# HARi VISHNU KAMAm v. GOPAL SWARUP PATHAK

- **Citation:** [1970] 3 S.C.R. 334
- **Court:** Supreme Court of India
- **Decided:** 1969-12-18
- **Case number:** Election Petition No. 6 of 1969
- **Bench:** S. M: Sikri, J. M. Shelat, V. Bhargava, G. K. Mitter, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hari-vishnu-kamam-v-gopal-swarup-pathak-4994
- **Pages:** 9

## Headnote

Presidentic.l and Vice-Presidential Elections Rules} 1962 framed under
s. 21 of Presidential and Vice-Presidential Elections Act (31 of 1952)-
Rule 4(1) requiring no1nination papers to be presented personal/sv by
candidate or proposer or secoltder-No1nination paper sent
by
post
1rhether properly presented-Whether ''receivetf' within the meaning of
r. 4(2)-Returning Officer whether can reject such nomination paper before date of scrutiny-Rule 4(1) whether rntmdatory or direcrory.
At the election for the office of Vice-President held in 1969 the nomination paper of one 'S' was •ent by post. The Returning Officer rejected
it forthwith on the ground that it did not comply with the requirements
of r. 4(1) of the Presidential and Vice-Presidential Rules, 1952 inasmuch
as it. had not been presented by the candidate or his proposer or seconder,
in person. The said nomination paper was not put up for scrutiny_under
r. 6. The respondent won the election. The petitioner who was cine of
the losing candidates filed an election petition under Art. 71 of the Con·
stitution and s. 14 of the Presidential and Vice-Presidential Elections Ai:t.
195~ and prayed that the election of the respondent be declared void
undc'r s. 18 of the Act.
The questions that fell for consideration were :
( i) whether the nomination of S had been wrongly rejected on the ground
given; (ii) whether the Returning Officer had power to reject the nomination before the date of scrutiny: (iii) whcthe'r r. 4(1) was directory
or mandatory.
HELD: (il Rule 4( I) provides only one method of presentation i.e,
delivery either in person by the candidate or by his proposer or seconder.
Further it mentions the time within which the nomination pape'.r can be
delve red i.e.· between the hours of eleven in the forenoon and three in the
afternoon. Therefore. if the nomination paper is not presented in person
either by the candidutc or by the proposer o'.r seconder it cannot be deemed to have been presented at all.
There is good reason for making this
rule because otherwise not only the authenticity of the person sending the
nomination paper but also the time of deHvery of the nomination paper
would be in doubt.
Since the rule provides only one method of pi'esent·ation that method n1ust be followed.
The provisions of rr. 4(2), 5 and
6 support the above conclusion.
The nomination paper of 'S' could be rejected on the ground that it
had not been presented in person and. received before 3 O'clock in the
afternoon on the last date appointed under cl. (a) of sub-<'. (1) of r. 4.
Such a nomination paper could not be treated to have been 'received"
\liithin the meaning of sub·r. (2) or r. 4 and the Retu:rning Officer wa.;;
entitled to reject it. [340 F-341 C. HJ
{ii) There was no force, in the submission that the Returning Officer
should have waited till the date of the scrutiny. As soon as the Retrun·
ing Otlice'r finds that a nominat!on paper h":" not b.een duly presented ~nd
receiv-:d he must reject it outright at the time 1t 1s handed over to him.
[HI A-342 Al
A
B
c
D
E
F
G
H
A
H. V. KAMATH V, G. S. PATHAK (Sikri, J.)
335
(iii) Rule 4(1) is mandatory. To hold otherwise would lead to utteF
confusion and delay in the completion of the election.
The Returning
Officer would not know who and where to inform about the date of
scrutiny, he would not be certain whether it is genuine, and would have
to take evidence as to whether it is a genuine nomination paper
dr a
forged paper. [342 BJ
B
ORIGINAL JURISDICTION : Election Petition No. 6 of 1969.
c
D
E
F
G
H
Petition under Art. 71 of the Constitution of India and S. 14
of the Presidential and Vice-Presidential Election Act (Act XXXI
of 1952).
·
Sarjoo Prasad, P. Parameswara Rao and K. C. Dua, for thepetitioner.
M. C. Seta/vad, N. A. Palkhiva/a, M. C. Chag/a, J. B. Dadachanji, Ravinder Narain and 0. C. Mathur, for the respondent.
Jagdish Swarup, Solicitor-Genera/, L. M. Singhvi and S. P'.
Nayar, for the Election Commission and Union of India.

## Text

334
HARi VISHNU KAMAm
v.
GOPAL SWARUP PATHAK
December 18, 1969
(S. M: SIKRI, J. M. SHELAT, V. BHARGAVA, G. K. MITTER AND
C. A. VAIDIALINGAM, JJ.J
Presidentic.l and Vice-Presidential Elections Rules} 1962 framed under
s. 21 of Presidential and Vice-Presidential Elections Act (31 of 1952)-
Rule 4(1) requiring no1nination papers to be presented personal/sv by
candidate or proposer or secoltder-No1nination paper sent
by
post
1rhether properly presented-Whether ''receivetf' within the meaning of
r. 4(2)-Returning Officer whether can reject such nomination paper before date of scrutiny-Rule 4(1) whether rntmdatory or direcrory.
At the election for the office of Vice-President held in 1969 the nomination paper of one 'S' was •ent by post. The Returning Officer rejected
it forthwith on the ground that it did not comply with the requirements
of r. 4(1) of the Presidential and Vice-Presidential Rules, 1952 inasmuch
as it. had not been presented by the candidate or his proposer or seconder,
in person. The said nomination paper was not put up for scrutiny_under
r. 6. The respondent won the election. The petitioner who was cine of
the losing candidates filed an election petition under Art. 71 of the Con·
stitution and s. 14 of the Presidential and Vice-Presidential Elections Ai:t.
195~ and prayed that the election of the respondent be declared void
undc'r s. 18 of the Act.
The questions that fell for consideration were :
( i) whether the nomination of S had been wrongly rejected on the ground
given; (ii) whether the Returning Officer had power to reject the nomination before the date of scrutiny: (iii) whcthe'r r. 4(1) was directory
or mandatory.
HELD: (il Rule 4( I) provides only one method of presentation i.e,
delivery either in person by the candidate or by his proposer or seconder.
Further it mentions the time within which the nomination pape'.r can be
delve red i.e.· between the hours of eleven in the forenoon and three in the
afternoon. Therefore. if the nomination paper is not presented in person
either by the candidutc or by the proposer o'.r seconder it cannot be deemed to have been presented at all.
There is good reason for making this
rule because otherwise not only the authenticity of the person sending the
nomination paper but also the time of deHvery of the nomination paper
would be in doubt.
Since the rule provides only one method of pi'esent·ation that method n1ust be followed.
The provisions of rr. 4(2), 5 and
6 support the above conclusion.
The nomination paper of 'S' could be rejected on the ground that it
had not been presented in person and. received before 3 O'clock in the
afternoon on the last date appointed under cl. (a) of sub-<'. (1) of r. 4.
Such a nomination paper could not be treated to have been 'received"
\liithin the meaning of sub·r. (2) or r. 4 and the Retu:rning Officer wa.;;
entitled to reject it. [340 F-341 C. HJ
{ii) There was no force, in the submission that the Returning Officer
should have waited till the date of the scrutiny. As soon as the Retrun·
ing Otlice'r finds that a nominat!on paper h":" not b.een duly presented ~nd
receiv-:d he must reject it outright at the time 1t 1s handed over to him.
[HI A-342 Al
A
B
c
D
E
F
G
H
A
H. V. KAMATH V, G. S. PATHAK (Sikri, J.)
335
(iii) Rule 4(1) is mandatory. To hold otherwise would lead to utteF
confusion and delay in the completion of the election.
The Returning
Officer would not know who and where to inform about the date of
scrutiny, he would not be certain whether it is genuine, and would have
to take evidence as to whether it is a genuine nomination paper
dr a
forged paper. [342 BJ
B
ORIGINAL JURISDICTION : Election Petition No. 6 of 1969.
c
D
E
F
G
H
Petition under Art. 71 of the Constitution of India and S. 14
of the Presidential and Vice-Presidential Election Act (Act XXXI
of 1952).
·
Sarjoo Prasad, P. Parameswara Rao and K. C. Dua, for thepetitioner.
M. C. Seta/vad, N. A. Palkhiva/a, M. C. Chag/a, J. B. Dadachanji, Ravinder Narain and 0. C. Mathur, for the respondent.
Jagdish Swarup, Solicitor-Genera/, L. M. Singhvi and S. P'.
Nayar, for the Election Commission and Union of India.
The Judgment of the Court was delivered by
Sikri, J. This is a petition under Art. 71 of the Constitution
and s. 14 of the Presidential & Vice-Presidential Elections Act
(XXXI of 1952)-hereinafter referred to as the Act-praying
for a declaration that the election of Shri Gopal Swarup Pathak,
respondent, to the office of the Vice-President of India is void.
The main ground on which this declaration is sought is that
the nomination paper of Dr. Ram Sharan Dass Sakhuja was
wrongly rejected by the Returning Officer on August 6, 1969.
The respondent apart from meeimg this ground has raised a
number of other issues including the issue whether the nomination.
paper of Dr. Ram Sharan Dass Sakhuja was genuine, and if not.
whether the petition is maintainable. The learned counsel for
the respondent strongly pressed on us that we should first try this
issqe suggested by him but as we have come to the conclusion
that the petition must fail on the ground that the nomination
paper of Dr. Ram Sharan Dass Sakhuja was rightly 'rejected on·
August 6, 1969, it is not necessary to consider the other issues
that arise out of the pleadings of the parties.
The two issues suggested by the petitioner which we proposeto discuss are :
t. Whether the nomination of Dr. Ram Sharan Dass
· Sakhuja has been wrongly rejected on the ground
that the nomination paper was· not delivered in
person;
336
SUPREME COURT REPORTS
[l 970] 3 s.c.R.
2. Whether the Returning Officer had power' to reject
-the nomination even before the date of scrutiny.
The relevant facts for determining these issues may now be
A
·'ct out.
On J 9th or 20th July, J 969, the office of the VicePresident of India fell vacant on the resignation of the then incumb.~nt, Shri V. V. Giri. The Election Commission appointed
B
Shri B. N. Banerjee, Secretary, Rajya Sabha, as Returning Officer
for the election 'of the Vice-President of India.
The Election
Commission issued a notification under s. 4 appointing August 9.
1969, as the last date for filing nomination for election to the
office of che Vice-President of India and August 11, 1969, for
scrutiny of nomination papers.
A number of candidates filed c
nomination papers and on August I I, I 969, the Returning Officer made a record of proceedings. The relevant part of the proceedings reads as follows :
"I held the scrutiny of nomination papers for the
Vice-Presidential Election today, the 11th
August,
1969, at 11 A.M. in my office (Room No. 29) in ParliaD
ment House, New Delhi, 24 nomination papers were
delivered to me within the time and in the manner laid
down in rule 4 of the Presidential and Vice-Presidential
Election Rules. 1952. These nomination papers related
to:-
1. Shri S. Nagappa
(One nomination paper)
2. Shri G. S. Pathak
(Seventeen nomination papers)
.1. Shri Sivashanmugam
(Two nomination papers)
(Jagannathan Pillai)
4. Smt. Manohara Nirnwla
(One nomination paper)
Holkar
5. Shri B. ~. Mahaseth
(One nomination paper)
6. Shri Hari Vishnu Karnath
(Two nomination papers)
E
F
3. I gave the candidates and the others present all
G
facilities for examining the nomination papers of all
the candidat.t:s delivered to me.
The nomination paper
were examined by them.
No objection was raised to
any nomination papers by any candidate or his representative.
I scrutinised all the nomination papers and
I found that they satisfied the requirements of a valid
H
nomination paper.
I accordingly accepted ail the nomination papers as valid and ma'de endorsements on all
the 24 nomination papers accepting them.
A
B
c
D
-
E
F
G
H
H. V. KAMATH V, G. S. PATHAK (Sikri, J.)
337
4. I also brought to the notice of those present
that I had received some nominution papers, and some
other papets _puiporting to be nomination papers, by
post, and that I. could not treat them as valid nomination papers as they were not delivered to me in accordance with sub-rule ( 1) of rule 4 of tbe Presidential and
Vice-Presidential Election Rules, 1952, and that they
also did not comply with the provisions of law in other
respects.
I furtlier mentioned to those present that
there were in addition three other papers \vhich, though
presented to me in person, did not comply with the
requirements of the law as they were not accompanied
by the certified extracts from the electoral roll and
suffered from other defects. l had not given any serial
number to any of these papers and had rejected all of
them."
One of the nominations referred to in para 4 of tne proceed--
ings was that of Dr. Ram Sharan Dass Shakuja. It appears that
the nomination papers of Dr. Shakuja, alleged to .be complete in
every respect, were not delivered in person either by Dr. Shakuja
or by the proposer or seconder in person to the Returning Officer·
but were received by him by post on August 6, 1969. On that
very day the Returning Officer Uid not treat the papers as valid
as they were not delivered to him in aet•ordance with sub-r. ( 1)
of r. 4 of the Presidential arid Vice-Presidential Elections Rules,
1952.
In order to discuss the issues mentioned above it is necessary
to set out the relevant statutory provisions.
Under s. 4 of the
Act the Election Commission by notification appoints for ever}
election (a) the last date for making nominations, (b) the date
for scrutiny of nominations, (c) the last date for the withdrawal
of candidatllres, and ( d) the date on which poll shall, if necessary, be taken.
lJnder s. 5 any person may be nominated· as a
candidate for election to the office of Vice-President if he is qualified to be elected to that office vnder the Constitution.
Subsection ( 2) of s. 5 prescribes that each candidate shall be nominated by a nomination paper completed in the prescribed form
and subscribed by the candidate himself as assenting to the nomination and by two electors as proposer and seconder.
We may assume for the purpose of this case that !he conditions laid down ins. 5(2) were complied with.
Section 6 deals witl1 the withdrawal of candidature and provides that any candidate may withdraw his candidature by a
notice in writing in the prescribed form subscribed by him and
delivered before three o'clock in the afternoon on the date fixed
338
SUPREME COURT REPORTS
[l 970] 3 S.C.R.
under clause ( c) of sub-section ( 1) of section 4, to the Returning Officer either by such candidate in person or by his proposer
or seconder who has been authorised in this behalf in writing by
such candidate.
The learned counsel for the petitioner rightly conceded that if
.a candidate wants to withdraw his candidature the notice in writing must be delivered to the Returning Oflicer in person by such
candidate or by his proposer or seconder who has been authorised.
In other words no candidate can withdraw by sending a notice in
writing by post.
Section 18 gives the grounds for declaring the election of a
.returned candidate to be void.
One of the grounds is :
"If the Supreme Court is of opinion that the nomination of any candidate has been wrongly rejected or
the nomination of the successful candidate or of any
other candidate who has not withdrawn his candidature
has been wrongly accepted, the Supreme Court shall
declare the election of the returned candidate to be
void."
Section 21 gives powers to the Central Government to make rules
and the two matters, among others, on which rules can be made
are:
"(d)' the form and manner in which nominations
may be made and the procedure to be followed in res·
pect of the presentation of nomination papers;
( e) the scrutiny of nominations and, in particular,
the manner in which such scrutiny shall be conducted
and the conditions and circumstances under which any
person may be present or may enter objections there at."
In pursuance of these powers rules were· framed.
Rule 4 deals
with the presentation of nomination papers and is in the following
terms:
"4. ( l) On or before the date appointed under
clause (a) of sub-section (l) of section 4, each candidate shall, either in person or by his proposer or
seconder, between the hours of eleven in the forenoon
and three in the afternoon, deliver to the Returning Ofli-
·cer at the place specified in this behalf in the public
notice a: nomination paper completed in Form 2 in the
case of a Presidential election, and in Form 3 in the case
of a Vice-Presidential election, together with a certified
copy of the entry relating to the candidate in the electoral roll for the Parliamt:ntary constituency in which
. he is registered.
A
B
c
D
'
E
F
G
H
B
c
D
E
F
G
H
H. V, KAMATH V, G. S, PATHAK (Sikri, J.)
339
(2) Any. nomination paper which is not received
before three o'clock in the aftemoon on the last date
appointed under clause (a) ofsub-section (1) of section 4 or to which the certified copy referred to in subrule ( l) of this rule is not attached shall be rejected."
Rule 5 prescribes the procedure on re•;eipt of nomination papers
as follows :
"5. On the presentation of a. nmiiination paper, the
Returning Officer shall-
( a) sign thereon a certificate stating the date and time
of presentation of the nomination paper and enter
thereon its serial number;
(b) inform the person or persons presenting the nomination paper of the date, time and place fixed for
the scrutiny of nominations; and
( c) cause to be affixed in smne conspicuous place in
his office a copy of the nomination paper as ce11ified and numbered under clause (a) of this rule."
Rule 6 provides for the scrutiny of nominations and is in the
following terms :
"6. ( 1 ) The candidates, one proposer and one
seconder of each candidate, and one other person duly
authorised in writing by such candidate, shall be entitled
to be present at the time of scrutiny of nominations:
and the Returning Officer shall give them all reasonable facilities fo~ examining the nomination papers of
all candidates which have been delievered within the
time and in the ,manner laid down in rule 4.
(2) The Returning Officer shall then examine the
· nomination papers and decide ~II objections "hich may
be made to any of them.
(3) The Returning Officer may, either on such
objection or on his own motion, and after such summary
inquiry, if any, as he thinks necessary, reject a nomination paper on any of the following grounds. namely :
(a) that the candidate is not eligible for election as
President or Vice-President. as the case may be, under
the Constitution; or
(b) that the proposer or seconder is not qualified
to subscribe a nomination paper under sub-section (2)
of section 5; or
SUPREME COURT REPORTS
( 1970] 3 S.C.R.
( c) that the signature of the candidate, proposer or.
seconder is not genuine or ha' been obtained by fraud;
or
(d) that the nomination paper has not been duly
completed and the defect or irregularity is of a substantial character; or
( e) that the proposer or seconder has subscribed,
\vhethcr as proposer or seconder, another no1nination
paper received earlier by the Returning Officer at the
same election.
( 4) The Returning OHker shall hold the scrutiny
on the date appointed in this behalf under clause (b)
of sub-section ( I ) of section 4 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 made, the
candidate concerned shall, if he so requires, 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 on which
the proceedings have been adjourned.
( 5) The Returning Officer shall endorse on each,
nomination paper his decision either accepting or rejecting it and if the nomination paper is re,iected, he shall
record in writing a brief statement of his reasons for
rejecting it."
The question whether a candidate is entitled to send his nomination papers by post to the Returning Officer may now be con-
'idercd.
It will he noticed that r. 4 provides oniy one manner
of presentation, i.e., delivery either in person by the candid~te or
hy his proposer or seconder.
Further it mentions the time within
which it can be delivered, i.e., between the hours of eleven in the
forenoon and three in the afternoon.
It seems to us that ir the
nomina1ion papa b not presented in person either by the candidate or by the proposer or the seconder it cannot be deemed to
have been presented at all.
There seems to be good reason for
making this rule because otherwise not only the authenticity of·
the pc.rson sending the nomination paper will be in doubt hut
abo the time of the delivery of the nomination paper would be in
doubt.
Be that as it may. if the rul~ provides one method of oresen.-
tation that method of presentatmn must be followed.
That this
A
c
D
L
G
H
A
B
c
D
E
F
G
H
H, V. KAMATH V; G. S. PATHAK (Sikri, J.)
341
is the only method of presentation of nomination papers is borne
out by subsequent provisions. Sub-rule (2) of r. 4 provides that
any nomination paper which is not received before 3 o'clock in
the afternoon on the last date appointed under cl. (a) of sub-s.
( 1) of s. 4 shall be rejected. This shows that even if a nomination paper is presented pers0nally but after 3 o'clock in the afternoon it has to be rejected. The rule proceeds on the basis that
the presentation must have been either in person or by the proposer or the seconder. II a nomination paper is received by post
it would be difficult to say that it has been presented and received
before 3 o'clock on the last date appointed under cl. (a) of
sub-s. ( 1) of s. 4.
Rule 5 also proceeds on the basis that the presentation of a
nomination paper must be in person because it requires the Returning Officer to sign thereon a certificate stating the date and
time of presentation of the nomination paper and inform the
person or persons presenting ti\e nomination paper of the date,
time and place fixed for the scrutiny of nominations. It is clear
that r. 5 contemplates only one method of presentation. This is
again evident froln r. 6 wbich directs the Returning Officer inter
alia to give the candidates and other authorised persons present
reasonable facilities for examining the nomination papers of all
candidates which have been delivered within the time and in the
manner laid down in r. 4. In other words, the nomination papers
which have not been delivered within time and in the manner
laid down in r. 4 have not !to be shown for purposes of scrutiny.
The learned counsel for the petitioner contends that sub-r.
(2) of r. 4 gives two grounds of rejection, one that the nomination paper is not received before 3 o'clock in the afternoon of the
last date appointed under cl. (a) of sub-s. ( 1) of s. 4, and the
second that the certified copy referred to iin sub-r. (1) of r. 4
is not attached. He further says that r. 6 gives five more grounds
of rejection.
He says that the ground on which the nomination
paper of Dr. Ram Sharan Dass Shakuja has been rejected is not
covered by either sub.-r. (2) of r. 4 or r. 6 and accordingly the
nomination paper of Dr. Ram Sharan Dass Shakuja could not
have been validly rejected.
It seems to us that this nomination paper could be rejected on
the ground that it has not been presented in person and received
before 3 o'clock in the afternoon on the last date appointed under
cl. (a) of sub-r. (I) of r. 4.
Such a nomination paper could
not be treated to have been received within the meaning of sub-r.
(2) of r. 4 and the Returning Officer was entitled to reject it.
There is no force in the second submission that at any rate the
Returning Officer should have waited till the date of the scrutiny
L7Sup.(Cl)/70-7
342
SUPREME COURT REPORTS
[ 1970]3 S.C.R.
because as soon as he finds that a nomination paper has not been
duly presented and received he must reject it outright at the time
it is handed over to him.
The learned counsel contends that even if there has been a
breach of r. 4 ( 1), the rule is not mandatory and the breach of
it should not be deemed fatal.
We are unab.l~ to agree with this
submission.
As we have mentioned before, the rules contemplate only one method of presentation and if that method is not
followed the nomination papers cannot be held to be validly presented and must be rejected outright. To hold otherwise would
lead to utter confusion and delay in the completion of the election.
The Returning Officer would not know who and where to inform
about the date of scrutiny; he would not be ce_rtain whether it is
genuine, and would have to take evidence as to whether it is a
genuine nomination paper or a forged paper.
Jn the result the petition fails and is dismissed with costs.
The petitioner will pay to the respol)dent Rs. 500 as total amount
of costs.
G.C.
Petition dismissed.
B
c
~.