# K. RajenJra Cltaudlturi and P. C. Kapur, for the v. B. Patel and H. s. Parihar, for the

- **Citation:** [1974] 3 S.C.R. 453
- **Court:** Supreme Court of India
- **Decided:** 1972-02-09
- **Case number:** Civil Appeal No. 297 of 1973
- **Bench:** )If, BltAGWA'U''.tND ], · K: ~AllU
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-rajenjra-cltaudlturi-and-p-c-kapur-for-the-v-b-patel-and-h-s-parihar-for-the-6080
- **Pages:** 7

## Headnote

Revm<11t•lion <Jf. lhe P'ople Act, 1951-s .. 33(5) ~1id 36(4)..,..ScoPe v/.
Tho appellallt challenged the electl.\Ofl of the -resPondot)I: t~ tbe Stole J\.ssem·
bly.
He_ alleged ;that at the. tiip.o .. of. ttie. s~rut_inv of nom1nat100. P8L?~I'$ th_e
retitrnin"a. otfi~r _improperly re~ct¢ _the ~om1~ation, pape_r ... of Oll;e of the tand1dates-: for the'· election. The name of the r_e1ected can41date _was found, not
on the electoral 'ri>Us of the constituency in which he hat! filed hiS non1ill3.tirin
l)Opers, but ·on· the· rolls ·or- anotPer: constituency .. Since his _name was •not
corrtct1y printed-on the el(:ctoral rolls;·_. he_ had obtained :a co~gend,um to_.the
electoral roll, a certified copy Of whic_h was . enclose.d with the nomin,ation P~~r.
Objection having been raised b:Y the respondent, his nomina.tion P~.r . Was
rejected on the ground that the provisions of s. 33(5) of the Repre'Sentation
of People Act were not complied with inasmuch as he had not produced the
certified conv of all the relevant entries in the electoral roll at the time of
scrutiny of ihe nomination papers.
Section 33(5) of the Representation of the People Act providCS 'that where
the candidate is an elector to 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 of such roll shall, unless it has been filed .alon.'t with
the nomination paper, be produced before the returning officer at the time of
!itnitiny;
The High Court dismissed the election petition of the appellant.
Dismissing the appeal to this Court,
HELD: Non-compliance withs. 33(5) is a defect of a_sU~tantial c_haractcr
aua is not covered by s. 36(4) of the Act. The Returning Officer rightly
rejected the nomination paper and rejection cannot be held . to be impiope-r.
Evidently the rejected candidate is an elector be a different constituency. Tb.a1
being the position he could have complied witft .. s .. 33-(S) by follo~ing one .or
the other of the three modes provided in· that sub~sectlon namely : ( 1) he could
have produced a copy of the electoral roll of constituency in which his name
ao_oeared, or (2) he could have produced a copy of the relevant part · of the
electoral roll of that constituency in which his name appears or ( 3) he could
have prodUced a certified copy of the relevant: . entries in the electoral ·rotl
Qf that constituency. He however selected the third mode by. enclosing a
certified copy of the corrigendum to the electoral roll. [457 O.:-F; 459 C-D]
It is clear that the· corrigendum did not furnish all the· particulars which.
would be available if a certified copy of the relevant .entries in the original
electoral roll as well as the corrigendum were produced before the Returning
Ofticer at the time of scrutiny. Since the original electoral roll may be
corrected and amended it was. absolutely necessary for the satisfaction Of the
Returning Officer that a certified copv of not only the original .electoral roli
containin.: the relevant entry as also a certified copy of the amendment list
conccrnin2 the candidate were produced at the time of scrutiny if this had
not already been filed along with the nomination paper. [457 F-G]
Sr; Baru Rani v. ~!Vin1atl Prasanni & Others, [1959] S.C.R. 1403/14, 1421
and Narbada Prasad v. Cli/UJga1i I.al mid Ors. [1659] I S.C.R. 499/502, followed.

## Text

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PARMAR HIMAlllNGH JUGATSD'IGH
~.
PATEL Jb\RMA)IBHAI NAll.SIBHM
February ii. 1974.
453
[P, )If, BltAGWA'U''.tND ],';· K: ~AllU, JJ;]
Revm<11t•lion <Jf. lhe P'ople Act, 1951-s .. 33(5) ~1id 36(4)..,..ScoPe v/.
Tho appellallt challenged the electl.\Ofl of the -resPondot)I: t~ tbe Stole J\.ssem·
bly.
He_ alleged ;that at the. tiip.o .. of. ttie. s~rut_inv of nom1nat100. P8L?~I'$ th_e
retitrnin"a. otfi~r _improperly re~ct¢ _the ~om1~ation, pape_r ... of Oll;e of the tand1dates-: for the'· election. The name of the r_e1ected can41date _was found, not
on the electoral 'ri>Us of the constituency in which he hat! filed hiS non1ill3.tirin
l)Opers, but ·on· the· rolls ·or- anotPer: constituency .. Since his _name was •not
corrtct1y printed-on the el(:ctoral rolls;·_. he_ had obtained :a co~gend,um to_.the
electoral roll, a certified copy Of whic_h was . enclose.d with the nomin,ation P~~r.
Objection having been raised b:Y the respondent, his nomina.tion P~.r . Was
rejected on the ground that the provisions of s. 33(5) of the Repre'Sentation
of People Act were not complied with inasmuch as he had not produced the
certified conv of all the relevant entries in the electoral roll at the time of
scrutiny of ihe nomination papers.
Section 33(5) of the Representation of the People Act providCS 'that where
the candidate is an elector to 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 of such roll shall, unless it has been filed .alon.'t with
the nomination paper, be produced before the returning officer at the time of
!itnitiny;
The High Court dismissed the election petition of the appellant.
Dismissing the appeal to this Court,
HELD: Non-compliance withs. 33(5) is a defect of a_sU~tantial c_haractcr
aua is not covered by s. 36(4) of the Act. The Returning Officer rightly
rejected the nomination paper and rejection cannot be held . to be impiope-r.
Evidently the rejected candidate is an elector be a different constituency. Tb.a1
being the position he could have complied witft .. s .. 33-(S) by follo~ing one .or
the other of the three modes provided in· that sub~sectlon namely : ( 1) he could
have produced a copy of the electoral roll of constituency in which his name
ao_oeared, or (2) he could have produced a copy of the relevant part · of the
electoral roll of that constituency in which his name appears or ( 3) he could
have prodUced a certified copy of the relevant: . entries in the electoral ·rotl
Qf that constituency. He however selected the third mode by. enclosing a
certified copy of the corrigendum to the electoral roll. [457 O.:-F; 459 C-D]
It is clear that the· corrigendum did not furnish all the· particulars which.
would be available if a certified copy of the relevant .entries in the original
electoral roll as well as the corrigendum were produced before the Returning
Ofticer at the time of scrutiny. Since the original electoral roll may be
corrected and amended it was. absolutely necessary for the satisfaction Of the
Returning Officer that a certified copv of not only the original .electoral roli
containin.: the relevant entry as also a certified copy of the amendment list
conccrnin2 the candidate were produced at the time of scrutiny if this had
not already been filed along with the nomination paper. [457 F-G]
Sr; Baru Rani v. ~!Vin1atl Prasanni & Others, [1959] S.C.R. 1403/14, 1421
and Narbada Prasad v. Cli/UJga1i I.al mid Ors. [1659] I S.C.R. 499/502, followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 297 of 1973.
Appeal from the Judgment and order of the Gujar~t High Court
in Election Petition No. 7 of 1972.
454
SUPREME COURT REPORTS
( 1974 l 3 S.C.R.
K. RajenJra Cltaudlturi and P. C. Kapur, for the appellant.
V. B. Patel and H. s. Parihar, for the respondent,
The Judgment of the Court was deliverec! by
GoswAMI, J. This appeal under.section U6-A of the Representation
of the People Act, 1951 (briefly the Act) is directed against the
judgment of the High Court of Gujarat dismissing• the election petition
of the appellant who is an elector from Mahudha constituency for
the Guja;at State Legislative Assembly. The . appellant
challenged
the election of the respondent who had been <leclared duly elected
to the State Legislative Assembly from this particular constituency
in the general elections to the Legislative Assembly held in March
1972. The appellanfs principal ground of challenge was that at the
time of the scrutiny of the nomination papers on February 9, 1972,
the Returning Officer . improperly rejected the nomination paper of
one Christian Suleman Jiyabhai (hereina(ter to be described for brevity
as Jivabhai). Jivabhai was not an elector in the Mahudha co)lstituency
of the Legislative Assembly.
He was an elector from Shahpur constituency in Ahmedabad city.
Along with the
nomination
form
Jivabhai had enclosed a certified copy of the corrigendum to the
Electoral Roll issued by the Registration Officer, who was officer incharge of preparation of the Electoral Rolls.
On objection being
raised by the respondent the
nomination paper of
Jivabh~ was
rejected on the ground that the provisions of section 33(5) of the
Act were not ·complied with inasmuch as he had not produced
a
certified copy of all the relevant entries in the Electoral Roll before
the Returning Officer at the time of scrutiny of
the
nomination
papers.
What was produced was only the certified copy of the corrigendum issued by the Electoral Registration Officer which .showed
the correction in the name of Jivabhai.
Originally, Jivabhai was
shown in the Electoral Roll as Christian Soloman Jivabhai and by
the correction shown in the corrigendum, the name of "Soloman"
\Vas substituted b'y the name ~'Suleman". The correct name, therefore, stands as "Christian Suleman Jivabhai" as a result of the corrigendum.
It appears that the practice of the Electoral Registration
Officer is not to issue a corrected Electoral Roll ~very time some
entry in the Electoral Roll is amended or corrected but the officer
jssues corrigenda and amendment limits without making any alterations
in the original Electoral Roll. The High Court accepted the objection
with regard to the non-compliance of section 33(5) of the Act and
rejected the nomination paper of Jivabhai.
The appellant contends that the High Court committed. an error
of law in rejecting the nomination paper of Jivabhai in view of the
provisions of section 36( 4) of the Act.
Section 33
provides
for
presentation of nomination papers and requirements for a valid nomination. We are concerned in this appeal with sub-section (5) of that
section which may be quoted :
33 ( 5) "Where the candidate is an elector of a different
constituency. a copy of the electoral roll of that constituA
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PARMA~ Hl1'(ATS!NG I' .. PATEL HARMANBHAI (Goswami, J.)
455
ency or of the relevant part ·thereof or a certified copy of
the relevant entries in such roll s)lall, unless it has been
filed along with the nomination paper,- be. produced heforc
the ;returning officer at 'the time of ~rutlrry".
Section· 36 pr_ovides for scrutiny of nomillations and \vc mf!Y 'tfflofc
sub-section ( 4) of that section which is material.
36(4) 'The returning officer shall not reject any nomi·
nation paper on tho ground of any defect which is not of a
substantial character".
Jn the present case, Jivabhai, whose non1ination paper \Vas rejected, submitted along with his nomination paper only a certified
copy of the corrigendum of the particular entry in the Electoral Roll.
Since he was an elector of another constituency namely, Shahpur,
and was contesting in the Mahudha co0:stituency, he was required
under section 33 ( 5) to produce before the Returning Officer at the
time of scrutiny either a copy of the Ele<:toral Roll of Shahpur con·
stituency or of the relevant part thereof or a certified copy of the
relevant entries in the Electoral Roll of Shahpur constituency. In the instant case, Jivabhai preferred to enclose with his nomination paper
a certified copy of the corrigendum of the Electoral Roll correcting
his name therein. It appears that neither Jivabhai nor his proposer
was present at the time of scrutiny of the nomination papers and,
therefore, no other document was produced by him during scrutiny.
Even if he hall not earlier enclosed the relevant entries of the Electoral
"Roll, it would have been in order if the same were produced before
the Returning Officei: at the time of scrutiny. Section 36(7) provides
as follows :
36( 7) "For the purposes of this section, a certified copy
nf an entrv
in the electoral roll for the time, being
in
force of a constituency shall bi; conclusive evid-oncc of the
fact that lhe person referred to in that entry is an elector
for that constituency, unless it is proved that. he is subject
to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of -1950)".
The short question that arises for consideration in this appeul is
whether the nomination paper of Jivabhai was improperly rejected
by the Returning Officer. A certified copy, which was ·enclosed with
the nomination paper, was as follows :-
"List of voters Qf Shahpur ward. of Gujarat State Legblativc ·Assembly for the year 1971, District Ahmedabad,
456
SUPREME COURT REPORTS
[ 1974 I 3 S.C.R.
City Ahmedabad, Ward Shahpur-l, Part No. 38/84 continued.
l\Je1110r11n4um or List or -I
Scrili1 Number in
Name of Voter in
Present uncorrcctEntry to read as
Voters List
Votcn List.
ed. entry in the
corrected.
Voters List.
595
Christian Soloman Soloman
Suloman
Jivabhai
Ahmedabad
Sd/- G. B. Xhah,
28-1-1972.
Electroral Officer".
Before proceedin~ further it may be necessary to take note of
.certain rules in the Registration of Electors Rules, 1960 (briefly tre
Rules). Under rule 2(e) "'roll' means the electoral roll for a constituency".
Under rule 4 "the roll for each constituency shall be
;Prepared in such form and in such language or languages
as
the
Election Commission may direct".
Under rule 5 (I), "the roll shall
be divided into convenient parts which shall •be numbered consecutively". By rule 10 "as soon as the roll for a constituency is ready,
·the registration officer shall publish it in draft by making a copy
·thereof available for inspection and displaying a notice in Form 5"
in the places specified in that rule.
Rule 11 provides for
further
publicity to the roll and notice. Rule f2 provides for lodging claims
;and objections. Rule 22 may be set out in full :
22 "Final publication of roll-( I ) The regi;tration ofticer shall thereafter-
( a) prepare a list of amendments to carry out his decisions under rules .18,
20, 21 and
21A and correct
·any clerical or printing
error or other inaccurrancies
subsequently discovered iri the roll; and
(b) publish the roll, together with the list of amendments, by making a complete copy thereof available
for. inspection and displaying a notice in Form 16
at his office.
(2) On such publication, the roll together with the list
of amendments shall be the electoral roll of the constituency.
('3) Where the roll (hereafier in this sub-rule . referred
to. anhe basic roll), together with th.e .list of amend:
ments, beeomes the el~toral, roll. for a: cpnstltuency
undei .sub'.'ru)e (2), t!\e, Registration '\llliccr may, for
the 'CQ'nyeilienc~ of :a1! conc'erned; jntegr~te, ~ubjc~t
to 'any ·general· or 'speciat ilireetions t.su-id by the
Ele~tion' CofumlSsioil iri ille behalf, the list into the
ba5ic roll :bY iitduding the .. mimes of electors in the
Us,t together with am partiCulars relating io. . such
eleetots. in' the relevant ·parts of the . l)a~ic,,roll itse)f,
'so. :nowever'that 'no 'chaniie ·shall be made.in the pro'
ces~ ;IJf such integiatioii in 'the. name or itny electors
or any ~rtjcuhits rera\jnil to any elector .. is given io
thcHist"of amendments''.·
,Rule' 23 priYvidl!~ for appeals agrupst decisi,ons ·:of the 1legi5tratio11
'Oflket under· nlle8"20; 21 ,or 2 lA ·Under sub-tufe f<f) of that rμte
·"every del:ision Of' the 'iippellate olli.~er' shall b~ final, but in so far
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PARMAR HIMATSINGH v. PATEL HAJl.MANBHAI (Goswami, /.)
4~7
as it reverses .of modifies a decisioa of the tegiSlralilmndllicef,. shall
take effect only from the date of the decision in api)oals"
By sub·
rule ( 5) "the registration alliccr shall CllUBe; dil:h amendments to
be ma@ in the roll as may be'iiecessary to gi~ effect to the deci•ions
of the appellate officer under this rule".
Section ·22 Of the Representation of the People Act, 1950, provides for oorrcction of entries in Electoral Rolls and Section 24 provides for apPeals against orders made under sections 22 and 23 of
that Act in· the manner prescribed' by_ the Rule&.-
From an examination of the above material provisions it is clear
that the entries in the Electoral Roll may be corrected at different
stages provided under · the law · and there is
also provision
for
appeal
against decisions
of
the Registration
Officer.
At
the
time
of scrutiny,
the Returning Offi~er [\as to be satisfied
about the identity of the candidates and will have to decide
all objections with regard to the nomination paper. The scrutiny will
have to be made by him carefully even if there is no objection raised
against the nomination paper.
We are required to consider in this
case whether Jivabhai has complied with section 33(5) of the Act.
Evidently he is an elector of a different constituency.
That being
the position he could have complied with section 33(5) by following
one or the other of the three modes provided in that sub-section,
namely, ( 1) he could have produced a copy of the Elec~oral Roll of
Shahpur constituency, or (2) he could have produced a copy of the
relevant part of tbe Electoral Roll of that constituency in which his
name appears, or ( 3) he could have produced a certified copy of
the relevant ·entries in the Electora1 Roll of that constituency.
He,
however, selected the third mode by enclosing a certified copy of the
corrigendum to the Electoral Roll.
It. is clear that the corrigendum does not furoish all the particulars
which would be available if a certified copy of the relevnnt entries
in the original Electoral Roll as well ~s the corrigeudum were produced before the Returning Officer at the time of scrutiny. Since the
original Electoral Roll may be corrected and amended, even sometimes bY deleting some names, it is absolutely necessary for the satisfaction of the Returning Officer that a certified copy of not only
the original Electoral Roll containing the relevant entry as also a certified copy of the amenliment list concerning the candidate are produced at the time of scrutinv. if the.se had not already been filed along
with the nomination p~per. fa th¥ instant case the candidate remained
satisfied by jiling a .;ertified copy of only the corrigendum which did
not satisfy the Returnin~ Ol!Wer as re~ards the.: ide11lity . of the candidate. When, therefore,_ t,he Returajitg Officer rejected the nomination
paper, the,order can. '?e supported,on,!be g;ound th~t a.cer\ified copy of
the entry m the ongmal EleCtciral R,oll was not furmihed nlong with
the certified .copy of the entry in the list of amendiru:nts. H cannot.
therefore, be !iai<! .that the rejection of the nomiilaiion paper under
section 36(2)(b) iihhis case is improper. In this con.ne~tiori we may
SUPREME COURT REPORTS
l 1974] 3 S.C.R.
refer to a decision of this Court in Sri Baru Ram v. Shri111aii P-rcoauni
and others(
1), where an identical question came up for consideration.
The following extract from the decision will be apposite :
"Su\J-section 5 of s. 33 deals with the
sta~t: of
the
scrutiny of the nomination papers and it provides that where
ac~ndidate is an elector of a different constituency, a copy
or tJle- electoral roJI of that constituency or tl'e rcl~vant part
ther·oof or a certified copy of the relevant entry of such roll
shall, unless it is filed along .with the nomination paper, be
produced before the
returning officer at tho time of the
scrutiny. It is thus clear that when the stage of scrutiny is
reached the returning officer has to be satisfied
that
the
candidate is an elector of a different constituency and for
ihat 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 unde.r 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
w prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive
cvidc:tcc of the said fact ..... Section 33 (5i requires the
candidate to supply the prescribed copy a.1d s. 3!i(Z) (b)
provides that on his failure to comply wit.b tile ·said requirement his nomination paper is ]iable to be rejected.
Jn other
words, this is a case where the statute requires the candidate
to produce the prescribed evidence and provides a penalty
for his failure to do so.
In such a case it is difficult to appreciate the relevance or validity of the argument that the
requirement of s. 33(5) is. not mandatory but is directory,
because the statute itself bas made it clear that the failure
to comply with the said requircinent leads to the rejection
of th.e nomination paper.
Whenever the statute
requires
a particular act to be done in a particular manne.r and also
:lays down that failure to comply with the said requirement
leads to a specific consequence it would
be
difficult
to
accept the a.rgument that the failure to c<>mply with the said
requirement should .lead to any other consequence .....
There is no doubt that the essential object of the scrutiny
of nomination papers is that the returning officer should be
satisfied that the candidate who is not an elector in the
constitllency in question is in fact an elector of a different
constituency.
The .satisfaction of the returning officer is
thus the matter of substance in these proceedings; and if the
statute provides the mode in which the returning officer has
(t) ft959] S.C.R. t403/14t8-142t.
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PARMAR HIMATSINGH v. PATEi. HARMANBHAI (Goswami, /.)
459
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to be satisfied by the candidate it is that mode which the
candidate must adopt . , ... "
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The same view was expressed by this Court in Narbada Prasad v.
Chhat?an Lal and Ors.( 1 ) :-
"There was no
compliance
with the provisions
of
s. 3315l of the Representation of the People Act and there
·was no power in the court to dispense with this requirement.
It is a well-understood rule of law that ii a thing
is to be done in a particular manner it must be done in that
manner or not at all. Other modes of compliance are excluded';.
We are, therefore, clearly of the .view that non-compliance with
section 33(5) is a defect of a substantial character and is not covered
by section 36( 4) of the Act. The Returning Officer in this case
rightly rejected the aomination paper of Jivabhai 'and the rejccil0n
cannot be held to be improper.
In the result the appeal fails and is
dismissed with costs.
P.B.R.
Appeal dismissed-
(I) [19691 (1) S.C.R, 4~/SOi.