# HARCHARAN SINGH v. MOHINDER SINGH & ORS

- **Citation:** [1969] 1 S.C.R. 198
- **Court:** Supreme Court of India
- **Decided:** 1967-09-01
- **Case number:** Election Petition No. 4 of 1967
- **Bench:** J. C. Shah, Y. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harcharan-singh-v-mohinder-singh-ors-4374
- **Pages:** 8

## Headnote

Reprr<r11w1io11 of
thr l'eop/e
Act
(43 of 1951 ) .. tr. 33(5) and
36(4)-Certified copy of <'<!rli{ic:arc filed hv candidate \\'lro is a voter
in diff.::re11t constituency fails to set
ou1 (igc, and house
number-I/
dcfecr sub_,·rn11tial to reject fl()/nination.
The nppi:llant filed his nomination paper for a se.;:ll to the Vidban
Sabha of a constituency different fron1 the one in v.•hich his name was
included as a voter.
With his nomin.;1tion
paper, the
appellant had
producl.-d an applicarion for a certified extract on the reverse of which
\\'as recorded a. certificate. containing relevant entries from the Voters·
list.
"fhe entries in certificate did not t;1\ly in all respects with
the
entries jn the voters' list. in that it failed to set out the 3J?C of he -appellant and hi'i huusc number.
No objection to the nomination paper was
raised before the returning officer.
·rhc returning officer accepted the
nomination and held that the particular~
"'·ere. correct. and that
the
appcllant was over 15 years of age.
The appellant was declared elected.
"fhc first respondent. an
un~uccessful candidate,
challen.~ed the validity
of the election of the appellant on the ground that the appellant
had
failed to produce before the scrutiny of nomination paper. lhe electoral
roll or a certified copy of the relevant entries in the roll in
which
his
name wa-; included as voter as requir~d by s. 33 (5) of the Representation of the People Act.
The lli~h Court sci aside the election. In
appeal. this Court :
HELD : The appeal must be allowed.
A
B
c
D
E
The copy of the relevant entries frnm the electoral roll relating to
the appellant was defective.
But under s. 36( 4) the
returning
officer
is entitled to accept the nomination paper even if it he defective. if the
defect is not of a substantial character : indeed he is enjoined not to
reject ·the non1ination paper unlcs-; the defect is of a suhslantial character.
The details for indentifvin.J! the appellant as an elector \\·ere duly furnish·
ed.
His a~c- w;1s mentioned in the nomination paper. though it was not
F
10 be found in the certified copy produced by the appell.im.
No obicc·
tion \i.:as raised to the acceptance of the nomination paper on behalf of
the contesting candidate and his agents present at the scrutiny. The
returning ofT1ccr satisfied himself by personal inquiry th:-.t the ~ppcltant
\vas above the :lge of twenty·five and cornpctent to stand for election.
It wa.o; true that he did not come to the conclusion th:-it the defect in the
copy of the clt.-ctoral roll v;as of a substantial
char~ctcr. [204 G-H;
G
205 A-Bl
The decision of the returning officer in the matter is not final
~ind
in appropri:ltc cases it is open to the ('..()urt lo reach a different COf!·
c:u~ion in <i.n election petition.
Jn this case. the appellant was not ncgh-
~!...-nl nor .... ·as the
purity of election
proccs:. likely to he
affcct~d on
iiccount of the defects in the copv produced by the
appellant. The
defects in the certificate v.·erc not of :1 suhstantial character.
Therefore
the retl1;·nin" officer did not err in not
rcjcctin~ the nomination paper.
II
'
[204 B-C]
Sri Barn Ram v. Sh,.imati Prasnnni
& Ors. [1959]
SC.R.
1403,
referred 10.
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HARCHARAN SINGH V. MOHINDER SINGH (Shah, J.)
19 9·
A

## Text

HARCHARAN SINGH
v.
MOHINDER SINGH & ORS.
May I, 1968
[J. C. SHAH AND Y. BHARGAVA, JJ.)
Reprr<r11w1io11 of
thr l'eop/e
Act
(43 of 1951 ) .. tr. 33(5) and
36(4)-Certified copy of <'<!rli{ic:arc filed hv candidate \\'lro is a voter
in diff.::re11t constituency fails to set
ou1 (igc, and house
number-I/
dcfecr sub_,·rn11tial to reject fl()/nination.
The nppi:llant filed his nomination paper for a se.;:ll to the Vidban
Sabha of a constituency different fron1 the one in v.•hich his name was
included as a voter.
With his nomin.;1tion
paper, the
appellant had
producl.-d an applicarion for a certified extract on the reverse of which
\\'as recorded a. certificate. containing relevant entries from the Voters·
list.
"fhe entries in certificate did not t;1\ly in all respects with
the
entries jn the voters' list. in that it failed to set out the 3J?C of he -appellant and hi'i huusc number.
No objection to the nomination paper was
raised before the returning officer.
·rhc returning officer accepted the
nomination and held that the particular~
"'·ere. correct. and that
the
appcllant was over 15 years of age.
The appellant was declared elected.
"fhc first respondent. an
un~uccessful candidate,
challen.~ed the validity
of the election of the appellant on the ground that the appellant
had
failed to produce before the scrutiny of nomination paper. lhe electoral
roll or a certified copy of the relevant entries in the roll in
which
his
name wa-; included as voter as requir~d by s. 33 (5) of the Representation of the People Act.
The lli~h Court sci aside the election. In
appeal. this Court :
HELD : The appeal must be allowed.
A
B
c
D
E
The copy of the relevant entries frnm the electoral roll relating to
the appellant was defective.
But under s. 36( 4) the
returning
officer
is entitled to accept the nomination paper even if it he defective. if the
defect is not of a substantial character : indeed he is enjoined not to
reject ·the non1ination paper unlcs-; the defect is of a suhslantial character.
The details for indentifvin.J! the appellant as an elector \\·ere duly furnish·
ed.
His a~c- w;1s mentioned in the nomination paper. though it was not
F
10 be found in the certified copy produced by the appell.im.
No obicc·
tion \i.:as raised to the acceptance of the nomination paper on behalf of
the contesting candidate and his agents present at the scrutiny. The
returning ofT1ccr satisfied himself by personal inquiry th:-.t the ~ppcltant
\vas above the :lge of twenty·five and cornpctent to stand for election.
It wa.o; true that he did not come to the conclusion th:-it the defect in the
copy of the clt.-ctoral roll v;as of a substantial
char~ctcr. [204 G-H;
G
205 A-Bl
The decision of the returning officer in the matter is not final
~ind
in appropri:ltc cases it is open to the ('..()urt lo reach a different COf!·
c:u~ion in <i.n election petition.
Jn this case. the appellant was not ncgh-
~!...-nl nor .... ·as the
purity of election
proccs:. likely to he
affcct~d on
iiccount of the defects in the copv produced by the
appellant. The
defects in the certificate v.·erc not of :1 suhstantial character.
Therefore
the retl1;·nin" officer did not err in not
rcjcctin~ the nomination paper.
II
'
[204 B-C]
Sri Barn Ram v. Sh,.imati Prasnnni
& Ors. [1959]
SC.R.
1403,
referred 10.
•
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•
..
•
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HARCHARAN SINGH V. MOHINDER SINGH (Shah, J.)
19 9·
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1554 of.
B
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1967.
Appeal from the judgment and order dated September 1, 1967
of the Punjab and Haryana High Court in Election Petition No.
4 of 1967.
S. V. Gupte, Mehra Singh Chaddah and Harbans Singh, for
the appellant.
A. K. Sen, R. L. Kohli and J. C. Ta/war,
for respondent
No. I.
The Judgment of the Court was delivered by
Shah, J. At the general elections held in February 1967 the
appellant polled the largest number of votes and was declared
elected to the Punjab Vidhan Sabha from the Zira Constitue'lcy .
The first respondent S. Mohinder Singh, who was a candidate at
the election, applied to tlle High Court of Punjab for setting.
a5ide the election of the appellant on the ground that the nomination of the appellant who was not a voter in the Zira Constituency was improperly accepted by the Returning Officer. for the
appellant had failed to file before the scrutiny a copy of the electoral roll or the relevant part thereof or a certified copy of the·
relevant entries of the poll pertaining to the constituency to which
he belonged, and that the result of tlle election to the Zira Constituency insofar as it concerned the appellant was materially
affected by improper acceptance of his nomination.
The High
Court upheld the contention and set aside the election of the·
appellant and declared the election of the appellant void under
s. lOO(l)(d)(i) of the Representation of the People Act, 1951.
Against that order the appellant has appealed to this Court.
The name of the appellant is included as a voter in the Gidderbha Constituency, and his name is not included in the !ist of
electors in the Zira Constituency.
But on that account he was
not disqualified from standing for election from the Zira Constituency.
The validity of the election of the appellant was challenged
only on the ground that the appellant had failed to produce before
the scrutiny of nomination papers, the electoral roll, or a cert;fied
copy of the relevant entries in that roll concerning him.
By sub-s. ( 4) of s. 33 of the Act the returning officer is
dirncted to satisfy himself when the nomination paper is prescribed that the names and electoral numbers of the candidate and
his proposer as entered in the nomination paper are the slmc as
tho5e entered in the electoral rolls.
Sub-section
(5)
provides
th3t 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 nomi:;ation
papers, be produced before the returning officer at the time of
200
SlJl'ROll: COt:RT REPORTS
11 %9) I S C.R.
scrutiny. The appellant not beini; an elector in the Zira ConstituA
-ency, he had to produce either with the nomination paper or at
the time of scrutiny the relevant part of the electoral roll. or "
certified copy of -the relevant entries in the electoral roll.
Section
36 deals with the scrutinv of nomination.
Hv sub-s. 12) of s. 3h
it is provided :
-
•
"(2) The returning ol!iccr sha\\ then examine the
B
nomination papers and-shall decide all objections wli.ch
may be made to any nomination, and may. either on
such objections, or on his own molion. after such summary inquiry. if any, ;is he thinks
necessary,
reject
any nomination on any of the following grounds :
(a) that on the date fixed for the scrutiny of nomic
nations the candidate either is not qualified or
is disqualified for hcing chosen to fill the seat
under any of the following provisions that may
be applicable. namely :
Articles 84, 102, 173 and 191.
(h) that there has been a failure to
comply
with
any of the provisions of section 33 or seetkn
34; or
(c)
,,
D
By sub-s.
( 4) the rcturnin~ ofliccr is enjoined not to reject any
nomination paper on the ground of any defect which is not of a
E
,;u~tantial character.
Sub-section ( 7) of s. 36 provid~> :
"For the purposes of this section, a certified copy of
an entry in the electoral roll for the time hcing in force
of a cmmituency shal! be conclusive evidence of the
fact that the person referred
to in that entry is
3!1
elector for that constituency. unless it is proved that he
F
is subject to a disqualification mentioned in section 16
of the Representation <Jf the People Act. 1950."
This Court in Sri lJ11r11 Ram v. Shrimati Prasanni & Ors. ( ')
0bservcd at p. 1418 :
"Sub-section (5) of s. 33 deals with the stage of the
scrutiny of the nominc1tion papers and it provides that
where a candidate is an elector of a different constituency, a copv of the electoral roll of that constituency
or the rclevimt part thereof or a certified copy of the
relevant cntrv of such roll shall. unless it is filed along
with the n01i1ination
paper, be produced hoforc tl1e
returnin2 officer at the time of the scrutiny. It is thus
clear that when the sta~e of scrutiny is reached the
(t) [19l9[ S.C.R. 14m.
G
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HARCHARAN SINGH v. MOHINDER SINGH (Shah, J.)
201
returning oJlicer has to be satisfied that the candidate is
an elector of a different constituency and for that purpose
the statute has provided the mode of proof.
Section
36, sub-s. ( 7) lays down that the certified copies which
are required to be produced under s. 33(5) shall be
conclusive evidence of the fact that the person referred
to in the relevant entry is an elector of that constituency.
In other words,
the scheme of the Act appears to be
that where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed and the production of the prescribed copy has
to be taken as conclusive evidence of the said fact."
The appellant concedes ·that with his nomination paper he did
not produce the electoral roll or a copy of the relevant part thereof
of the Gidderbha Constituency.
He, however, pleaded that at
the time of the scrutiny of the nomination papers he had produced
before the returning ollicer copies of the electoral roll. and had
requested that officer to keep the copies of the roll on !:is file
if he needed them, and the returning officer had said tha1 he did
not need the copies of the electoral roll. This case was not set
up by the appellant in his reply to the election petition.
The
returning officer Sher Singh Sindhu was summoned to
appear
before the High Court to produce certain documents ir. his custody.
Sher Singh Sindhu personally appeared in Court and tendered •the documents called for, but the appellant did not ask the
Trial Judge to administer him oath and to examine him
as
a
witness.
There is no written record about the production of the
electoral roll before the returning officer.
In the order passer! by
!he returning officer dated January 21, 1967, the returning officer
has referred to the production of a certificate, but not to the production of the electoral roll.
We therefore agree with the High
Court that the case set up by the appellant that he had produced
copies of the electoral roll or relevant parts thereof before the
returning officer at the time of the scrutiny of nomination papers
cannot be accepted as true.
The appellant contends· that he had produced with the nC1mination paper a certified extract from the electoral list of the
Gidderbha Constituency supplied to him by the Tahsildar of
Muktsar. who also held the office of Electoral Registration Officer,
and the requirements of s. 33(5) were satisfied. Wit!J his nomination paper the appellant had produced an Ext. P.W. 1/4 to the
following effect :
"Certified that the names of Harcharan Singh s_/o
Teja Singh and Gurdial Singh s/o Harcharan Sin)!h are
there on the voters list of V. Badian H. B. No. 24, Tehsil
Muktsar, in the voters' list of Lambi Constituency; for
the year l 965.
· 10 Sup CJ/68-14
202
SUPREME COURT REPORTS
[1969] I SCR.
s. ;\'o.
l.
1\'anu• of the niter
ltircharan Singh sio T1.:j;t Singh
Gurdial Singh sfo Harcharan Singh
Sd. lllcgihk
19.J.67"
Vo1c No.
Jt\25
1827
The circumstances in which this document was obtained may first
be set out.
On January 18, 1967, the appellant submitled an
application before the Sub-Divisional Magistrate, Muktsar, to the
following effect :
''The applicant begs to submit as under :
It is submitted that [ want 1o contest for Punjab
Assembly scat from Zira Constituency.
My name is
entered as a voter in the voters' list of village Badian.
I have received a voters' list from the Panchayat of the
vi!lacc and another list from the candidate of Giddcrbha -circle.
One list of vo1ers
is
(part)
20
and
in
the other
(part)
31
is
writlcn in red ink.
Both of them rclaic to year 1966. Kindly certify after
verification from the election qanungo, whether there is
also another voters list for the year 1966. If there is
one, what is my voter Ko. therein.
My son Gurdial Singh, is my covering candidate.
Kindly verify Voters Nos. of both (of us)."
On this application it was recorded by the Sub-Divisional Magistrate on January 19, 1967-"Allowed certified
copy today".
On the reverse of the application is recorded a certificate of the
Tahsildar, Muktsar, which is marked P.W. 1/4. The entries in
the voters' list relating to the appellant may be set out :
A
B
c
D
E
Voters' list of Gidderbha Assembly Constituency
F
-Village Badian (Continued).
t825
211
Harcharan Singh
Tcja Singh
Below lhis entry and at the cr.d of the paec of the cil'cl(lr;.l roll. 1b1!- note
G
appears
--- --------------
Serial
No.
House
No.
Nan1c of the voter
Fathcr's/Malc/A!!C
~101hcr's/Fcmak/
Hus.band's narr,c.
The entries in P.W. 1/4 do not ~ally in all respects
with
the
entries in the voters· list. P.W. l/4 purports to be an abstract
from the voters' list of Lambi Constituency whereas the voters' list
in ,~hich the name of the appellant is entered is of the Gidderbha
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HARCHARAN SINGH V. MOHINDER SINGH (Shah, /.)
203
Circle. · But it appears that in transcribing the name of constituency a clerical mistake was made.
The electoral roll it appears
was prepared in 1965, and since then the original Lambi general
constituency was named Gidderbha constituency as a result of
delimitation of constituencies.
But in Ext. P.W. 1/4 the house
number and the age of the voter which are found in the vot~rs'
list are not set out There can be no doubt that the copy supplied
is defective and it does not comply with the requirements of
s. 33(5). Under s. 36(2)(b) the returning officer has to hold
a summary inquiry on objections raised, or on his own motion,
whether constitutional requirements are prescribed in cl. (a) or
the statutory requirements in cl. (b) have been fulfilled.
~o
objection to the nomination paper was raised before the returmng
officer.
Apparently, the returning officer held so;ne inquiry and
recorded the following order :
"I have examined the nomination paper in accordance with section 36 of the Representation of the People Act, 1951, and decide as follows :-
'
'Particulars correct. The candidate's age is
not shown in the certificate.
But the candidate
is an old man and is certainly above the age of
25 years and as such he is fully qualified. No
objection is raised. Fee deposited. Oath taken.
Valid.
Accepted.' "
By s. 3 6 ( 4) the returning officer is enjoined not to reject any
nomination paper on the ground of any defect which is not of a
substantial character.
Exhibit P.W. 1/ 4 which accompanied the
nomination paper was defective in two respects, but it still remains
to be determined whether the defects were of a substantial character.
The appellant had produced a document which certified
his roll number, his name, his father's name, his village, H.B.
number of Tahsil Muktsar, but did not certify his house number
and his age.
On the application submitted by the appellant the
returning officer had asked the Tahsildar to make a report.
Niranjan Singh who was the Sub-Divisional Officer Muktsar, and
also the Electoral Registration Officer of Gidderbha Assembly
Constituency at the relevant time deposed that the application
Ext. R. W. 1I5 was presented before him and that he had ordered
that 1he application be referred for disposal to the Tahsildar who
held the office of the Assistant Electoral Registration Officer. Jn
cross-examination the witness stated that he had "desired the
Tahsildar to supply a certified copy of the electoral roll" and that
he had never asked him to submit a report like the one endorsed
on the reverse of the application.
But the Tahsildar purported
to make a report and the application with that report was delivered
to the appellant in pursuance of his application.
We see no
reason to disbelieve the statement of Niranjan Singh.
The ans-
20-1
[ 1969] I S.C.R.
"er referred ·lo earlier is elicited in cross-examination by counsel
for the respondent, and no reason has been suggested as to why
the witness should bear Lihc testimony.
The recitab in the application filed by the appellant arc somewhat obscure.
It was written in Punjabi and the oflieial tramlation and the trJnsbtion made
by the learned Judge in the High Court did ncrt wholly tally. The
order passed by the Electoral Registration Officer which he has
deposed to is not amongst the papers.
But at the font of ihe
application it is recorded that a ccrtifkd copy was allowed on
January 19, I 967.
If the story of the
Flcc1ornl
Re~istration
Officer is 10 be believed. he had directed thJt a certified copy of
the electoral roll be :·urnished and by some mischance the Tahsildar made a report in which !here was first a clerical mistake will:
regard to the name o;· the Constituency. and :igain the· two entries
relating to the house numb~:· and 1he age of the appdlunt wer~
omitted.
Exhibit P.W. l /4 was filed with the nomination papers
and the returning ofiiccr was apparently satisfied that ·ihe requisite details were dulv furnished.
Exhibit P.W. J /4
was
also
before the returning "o!llccr at the time of the
scru·tiny
of the
nomination papers. The contesting candidate and his agents wer~
present and no objection was raised to the v:1lidi1y or the sufliciency of the document produced with the nomination paper in
purported compliance with s. 33 ( 5).
The returning
officer.
however. thought it necessary 10 make an inquiry as to the age
of the appellant and recorded that he was satisfied that the appellant was above the age of twenty-five.
Absence of 1hc number
of the house in which the appell:tnt lived from the copy produced
docs not appear to have been regarded as of any consequence.
It WJS not suggested in the H'gh Court. nor i~ it suggested before
llS that the appellant was not competent 10 stand as--a candidate
for the Zira Constituency either on account of any disqualification
or on the Qround that he was not an elector of any constituencv:
it is only u-rl!ed that Ex. P.W. I /4 was not a certified copy of Ilic
relevant entries in the electoral roll.
A
B
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The statutory requirements of election law must be strictly
ob~crYed. !'\n election dispute is ;1 ..;tatutory proceeding unkno\\'J~
to the co111n1on hl\v: it is not an ~ct ion at la\\· or in equity.
/\..:.
a copy of the relevant entries from the electoral roll rclatin~ to
the appe113nt ii was indisputably defective.
But under s. '6( 4 l
G
the returning officer is entitled to accept the nomination paper
even if it be, defective. if the defect is not of a substantial character : indeed he is enjoined not to reject the nomination paper
unless 1hc defect is of a substantial character.
The details
for
identifying: the appellant <is an elector were duly fur_nishcd.
1-fo
:ige was mentioned in the nomination paper. thou~h n wa' not to
JI
he found in the certified copy produced by the appellant.
No
objection was raised to the acceptance of the nomination paper
on behalf of the contesting candidate and his agents present at
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HARCHARAN SINGH I',· MOHINDER SINGH (Shah, J.)
205
the scrutiny.
The returning officer satisfied himself by personal
inquiry that the appellant was above the age of twenty-five and
therefore competent to stand for election.
It is true that he did
not apply his mind ·to the absence of house number entered in the
electoral register.
But he did not come to the conclusion that
even though the copy produced was defective the defect was of a
substantial character.
The decision of the returning officer in the
matter is not final and in appropriate cases it is open to the Court
to reach a different conclusion in an election petition.
But on a
careful review of •the proceedings of the Returning Officer we are
of the opinion tha1 the returning officer did not err in not rejecting
the nomination paper; the defects in Ext. P.W. 1/4 were not of a
substantial character.
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 wi!l not ordinarily minimise their operation. If there was any reason to think that the
appellant was negligent, or that on account of defects which were
found in the copy produced by the appellant the purity of the
election process was likely to be affected, we would have been
loath to disagree with the High Court.
But in this
case the
appellant moved the Electoral Registration Officer for a
copy
certifying the correctness of the entries in the list which had been
supplied to him, and the Electoral Registration Officer supplied
to him a copy which though defective, did include sufficient particulars for identifying the appellant.
No objection was
raised
before the returning officer and that officer after holding an inquiry
was apparently of the view that there was no defect which could
be regarded as of a substantial character. We do not think that
any ground is made out for disagreeing wi•th the view of the
returning officer.
I
~
The order passed by the High Court is set aside and the petition filed by the first respondent S. Mohinder Singh stands rejected.
The appeal is allowed : there will be no order as to costs
throughout.
Y.P.
A ppea/ allowed_