral register, yet the defect was not of a

substantial character and hence the returning officer was justified in

not rejecting the nomination paper.  In Viveka Nand Giri Vs. Nawal

Kishore Sahi – (1984) 3 SCC 10 there was a difference in the age as

recorded in the electoral roll and as stated in the nomination paper.  It

was held that the nomination paper would fall in the category of an

inaccurate description and the returning officer could not have rejected

the nomination. In Karnail Singh Vs. Election Tribunal, Hissar and

Ors. – 10 ELR 189 the name of the Sub-Division was not stated in the

nomination paper.  However, it was quite clear that there was no

difficulty in identifying the candidate.  The defect was held to be a

technical one and not of substantial character.

A reference may usefully be made to the maxim “Falsa

demonstratio non nocet cum de corrore constat” which means mere

false description does not vitiate, if there be sufficient certainty as to

the object.  ‘Falsa demonstratio’ means an erroneous description of a

person or a thing in a written instrument; and the above rule

respecting it signifies that where the description is made up of more

than one part, and one part is true, but the other false, there, if the

part which is true describes the subject with sufficient legal certainty,

the untrue part will be rejected and will not vitiate the devise: the

characteristic of cases within the rule being that the description, so far

as it is false, applies to no subject at all, and, so far as it is true,

applies to one only. (See Broom’s Legal Maxims, 10th Edition, pp. 426-

427).  Broom quotes (at page 438) an example that an error in the

proper name or in the surname of the legatee should not make the

legacy void, provided it could be understood from the will what person

was intended to be benefited thereby.

There is no manner of doubt that the respondent is a duly

enrolled elector in the voters list of No.23 Ramgarh Assembly

Constituency.  In the voters list as well as in the nomination paper the

respondent was correctly described.  The omission of his second name

‘Lal’ from the voters list is inadvertent or accidental and in any case

merely technical.  There is no doubt about the identity of the

respondent.  Apparently that is why none of the  candidates including

the writ petitioner and no one else raised any objection to the

acceptance of the nomination paper by submitting that the respondent

was not a registered elector of the constituency.  The returning officer

entered into suo moto enquiry for his own satisfaction, and felt

satisfied by looking into the electoral list of the constituency available

with him, that the respondent Babu Lal Marandi was the same person

who was mentioned as Babu Marandi in the electoral list.  Being an

elector in the same constituency wherefrom he was contesting election

it was not necessary for him to have filed a certified copy of the

relevant entry from the voters list. Before the High Court, the writ

petitioner has chosen not to adduce any evidence to demonstrate that

the returning officer was not right in arriving at the satisfaction which

he did or that the respondent was not enrolled in the electoral list of

that constituency or was the one enrolled in some other constituency.

The High Court has not erred in holding the election of the respondent

not liable to be set aside.

 In  Durga Shankar Mehta Vs. Raghuraj Singh and Ors. –

AIR 1954 SC 250 the Constitution Bench has held that if the want of

qualification does not appear on the face of the nomination paper or of

the electoral roll but is a matter which could be established only by

evidence, an enquiry at the stage of the scrutiny of the nomination

papers is required under the Act only if there is any objection to the

nomination.  The Returning Officer is then bound to make such enquiry

as he thinks proper on the result of which he can either accept or

reject the nomination.  But when the candidate appears to be properly

qualified on the face of the electoral roll and the nomination paper and

no objection is raised to the nomination, the Returning Officer has no

other alternative but to accept the nomination.

 The law so laid down by the Constitution Bench squarely applies

to the present case. On the face of the nomination paper the

respondent was not disqualified in any manner.  The returning officer

satisfied himself as to  the identity of the respondent and, the electoral

roll of the constituency, which was available with him to be seen,

pointed out only an inconsequential technical variation in description,

as already stated hereinabove.  If the contention of the appellant is

that the respondent was not an elector of the constituency and his

nomination paper was therefore liable to be rejected for failure to file a

certified copy of entries of the relevant electoral roll, then it was for

the appellant to raise that objection so as to put the returning officer

on notice, who in his turn could have afforded the respondent an

opportunity of meeting the objection.  Clearly there is no merit in the

plea raised by the appellant.

It is true that mere failure of the appellant in raising objection to

the validity of the nomination paper filed by the respondent before the

returning officer does not stop or exclude the election petitioner from

raising a plea before the High Court that the nomination paper filed by

the respondent was liable to be rejected or could not have been

accepted.  The enquiry which the returning officer has to make under

Section 36 of the Act is summary in character, which he may make as

he thinks necessary either suo moto or on an objection being raised.

Whether such an enquiry was held or not and if held whatever may

have been the result, the propriety of rejection or acceptance of a

nomination paper can always be raised by way of election

petition.(See N.T. Veluswami Thevar Vs. G. Raja Nainar & Ors.,

AIR 1959 SC 422).  But the fact remains that it will be for the election

petitioner to raise necessary pleadings and, if traversed, to

substantiate the same by adducing the necessary evidence.  This the

election petitioner has failed to do before the High Court.  The

inevitable consequence of the election petition being dismissed has

rightly followed.

Even otherwise we find no substance in the plea raised by the

election petitioner.

The appellant submitted that in the election petition it was

specifically alleged that the respondent was not an elector belonging to

the constituency and that it was further obligatory for the respondent

to adduce evidence to show that he was qualified to be a candidate

without the need of filing the certified copies of entries in the electoral

roll before the returning officer.  Such a submission runs counter to

basics of election law.  The success of a winning candidate is not to be

lightly interfered with.  The burden of proof lies on the one who

challenges the election to raise  necessary pleadings and adduce

evidence to prove such averments as would enable the result  of the

election being set aside on any of the grounds available in the law.  In

an election petition if nobody adduces evidence it is the election-

petitioner who fails.  The High Court rightly framed the issue placing

the burden of proof on the election- petitioner.  As no evidence was

adduced by the election-petitioner, the High Court rightly dismissed

the election petition.

The appeal is devoid of any merit and liable to be dismissed.  It

is dismissed though without any order as to the costs.

 

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