Holding

Nomination papers of candidates of unrecognised parties subscribed by ten electors cannot be rejected; such improper rejection voids the election, while a nomination where the oath was taken after filing, despite a clerical timing error, is valid.

Summary

In the Solan constituency election, the petitioner Mohinder Nath Sofat challenged the election of Krishna Mohini on two grounds: the alleged improper rejection of the nomination papers of Pritam Chand and Mohan Singh, who were alternate candidates of unrecognised parties, and the alleged illegal acceptance of Jagdish Chand Bhardwaj’s nomination because his oath was purportedly taken before his nomination was filed. The Supreme Court held that because Chand and Singh were candidates of unrecognised parties and their papers were subscribed by ten electors, their nominations could not be rejected; such rejection alone voids an election under Sec. 100(1)(c). The Court also found that the oath for Bhardwaj was administered after the nomination, the recorded time being a clerical error, so his nomination was valid and the material‑effect test was unnecessary. Consequently, the Court dismissed the appeal, upholding the High Court’s order setting aside the election.

Issues considered

The validity of the rejection of nomination papers of Pritam Chand and Mohan Singh, who were candidates of unrecognised political parties and had ten proposers.
Whether such improper rejection alone suffices to void an election under Section 100(1)(c) of the Representation of the People Act, 1951.
The validity of Jagdish Chand Bhardwaj’s nomination in view of the alleged timing error of the oath and whether its acceptance materially affected the result under Section 100(1)(d)(i).
The interpretation of ‘recognised political party’ in the first proviso to Section 33(1) of the Representation of the People Act, 1951 in relation to the Symbols Order.
Whether a clerical error in recording the time of oath administration invalidates a nomination.

Legislation cited

Conduct of Election Rules, 1961s. 10, s. 5
Constitution of Indias. Article 123, s. Article 173
Election Symbols (Reservation and Allotment) Order, 1968s. para 13, s. para 6
Representation of the People Act, 1951s. 100(1)(c), s. 100(1)(d)(i), s. 29-A, s. 32, s. 33, s. 36

Subjects

election lawnomination papersrecognised political partyunrecognised political partysubstitute candidateoath timingvoid electionRepresentation of the People Actsymbols order

Judgment

. ,. ,_
A KRISHNA MOHINI
v.
MOHINDER NATH SOFAT

OCTOBER 26, 1999

B [DR. A.S. ANAND, C.J., S. RAJENDRA BABU AND
R.C. LAHOTI, JJ.]

Representation of the People Act, 1951: Sections 29-A, 33, 36 and
100(/)(c).
c
Election-Nomination-Candidates-Set up by recognised and
unrecognised political parties-Distinct(on between-Held: The nomination
paper of the candidate set up by a recognised political party has to be
subscribed to by one elector as proposer whereas that of the unrecognised
D political party has to be subscribed to by ten proposers.

Election-Nomination-Substitute candidates-Set up by recognised and
unrecognised political parties-Recognised political party set up more than
one candidate-Held: The one who complies with the requirements of
paragraph 13 of Symbols Order will be treated as an official candidate set
E up by such political party-His nomination even if subscribed to by a single
elector as proposer is valid-Nomination of a substitute candidate cannot
be rejected if it is subscribed to by ten proposers even if the nomination of
the main candidate is accepted-in such a case the substitute candidate has
to be treated as an independent candidate-Improper rejection of such
F nomination paper renders the election void-Election Symbols (Reservation
and Allotment) Order, 1968, para 13-Election Commission Circular dated
9-8-1996, paras 7,14 and 15-Handbookfor Returning Officers, 1998, Chap.
VJ paras J0.3(iii),(iv) and (vii).

Election-Nomination paper-Symbols-Error or omission-In
G description of-Held: Not a defect of a substantial character-Hence,
nomination paper cannot be rejected on this ground and appropriate symbol
as per entitlement must be allotted to the candidate concerned-Conduct of
Election Rules, 1961, Rules 5 and JO.

Election- Oath or affirmation-Taking of-Held: To be taken by the
H 76
- ;, .
KRISHNA MOHIJl!I v. M.N. SOFAT

candidate after submission of his nomination paper but before date ofscrutiny-
Therefore, oath or affirmation taken before submission of nomination form or
77
A

after date of scrutiny is invalid-However, mere clerical error regarding time
of taking oath or affirmation will not invalidate the nomination-Constitution
of India, 1950, Article 123.

Words and Phrases: B

''Recognised political party' '-Meaning of-Jn the context of First
proviso to Section 33(1) of the Representation of the People Act, 1951.

The respondent, a defeated candidate in an election to State Legislative
Assembly filed an election petition before the High Court challenging the
c
election of the appellant-returned candidate alleging improper rejection of
the nomination papers of one P and M, the substitute candidate of registered
and unrecognised political parties, and also that the result of the election
insofar as it concerned the respondent was materially affected by the improper
acceptance of the nomination paper of one J. The two grounds were covered D
by Sections lOO(l)(c) and lOO(l)(d)(i) of the Representation of the People Act,
1951.

On the day of scrutiny, the Returning Officer rejected the nominations
of P and M on the ground of acceptance of the nomination papers of the main
candidates of the respective political parties. The date and time of presentation E
of the nomination as endorsed in the nomination paper of J were "4-2-1998"
and "12.45 p.m." respectively. The oath form bore the date and time of the
oath having been administered by the Returning Officer as "4-2-1998" and
"12.44 p.m." respectively. The Designated Election Judge of the High Court
allowed the election petition and set aside the appellant's election. Hence this F
appeal

On behalf of the appellant it was contended that the nomination papers
of M and N were rightly rejected by the Returning Officer as they were mere
alternate or substitute candidates of the main political parties; that the timings
endorsed on the nomination paper and oath form of J suffered from a mere G
clerical error and that the .oath was administered to J by the Returning Officer
after the presentation of the nomination paper by J and, therefore, his
nomination paper was rightly accepted by the Returning Officer.

.-~ On behalfofthe respondent it was contended that though P and M had
H
78 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A claimed that they were alternate or substitute candidates of the main political
parties each of the nomination papers was proposed by ten electors of the
constituency and as such both were entitled to be treated as independent
candidates and, therefore, the nomination papers filed by them could not have
been rejected in spite of the acceptance of the nomination papers of the main
B candidates; and that J had not taken oath after the submission of the
nomination paper before the Returning Officer, who was authorised by the
Election Commission. of India to administer the oath or affirmation as required
by Article 123 of the Constitution and, therefore, acceptance of the nomination
paper of J was illegal which had materially affected the result of the election.

C Dismissing the appeal, this Court

HELD : 1.1. The scheme of the Election Symbols (Reservation and
Allotment) Order, 1968 shows that it does not deal with unregistered political
parties. It deals with registered political parties by subdividing them into
recognised and unrecognised political parties and with independent candidates.
D The expression "recognised political party" as occurring in first proviso to
Section 33(1) of the Representation of the People Act, 1951 must be assigned
the same meaning as assigned to it by the Symbols Order. (90-G; 91-El

1.2. The distinction between nomination filed by a candidate set up by a
E recognised political party and a candidate not set up by a recognised political
party is precise. A perusal of the first proviso to Section 33(1) of the Act
makes it clear that a candidate not set up by a recognised political party,
meaning thereby a candidate set up by an unrecognised political party or an
independent candidate, in order to be duly nominated for election must have
his nomination paper subscribed to by ten proposers being electors oifthe
F constituency. If such nomination paper be subscribed to by only one elector
as proposer or by a number of electors less than ten, then it will amount to
non-compliance with the provisions of Section 33. A candidate, who is merely
a substitute or a cover candidate set up by a recognised political party, may
file his nomination paper proposed by only one elector of the constituency. If
G the nomination paper of the approved candidate of that political party is
accepted, the nomination paper filed by the substitute or cover candidate shall
be liable to be rejected because there can be only one candidate set up by a
recognised political party. In order to be a candidate set up by a registered
and recognised political party so as to take advantage for being proposed by
a single elector, all the four requirements set out in clauses (a), (b), (c) and .
H (d) of Paragraph 13 of the Symbols Order must be satisfied. If any O>ne or <(.
J KRISHNA MOHINI v. M.N. SOFAT 79
;.- .
~
more of the requirements are not satisfied, the benefit of nomination being A
proposed by a single elector is not available to him. A situation can be
visualised where more candidate than one may be aspiring to be the candidates
each set up by the same recognised political party. The one in respect of
whom notice and communication in forms A and 8 referable to sub-paras (b),
(c) and (d) of Para 13 of Symbols Order have been filed not later than 3.00 B
p.m. on the last date for making nominations shall be treated as a candidate
set up by such political party. His nomination paper, even if subscribed to by
a single elector as proposer, shall be valid subject to satisfying other
conditions as to validity. If any of the requirements contemplated by sub-paras
(b), (c) and (d) of para 13 of the Symbols Order are not complied with by filing
the requisite notice and communication, then the candidate shall not be deemed C
to be the one set up by the recognised political party. His nomination, if
subscribed to by a single elector or electors less than ten, shail be liable to
be rejected. If the nomination paper of such a candidate is subscribed to by
' ten proposers being electors of the constituency within the meaning of first
proviso to Section 33 (1) of the Act, then the nomination paper cannot be
rejected because an err_or or omission as regards symbol or choice thereof D
being a defect not of a substantial character, would not come in the way of the
nomination being accepted. Choosing a wrong symbol, leaving blank the space
meant for filling the choice of symbols and an error in describing the symbol
are all defects not of substantial character. An independent candidate may
mention as his preference the symbol reserved for a recognised. political party, E
but that again will not be a defect of a substantial character. The nomination
paper shall be accepted as valid and an appropriate symbol to which the
candidate may be entitled in accordance with the Symbols Order shall be
allotted by the Election Commission. [94-8-H; 95-A)

K.S. Abdul Azeez v. Ramanathan Che/liar, AIR (1967) SC 85 and N. T. F
Veluswami Thevar v. Raja Nainar, AIR, (1959) SC 422, relied on.

Sadiq Ali v. Election Commission ofIndia, AIR (1972) SC 186, referred
to.
G
2.1. A candidate may be aspiring for being set up by a recognised
political party. He can pin his hopes for being sponsored by such political
party upto the hour by which the time for filing the nomination papers expires. ·
If he fails to obtain such sponsorship by the recognised political party in
accordance with the provisions contained in para 13 of the Symbols Order, H
80 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A then he has the choice of continuing his candidature as an independent *·
candidate subject to his satisfying the requirement of having been proposed
by ten electors of the constituency and other requirements as to the validity
of a nomination paper. If he does not withdraw his candidature, then he would
be a candidate validly nominated. Such a candidate who has not been able to
/.
B secure sponsorship by a recognised political party at the time of filing his
nomination papers but is still hopeful of securing such sponsorship, ha:s the
choice of filing nomination papers more than one. ln one of the nomination
papers subscribed to by one elector of the constituency he may declare himself
to have been set up by a recognised political party. He may file yet another
nomination paper declaring his candidature as an independent subscribed to
C by ten elector of the constituency as proposers. A single nomination paper
though containing a declaration by the candidate of his having been set up by
a recognised political party, may itself be subscribed to by ten electors of the
constituency as proposers. lo either case, his nomination would be valid
insofar as the aspect of proposing is concerned. (95-G, H; 96-A, B, CJ

D r,.• 2.2. Con'Se"quent upon amendments having been made in the
Representation of the People Act, 1950 and 1951 by the Amendment Act, 1996,
the Election Commission oflndia issued a Circular dated 9-8-1996 for the
guidance of the Chief Electoral Officers of all the States and the Union
Territories. Paragraphs 7, 14 and 15 thereof are relevant. So are the
E insfructions for the guidance of the Returning Officers contained i111 the
Handbook for Returning Officers, 1998 vide paragraphs I0.3(iii), 10.3 (iv)
and 10.3 (vii) of Chapter VI are relevant for the present case. The above said
Circular and guidelines issued by the Election Commission of India are
consistent with the statutory provisions and correctly bring out the position
F of Ia~. (96;. 97-H; 98-F)

Election Commission of lnfiia circular dated 9-8-1996 and Handbook
for Returning Officers, (1998), Ch. VI paras 10.3 (iii), 10.3. (iv) and 10.3 (vii),
referred to.

G 2.3. Admittedly, the two candidates P and M were set up by unrecognised
political parties. Both the nomination papers were subscribed each by ten
electors of the constituency as proposers. The Retu~ning Officer had no other
option but to accept their nomination forms as none of them was otherwise
disqualified and the nomination forms also did not suffer from any other
H infirmity. In fact, the filing of Forms 'A' and '8' as regards them was not of <(
82 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A 4.1. However, the finding arrived at by the Designated Election Judge
betrays too pedantic an approach and overlooks the effect of oral testimony
adduced by the respondent. The Returning Officer has very clearly stated that
the nomination paper was presented by J before him on 4-2-1998 at 112.45
p.m. After the nomination paper was presented to him, he had carried out the
B preliminary examination thereof which took 2-3 minutes, whereafter he had
administered the oath to the candidate. The candidate signed the oath Form
in his Presence. The date and time recorded bn the nomination form and Oath
Form were in the handwriting of the Election Kanungo who was assisting him.
The time recorded as "12.44 A.M." on the Oath Form was clearly a clerical
error. The witnesses very emphatically stated that the Oath was administered
C only after the submission of nomination paper, the time whereof insofar as
the witness could recollect was 12.46 p.m. No objection to the validity of
nomination was taken by anyone at the time of scrutiny. The Election Kanungo
has also appeared in the witness box. He too has stated that the time recorded
on the Oath Form was wrong and appears to be an outcome of rush of work in
D the office at the time of filing of the nomination papers. J has in his. statement
narrated the facts, which find support from the testimony of the Returning
Officer and .the Election Kanungo assisting him. (102-E, F, G, H; 103-A)

4.2. The Trial Judge was not right in recording the finding that the
oath was administered before the filing of the nomination papers by literally
E accepting the time of oath at 12.44 a.m, as recorded on the oath form. The
oath could not and must not have been administered on the midnight intervening
3rd and 4th day of February 1998. If the oath was administered by the
Returning Officer, it was certainly between 11.00 a.m. and 3.00 p.m. of 4-2-
1998. That shows that the time of 12.44 a.m. as recorded on the oath form
F was an obvious error. Once this fact is accepted, the weight of overwhelming
testimony coming from the mouths of the Returning Officer and the Officer
assisting him, both being public officers having no obvious reason to tell a
lie, should have been assigned due weight. Taking it into consideration as
corroborating the testimony of J, the Trial Judge should have held that the
oath was administered after the presentation of the nomination forms before
G the Returning Officer. It is held to be so and accordingly the finding to the
contrary recorded by the Designated Election Judge is set aside. The
nomination form of J was not illegally accepted. The acceptance was legaL It
is, therefore, not necessary to examine the legal issue whether the result of·
the election can be said to have been materially affected by the acceptance of
H the nomination paper of J. (103-C, D, E)
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.) 83
CIVIL APPELLATE JURISDICTION : Civil Appeal No .. 3653 of A
1999.

From the Judgment and Order dated 12.5.99 of the Himachal Pradesh
High Court in E.P. No. 3 of 1998.

O.P. Sharma, R.C. Gubrele and K.R. Gupta for the Appellant. B

A.K. Goel, Bhoop Singh, Ms. Sheela Goel, S.S. Shamsheri and Ms.
Meenakshi for the Respondent.

The Judgment of the Court was delivered by C
R.C. LAHOTI, J. This is an appeal under Sec~ion 1 I 6A of the
Representation of the People Act, 1951 preferred by a candidate, who, though
successful at the polls, has lost in the election petition before the High Court.
For the sake of convenience, the parties shall be referred to as they were
arrayed in the election petition filed before the High Court. D
Mohinder Nath Sofat, the defeated candidate, filed an election petition
putting in issue the election of Smt. Krishna Mohini, the returned candidate,
alleging improper rejection of the nomination papers of Sarvshri Pritam Chand
and Mohan Singh and also that the result of election insofar as it concerns
the returned candidate having been materially affected by the improper E
acceptance of nomination paper of Jagdish Chander Bhardwaj. The two grounds
were covered by Section 100( 1)(c) and Section I00( I)(d)(i) of the Representation
of the People Act, 1951 (hereinafter referred to as the 'Act', for short). Both
the pleas have prevailed with the learned Designated Election Judge of the
High Court of Punjab and Haryana. The election petition has been allowed F
and the election of the returned candidate set aside.

Legislative Assembly elections including for 14-Solan Constituency of
Himachal Pradesh Vidhan Sabha were held in the months of January and
February, 1998 as per the programme notified by the Election Commission of
India. Nomination papers were to be filed between 28.1.1998 and 4.2.1998 G
(both days inclusive). Scrutiny of nomination papers was to take place on
5.2.1998. Last date for withdrawal of candidature was 7.2.1998 upto 3 p.m.
Allotment of symbols was to take place after 3 p.m. on 7.2.1998. Date of
polling was 28.2. I 998. Counting of ballots was to take place on 2.3.1998.

The petitioner filed his nomination as a candidate of Bhartiya Janta H
84 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A Party, a registered and recognised political party. The respondent filed her
nomination as a candidate. of Indian National Congress (I), a registered and
· recognised political party. One Pritam Chand son of Bahadur Ram, filed his
nomination (Ex. PW !IP) as a candidate of Shiv Sena (a registered -
unrecognised political party). On the date of scrutiny, his nominatioin was
B rejected by the Returning Officer by an order passed as under : 1
"Since the nomination of main candidate has been accepted, he being
substitute candidate, his nomination papers are rejected."

One Mohan Singh son of Shiv Ram had filed his nomination (Ex. PW
C. l/R) as a candidate of Himachal Vikas Congress (a registered-unrecognised
political party). His nomination was also rejected by the Returning Officer by
an order passedvas under :-

"The main candidate since has been accepted hence his nomination
is rejected."
D Jagdish Chander Bhardwaj (PW 2) had filed his nomination (Ex. PW I/
N) as a candidate of Communist Party of India (CPI). The date and time of
presentation of nomination as endorsed on his nomination paper are "4.2.1998"
and "12.45. p.m." The Oath Form (Ex. PW 1/0) bears the date and time iofthe
Oath having administered by the Returning Officer as "4.2.1998" and "12.44
E am.".

There were four other candidates whose nomination papers were found
to be in order and were accepted by the Returning Officer. Thus, there were
in all seven candidates in the fray. The contesting candidates secured the
votes as under :-
F
S.No. Name of Candidate Party affiliation No. of votes
polled

I. Ms. Krishna Mohini Indian National 12,210
(respondent) Congress
G
2 Jagdish Chand Bhardwaj C.P.I. 598
3. Mohinder Nath Sofat Bhartiya Janta Party 12,.184
(Petitioner)
4. Ravinder Nath Parihar Samajwadi Party 512
H 5. Vinod Kumar Himachal Vikas Congress I, 063
-
~
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.) 85
·"' 6. Smt. Satya Devi Shiv Sena 12 A
7. Hanninder Singh Thakur Independent 9,739

In accordance with the above result of counting, the respondent-Krishna
Mohini was declared elected. She had defeated her nearest rival, the petitioner,
by a margin of 26 votes.
B
-
According to the petitioner, the nomination papers of Sarvshri Pritam
Chand and Mohan Singh were wrongly rejected by the Returning Officer.
Though these two candidates, as per their nomination papers, had claimed
themselves to be alternate candidates of Shiv Sena and Himachal Vikas
Congress respectively, but each of the nomination papers was proposed by C
ten electors of the Constituency and as such both were entitled to be treated
as independent candidates and none of the nomination papers filed by them
could have been rejected inspite of the nomination papers of the main candidates
having been accepted by the Returning Officer. Improper rejection of any
nomination paper is by itself a ground for avoiding the election of the
returned candidate under Section IOO(l)(c) of the Act. Jagdish Chander D
Bhardwaj had not taken oath after the submission of the nomination paper
before the Returning Officer, who was authorised by the Election Commission
of India to administer the oath or affirmation as required by Article 173 of the
Constitution and hence his nomination paper was illegally accepted which
has resulted into the result of election being materially affected.
E
According to the respondent, the nomination papers of Pritam Chand
and Mohan Singh were rightly rejected by the Returning Officer as they were •
mere alternate or substitute candidates of Shiv Sena and Himachal Vikas
Congress respectively. Inasmuch as the nomination papers ofSmt. Satya Devi
and Shri Vinod Kumar, the candidates set up by the said two political parties F
respectively, were found to be in order and accepted, the question of accepting
nomination papers of alternate/substitute candidates did not arise. Their
nomination papers were rightly rejected by the Returning Officer. So far as
Jagdish Chander Bhardwaj is concerned, the timings endorsed on the
nomination paper and oath form suffer from a clerical error merely. Oath was
administered to Jagdish Chander Bhardwaj by the Returning Officer after the G
presentation of nomination paper by him and, therefore, his nomination paper
was rightly accepted by the Returning Officer.

On the basis of the pleadings of the parties, the following issues were
~ framed by the learned Designated Election Judge :- H
86 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

'A "1. Whether the petitioner does not disclose full, concise and material
fact~ and does not disclose a cause of a~tion? If so, its effect? OPR

2. Whether the petitioner has knowingly and intentionally concealed
the material facts? If so, its effect? OPR

B 3. Whether the nomination papers ofS/Shri Pritam Chand and Mohan
Singh have been wrongly and improperly rejected and the election of
respondent No. I is liable to be declared void under Section 100( 1)( c)
of the Representation of People Act? OPP

c 4. Whether the nomination papers of Jagdish Chand Bhardwaj were
wrongly accepted and the result of election has been materially affected
thereby? OPP

5. Relief."

D
Issues Nos. I and 2 were not pressed for decision by the learned senior
counsel for the respondent before the High Court and they were accordingly
decided against the respondent. Shri O.P. Sharma, learned senior counsd for
the appellant, has disputed the correctness of the factual statement recorded
by the High Court that the two issues were not pressed for decision. However,
E we are not persuaded to entertain such a plea. Firstly, no application disputing
the correctness o!" the factual statement recorded by the learned Designated
• Election Judge in his judgment has been moved before the same Judge.
Secondly, we also do not find any merit in the plea contained in the written
statement filed in the High .Court on which the two issues have been framed.
F Even if pressed for decision, these two issues would. have been liable to be
decided in favour of the petitioner.

Issue Nos. 3 and 4 have been decided in favour of the election petitioner
allowing the relief of setting aside the election of the respondent under Issue
No. 5. The findings on these issues are under challenge in this appeal.
G
We would first take up the Issue No. 3.

Exhibit PW-1/G is the nomination paper of Mohan Singh, which was
filed at 2.55 p.m. on 4.2.98. It has been subscribed by ten proposers, who are
H electors of the Constituency. In part-III of the nomination paper, Mohan Singh
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.] 87
·" has declared himself to have been set up at the election by the Himachal A
Vikash Congress party. For the choice of symbols, he has given 'telephone'
as the first preference and left blank the space meant for second and third
preferences.

] Pritam Chand filed his nomination paper at 1.55 p.m. on 4.2.98. In Part- B
lII of the nomination paper, he has declared himself to have been set up as
a candidate by Shiv Sena, a registered unrecognised political party. The space
meant for giving the choice of three symbols in the order of preference has
been left blank. The nomination paper is subscribed by ten ·proposers, all
-. being electors of the Constituency.

Exhibit R-1 is the communication in form-A made on behalfofHimachal
c
Vikash Congress to the Chief Electoral Officer, Himachal Pradesh and the
: Returning Officer for the 14-Solan Constituency, pursuant to para 13(b), (c)
and (d) of the Election Symbols (Reservation and Allotment) Order, 1968
declaring Shri Chaman Lal, General Secretary of the party, as the person
authorised for 14-Solan Constituency· appending his specimen signatures. . D
Exhibit R-3 is form-B filed under the signature of the said Chaman Lal
on 3.2.98 before the Chief Electoral Officer, 14-Solan Constituency, pursuant
to paragraph 13(b), (c) and (d) of the Election Symbols (Reservation and
Allotment) Order, 1968 whereby it was declared that the 'approved candidate' ·E
was Vinod Kumar and Mohan Singh was 'substituted candidate' who will
step-in as a contesting candidate on the approved candidate's nomination
· being rejected on scrutiny or his withdrawing from the contest.

Similarly, form-A was filed before the Chief Electoral Officer, Himachal
Pradesh, and the Returning Officer for the Solan Constituency on behalf of F
Shiv Sena forwarding the specimen signatures of Shri Satish Pradhan 'Raj ya
Sampark Neta' of Shiv Sena, as the person authorised for the purpose. Form-
B was filed under the signature of Shri Satish Pradhan declaring Satya Devi
to be the 'approved candidate' of Shiv Sena and Pritam Chand as 'substitute
candidate~ who will step-in as contesting candidate, on the approved
candidate's nomination being rejected on scrutiny or his withdrawing from the G
contest.

It is to be noted that neither form-A nor form-B bears the signatures of
any candidate. Indeed there is no provision in any Act, Rules or Order which
requires any such form to be signed or subscribed to by a candidate.
H
88 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

·A At the scrutiny, the nomination papers of Pritam Chand and Mohan
.
.

Singh were rejected by the Returning Officer as already stated.

The learned Designated Election Judge has held both the rejections to
be illegal, which finding has been vehemently attacked by Shri O.P. Sharma,
the learned senior counsel for the appellant.
B The provisions of Sections 33 and 36 of the Act insofar as relevant for
our purpose, are extracted and reproduced hereinunder :-
"33. Presentation of nomination paper and requirements for a valid
nomination.-(!) On or before the date appointed under clause (a) of
Section 30 each candidate shall, either in person or by his proposer,
c between the hours of eleven O'clock in the forenoon and three O'clock
in the afternoon deliver to the returning officer at the place specified
in this behalf in the notice issued under section 31 a nomination paper
completed in the prescribed form and signed by the candidate and by
a elector of the constituency as proposer.
D {Provided that a candidate not setup by a recognised political party,
shall not be deemed to be duly nominated for election from a
constituency unless the nomination paper is subscribed by .ten
proposers being electors of the constituency; · "
Provided further that no nomination paper shall be delivered to the
E returning office on a day which is a public holiday;
Provided also that in the case uf a local authorities' constituency,
graduates' constituency or teachers' constitutency, the reference to
"an elector of the constituency as proposer" shall be construed as a
reference to ten per cent of the electors of the constituency or ten
F such electors, whichever is-less, as proposers."]

xxx xxx xxx

36. Scrutiny of nominations.-( I) 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 authorised
G 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. ·
H (2) The Returning Officer shall then examine the nomination papers
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTJ, J.] 89
and shall decide all objections which may be made to any nomination, A
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 or is disqualified for being chosen to fill B
the seat under any of the following provisions that may be
applicable, namely-
Articles 84, I 02, 173 and 191. Part II of this Act [and sections
4 and 14 of the Government of Union Territories Act, 1963.); or
(b) that there has been a failure to comply with any of the provisions C
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) ............(not reproduced)
D
(4) The Returning Officer shall not reject any nomination paper on the
ground of any defect which is not of a substantial character."
xxx xxx xxx
[underlining by us]
The first and third provisos to sub-section (I) of Section 33 have been E
added by the Representation of the People (Amendment) Act, 1996 [Act 21
of96] w.e.f. 1.8.1996. Prior to this, there was only one proviso which is now
the second proviso in the present form.
In exercise of the powers conferred by Article 324 of the Constitution
read with Section 29A of the Representation of the People Act, 1951 and F
Rules 5 and IO of the Conduct of Elections Rules,_ l 961 and all other powers
enabling it in this behalf, the Election Commission of India has issued the
Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred
to as the "Symbols Order", for short). This order provides for allotment of
symbols to the c.ontesting candidates, for classification of symbols into G
reserved symbol-reserved for exclusive allotment to contesting candidates
set up by a recognised political party, and free symbol -which is a symbol
other than a reserved symbol. Para 6 classifies political parties into recognised
and unrecognised political parties. To be a recognised political party in a
State, a political party must satisfy the conditions specified in clause (A) or
clause {B) oCsub-para (2) of Para .
6 of the Symbols.
Order. A recognised H
90 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

. A political party may be a National party or a State party. A candidate set up' "· ~
by a recognised party in an election contest can choose only a symbol
reserved for that political party. Candidates set up by political parties other
than recognised ones and independent candidates are entitled to free symbols.
A candidate other than a candidate set up by a recognised National or State
B Party in that State or a candidate set up by a State party at elections in other
State, has to choose and to be allotted a free symbol. A free symbol chosen
by only one candidate must be allotted to him and to no one else. Where the
same free symbol has been chosen by several candidates at such election the
manner how the symbol shall be allotted as amongst those several candidates
is laid down in sub-para 3 of para 12 of the Symbols Order.
C Para 13 of the Symbols Order [as substituted by O.N. 203-E dt. 5.8.1996,
and effective at the relevant time] provides as under :-
" 13.· When a candidate shall be deemed to be set up by a political
party.~For the purposes of this Order, a candidate shall be deemed
to be set up by a political party if, and only if,-
D (a) the candidate has made a declaration to that effect in his nomination
paper;
(b) a notice in writing to that effect has, not later than 3 p.m. on last,
date for making nominations, been delivered to the Returning Officer
of the constituency and the Chief Electoral Officer of the State;
E
(c) the said notice is signed by the President, the Secretary or any
other office bearer of the party and the President, the Secretary or
such other officer bearer is authorised by the party to sent such
notice; and
(d) the name and specimen signature of such authorised person are
F communicated to the Returning Officer of the constituency and to the
Chief Electoral Officer of the State not later than 3.00 p.m. on the last
date for making nominations."

For the purpose of Symbols Order, as defined in clause (h) of Para 2,
G "Political Party" means an association or body of individual citizens of India
registered with the Commission as a political party under Section 29A of the
Representation of the People Act, 1951. The scheme of the Symbols Order
shows that it does not deal with unregistered political parties. It deals with
registered political parties by sub-dividing them into recognised and
unrecognised political parties and with independent candidates. To be entitled
H to the benefit of allotment of symbols reserved to a recognised political party,

t
-r; , . KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.] 91
• the candidate has to be one set up by a recognised political party and in a A
manner prescribed by Para 13 of the Symbols Order. The privilege enjoyed by
a candidate set up by a recognised political party, as spelt out by a combined
reading of Section 33 of the Act with the provisions of Symbols Order, is that
his nomination paper is complete, inter a/ia, if proposed by an elector, (i.e.,
one only) of the Constituency. If the candidate be one not set up by a
recognised political party, i.e., ifhe be a candidate set up by an unrecognised B
political party or be an independent candidate, his nomination paper must be
subscribed by ten proposers being electors of the Constituency. Nomination
paper filed by a candidate set up by an unrecognised political party or an
independent candidate, cannot be proposed by a single elector of the
Constituency or by electors less than ten.
c
Prior to the amendment in the body of the Act introduced by Act No.
21 of 1996, which inserted, inter alia, the first proviso to sub-section (I) of
Section 33 of the Act, the expression "recognised political party" was not to
be found used in the Act. The Representation of the People (Amendment)
Act, 1989 (Act No. I of 1989) introduced, w.e.f. 15.6.1989, Section 29A as also
clause (f) in sub-section (I) of Section 2 of the Act. Section 2(1)(f) defines
D
"political party" to mean an association or a body of individual citizens of
India registered with the Election Commission as a political party under
Section 29A. The latter provision lays down the manner of such registration.
Symbols Order, 1968 divides 'registered political parties' into recognised and
unrecognised ones. For the purpose of Symbols Order as defined by Para E
2(1)(h) thereof, 'political party' is a political party registered with the
Commission under Section 29A of the Act. The Act does not define recognised
political party. The expression "recognised political party" as occurring in first
proviso to sub-section (I) of Section 33 of the Act must be assigned the same
meaning as assigned to it by the Symbols Order.
F
The submission of Shri O.P. Shanna, the learned senior counsel for the
appellant, is that setting up or otherwise of a candidate by a recognised
political party is an integral part of the scheme of sub-section (I) of Section
33 of the Act and hence an essential requirement of a valid nomination paper.
A candidate, who claims to have been set up by a political party, but fails
in substantiating such claim, would be deemed to have not complied with the G
provisions of sub-section (I) of Section 33 of the Act. He would attract the
wrath of clause (b) of sub-section (2) of Section 36 of the Act resulting in
the rejection of his nomination paper. The learned counsel further submitted
that Pritam Chand and Mohan Singh had both claimed to have been set up
~ by Shiv Sena and Himachal Vikas Congress respectively. Both failed in
substantiating their such claim. Both the political parties had set up Satya H
92 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A Devi and. Vinod Kumar respectively· as their approved candidates. The
Returning Officer was, therefore, justified in rejecting their nomination papers.
Neither Pritam Chand nor Mohan Singh was present at the time of scrutiny. ·
Neither of the two had at any time declared or expressed before the Returning
Officer his desire of contesting the election as an independent candidate
either in writing or orally. The Returning Officer was, therefore, fully justified
B in rejecting their nomination papers. The finding to the contrary recorded by
the learned Designated Election Judge is wholly unsustainable in law and is
liable to be set aside.

In our opinion, the submission of Shri Sharma, the leanied senior counsel
. for the. appellant,· is based on a misappreciation of the correct scope and
C purport of the relevant provisions of law and hence has not appealed to us.
The ·historical background artd the Objects and Reasons leading to the
issuance of the Symbols Order have been traced and set out by this Court
in Sadiq Ali and Anr. v. The Election Commission of India, New Delhi and
Ors., AIR (1972) SC 186 vide paras 17 and 18. This Court has observed :-
D
"17. Perusal of the different paragraphs of the Symbols Order makes
it manifest that they provide, as is made clear by its preamble, for
specification, reservation, choice and allotment of symbols at elections
in Parliamentary and assembly constituencies as well as for the
recognition of political parties in relation thereto and for matters
E connected therewith. One such matter is the decision of a dispute
when two rival sections or groups of a recognised political party claim
to be that party for the purpose of the Symbols Order........ .

18 ............. .lt may be pertinent to find out the reasons which led to the
introduction of symbols. It is well known that overwhelming majority
F of the electorate are illiterate. It was realised that in view of the
handicap of illiteracy, it might not be possible for the illiterate voters
to cast their votes in favour of the candidate of their choice unless
there was some pictorial representation on the ballot paper itself
whereby such voters might identify the candidate of their choice.
G Symbols were accordingly brought into use. Symbols or emblems are
not a peculiar feature of the election law of India. In some countries,
details in the form of letters of alphabet or numbers are added against
the name of each candidate while in others, resort is made to symbols
or emblems. The object is to ensure that the process of election is as
genuine and fair as possible and that no elector should suffer from
H any handicap in casting his vote in favour of a candidate of his
'
\
KRISHNA MOHINI v. M.N. SOFAT [R.C LAHOTl; J.°j 93
,,.
~ choice. Although the purpose which accounts. for the origin of symbols A
•
was of a limited character, the symbol of each political party with the
passage of time acquired a great value because the bulk of the electorate
associated the political party at the time of elections with its
,,
symbol... ......

Though Rule 4 of the Conduct of Elections Rule~ requires every B
nomination paper presented under sub-section (1) of Section 33 to be complete
in such one of the Form 2-A to 2-E as may be appropriate and, therefore, the
blank space meant for showing three symbols in order of preference as
symbols of the candidate's choice, has to be filled in, however, non-filling of
the space as to choice of symbol is not a defect of substantial character. Such
deficiency in the nomination paper is saved by the proviso to Rule 4 of the
c
Conduct of Elections Rules, 1961 which provides that ·a failure to complete
or defect in completing, the declaration as to symbols in a nomination paper
shall not be deemed to be a defect of a substantial character within the
meaning of sub-section (4) of Section 36. Choosing a wrong symbol, leavjng
blank the space meant for filling the choice of. symbols and an error in D
describing the symbol-are all defects . not of substantial character. An
independent candidate may mention as.his preference the symbol reserved for
a recognised political party, butthat again will not be a defect of substantial
character. Dealing with such cases, this Court has held irt K.S. Abdul Azeez
v. Ramanathan Chettiar and Ors., AIR. (1967) SC 85, that the question of
E
symbols should not play an important . part because
.
symbols
. .
can be assigned
. -

by political parties till the date for withdrawal. and nomination paper should ·
not be cancelled (on this ground) during the interval.

In N.T. Veluswami Thevar v. Raja Nainar and Ors., AIR (1959) SC 422,
this Court has held that there can be no rejection of nomination paper outside F
sub-section (2) of Section 36. Under S. 32 of the Act, any person may be
nominated as a candidate for election if he is duly qualified under the provisions
of the Constitution and the Act. Section 36(2) authorises the returning officer
to reject any nomination paper on the ground that he either is not qualified
or is disqualified for being chosen under the provisions referred to therein.
G
If there are no grounds for rejecting a nomination paper under S. 36(2), then
it has to be accepted, and the name of the candidate is to be included in a
list of validly nominated candidates vide Sec. 36(8). " .................. the improper
rejection or acceptance must have reference to S. 36(2), and the rejection of

-. a nomination paper of a candidate who is qualified to be chosen'for'dection
and who does not suffer from any of the disqualifications mentioned in S. H
94 SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R.

A 36(2) would be improper within S. IOO(l)(c)."
The distinction between nomination filed by a candidate set up by a
recognised political party and a candidate not set up by a recognised political
party is precise. A perusal of first proviso to sub-section (1) of Section 33
of the Act makes it clear that a candidate not set up by a recognised political
B party, meaning thereby a candidate set up by an unrecognised political party
or an independent candidate, in order to be duly nominated for election must
have his nomination paper subscribed by ten proposers being electors of the
Constituency. If such nomination paper be subscribed by only one elector as
proposer or by a number of electors less then ten, then it will amount to non-
C compliance with the provisions of Section 33. A candidate, who is merely a
substitute or a cover candidate set up by a recognised political party, may
file his nomination paper proposed by only one elector of the Constituency.
If the nomination paper of the approved candidate of that political party is
accepted, the nomination paper filed by the substitute or cover candidate,
shall be liable to be rejected because there can be only one candidate set up
D by a recognised political party. In order to be a candidate set up by a
registered and recognised political party so as to take advantage of being
proposed by a single elector, all the four requirements set out in clauses (a),
(b), (c) and (d) of Para 13 of the Symbols Order must be satisfied. If any one
or more of the requirements are not satisfied, the benefit of nomination being
E proposed by a single elector is not available to him. A situation can be
visualised where more candidates than one may be aspiring to be the candidates
each set up by the same recognised political party. The one in respect of
whom notice and communication in forms A and B referable to sub-para (b),
(c) and (d) of Para 13 of Symbols Order have been filed not later than 3.00
p.m. on the last date for making nominations shall be treated as a candidate
F set up by such political party. His nomination paper, even if subscribed to by
single elector as proposer, shall be valid subject to satisfying other conditions
as to validity. If any of the requirements contemplated by sub-para (b), (c) and
(d) of Para 13 of the Symbols Order are not complied with by filing the ·
requisite notice and communication, then the candidate shall not be deemed
G to be one set up by the recognised political party. His nomination, if subscribed
by a single elector or electors less than ten, shall be liable to be reje:cted. If
the nomination paper of such a candidate is subscribed to by ten proposers
being electors of the Constituency within the meaning of first proviso to sub- -
section (1) of Section 33 of the Act, then the nomination paper cannot be '
rejected because an error or omission as regards symbol or choice thereof
H being a defect not of a substantial character, would not come in the way of
·-
\-
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.] 95
the nomination being accepted. The nomination paper shall be accepted as A
valid and an appropriate symbol to which the candidate may be entitled in
accordance with the Symbols Order shall be allotted by the Election
Commission.

In the nomination paper (Ex. PW-1/P) filed by Pritam Chand, he claimed
to have been set up by Shiv Sena, a registered but unrecognised political · B
party. Vide Para 5 of the Election Petition, it is alleged that Shiv Sena was an
unrecognised political party. Similarly, Mohan Singh in his nomination (Ex.
PW-1/R) claimed to have been set up by Himachal Vikas Congress a registered
unrecognised political party. Vide Para 6 of the Election Petition, it is averred
that Mohan Singh was the candidate of an unrecognised political party, C
Himachal Vikas Congress. These facts are not disputed in the written statement
vide paras 5 and 6. Thus, it is not in dispute that both these candidates were
set up by unrecognised political parties. Both the nomination papers were
Subscribed each by ten electors of the Constituency as proposers. The
Returning Officer had no other option but to accept their nomination forms
as none of them was otherwise disqu,lified and the nomination forms also did D
not suffer from any other infirmity. In fact, the filing of Forms 'A' and 'B' as
regards them was not of any significance. The only question to which the
Returning Officer was called upon to apply his mind was as regards the
aHotment of symbol to each one of them and that stage would have arisen
only after the scrutiny was over and the stage for allotment of symbol arrived E
after 3.00 p.m. on 7.2.98. Each one of them was to contest the election either
as a candidate set up by an unrecognised political party or as an independent
candidate. The nomination paper of Pritam Chand did not mention the choice
of any symbol. The nomination paper of Mohan Singh mentioned 'Telephone',
the symbol ofHimachal Vikas Congress, as the symbol of first preference and
left the second and third preference blank. The Election Comm:ssion could F
have allotted an appropriate symbol to each one of the candidates to which
he was entitled subject to the symbols having been accepted by the Returning
officer.

A candidate may be aspiring for being set up by a recognised political G
party. He can pin his hopes for being sponsored by such political party upto
the hour by which the time for filing the nomination papers expires. If he fails
to obtain such sponsorship by the recognised political party in accordance
· with the provisions contained in Para 13 of the Symbols Order, then he has
the choice of continuing his candidature as an independent candidate subject
to his satisfying the requirement of having been proposed by ten electors of H
96 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A the Constituency and other requirements as to the validity of a nomination
paper. If.he does not withdraw his candidature, then he would be a candidate
validly nominated. Such a candidate who has not been able to secure
sponsorship by a recognised political party at the time of filing his nomination
papers but is still hopeful of securing such sponsorship, has the choice of
filing nomination papers more than one. In one of the nomination papers
B subscribed by one elector. of the Constituency he may declare himself to have
been set up by a recognised political party. He may file yet another nomination
paper declaring his candidature as an independent subscribed by ten electors
of the Constituency as proposers. A single nomination paper though containing
a declaration by the candidate of his having been set up by a recognised
C political party, may itself be subscribed by ten electors of the Constituency
as proposers~ In either case, his nomination would be valid insofar as the
aspect of proposing is concerned.

Consequent upon amendments having been made in the Representation
of the People Act, 1950 and 1951 by t)le Amendment Act, 1996 (Act No. 21
D of 1996) w.e.f. 1.8.96, the Election Commission of India issued a Circular dated
9.8.96 for the guidance of the Chief Electoral Officers of all the States and the
Union Territories. Paragraphs 7, 14 and 15 thereof are relevant for our purpose,
which are extracted and reproduced hereunder :-

"7. Under the amended section 33 of the Representation of the People
E Act, 1951, the nomination of a candidate at the election to the House
of the People or a State Legislative Assembly shall be required to be
subscribed by-

(i) One elector of the constituency as proposer, if the candidate has
F been set up either by a recognised National Party or_ by a
recognised State party in the State or States in which it is
recognised as a State party :

(ii) ten ( 10) electors of the constituency as proposers, if the candidate
has been set up by a registered-unrecognised political party or
G if he is an independent candidate.

14. It may be further noted that having regard to the changed law, the .-
Returning Officer will have to be satisfied at the time of the sc:rutiny
of nominations whether a candidate who claims to have been set up

H
by a recognised National or State party and whose nomination paper
is subscribed only by one elector as proposer has in fact been duly
' .
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.] 97
~
set up by such recognised party or not, so as to decide the validity A
or othel"Wise of his nomination paper. Therefore, it is essential that the
political parties intimate the names of the candidates set up by them
to the Returning Officers concerned and Chief Electoral Officer of the
--· State well before the date of scrutiny of nominations. Accordingly, the
Commission has decided that all political parties must hereafter give
the formal intimation in regard to the candidates set up by them to the B
aforesaid authorities NOT LATER THAN 3.00 P.M. ON THE LAST
DATE FOR MAKING NOMINATIONS IN FORMS 'A' AND 'B'
prescribed for the purpose by the Commission under para 13 of the
Election Symbols (Reservation and Allotment) Order, 1968. The said
para 13 of the Symbols Order has also been amended by the Commission c
accordingly.

... 15. As a result of the aforesaid amendments made to the Forms of
nomination paper and paragraph 13 of-the Symbols Order, certain
consequential amendments have also become necessary in the above
referred Forms 'A' and 'B' in which the political parties give formal D
intimation with regard to the candidates set up by them. A copy each
of the revised Forms 'A' is also enclosed herewith for your information
and use at all future elections. It will be observed from the revised
Form 'B' that the parties have still been given an option in that Form
to intimate the name of the substitute candidate who will step-in, if. E
the nomination of the main approved candidate of the party is rejected
on scrutiny. But such substitute candid!lte shall be deemed to have
been set up by the party, only if all the requirements under the said
para 13, as amended, of the Election Symbols (Reservatfon and
Allotment) Order, 1968 have been fulfilled in his case. If, however, the
nomination of the main approved candidate of the party is found valid F
on scrutiny, the substitute candidate shall not be deemed to have
I been set up by that party for the purposes of the amended section

J 33 of the Representation of the People Act, 1951 and his nomination
paper will be scrutinised by the Returning Officer having regard to the
other provisions of that Act." G
So are the instructions for the guidance of the Returning Officers
contained in the Handbook for Returning Officers, 1998 vide paragraphs 10.3
(iii), 10.3 (iv) and I0.3 (vii) of Chapter-VI as under:-

"(iii) If a candidate has filed one nomination paper with both parts I H
98 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A and II thereof filled and he fails to bring notice in Forms 'A' and 'B'
from the authorised officer-bearer of the concerned political party, the
nomination paper may be accepted if Part II is properly filled subscribed
by ten electors as proposers, as there will be substantial compliiance
with the provisions of Section 33 of the Representation of the People
Act, 1951.
B
(iv) If a candidate, who filled his nomination paper as candidate
claiming to be set up by an un-recognised political party, fails to bring
in his favour a notice from the concerned political party in Forms 'A'
and 'B', his nomination paper will be accepted if it is subscribed by

c ten electors as proposers, and he would be deemed to be: an
independent candidate.

XlO(! xxx xxx

. (vii) The nomination paper of a substitute candidate of a recognised
D political party will be rejected if the nomination paper of the main
approved candidate of that recognised political party is accepted.
However, if such substitute candidate has also filed another nomination
paper subscribed by ten electors as proposers, this latter nomination
paper will be scrutinised independently by treating the candidate as
E an independent candidate. Further, if the nomination paper of the main
approved candidate of the party is rejected, then also the nomination
paper of the substitute candidate will be accepted, provided that the
party has intimated his name as its substitute candidate in Form 'A' '
and 'B' filed before 3 p.m. on the last date for making nominations."

F In our opinion, the above-said Circular and guidelines issued by the
Election Commission oflndia are consistent with the statutory provisions and
correctly bring out the position of law.

In the case of Pritam Chand and Moham Singh, the controversy before
[
G the Returning Officer was confined to the allotment of symbol only. The
question of testing validity of nomination papers by reference to first proviso
to sub-section (1) of Section 33 of the Act, did not arise at all for that proJiso
is confined in its application to the candidates set up or claiming to have been
set up by a recognised political party. It had no application to the nominattrms
filed by Pritam Chand and Mohan Singh. -
H
KRISHNA MOHJNI v. M.N. SOFAT [R.C. LAHOTI. J.] 99
The learned Designated Election .Judge was, therefore, right in holding A
that none of the two nomination papers suffered from any defect of substantial
character and. the Returning Officer was, therefore, not right in rejecting the
said nomination papers. We agree with the finding so recorded.

It was submitted by the learned senior counsel for the appellant before
us that inspite of the above-said findings, the election of the returned B
candidate (the appellant) was not liable to be set aside inasmuch as Pritam
Chand and Mohan Singh were dummy and non-serious candidates. Such an
inference, according to him, flows from the circumstance that none of them
was present at the scrutiny of nomination papers. On the nomination papers
being rejected, none of them tried to obtain copies of orders rejecting their C
nominations. On the contrary, they withdrew their security deposits. None
of them has filed any Election Petition on his own. We are not impressed
with submission. That apart illegal rejection of a nomination is by itself a
ground for setting aside an election without further proof of the result of the
election of the returned candid.ate having been materially affected, this
Court's decision in Hira Singh Pal v. Madan Lal, AIR (I 968) SC I I 79 is a D
complete answer to the contention forcefully advanced by the learned counsel.

In Hira Singh Pal's case (supra), one Hari Das was the approved candidate
of Indian National Congress. Madan Lal was set up as a substitute candidate
of the same party. The respondent had asked for the Congress symbol, E
namely, a pair of bullocks,, which was also asked. for by the approved
candidate. At the time of scrutiny, the respondent was absent. His nomination
was rejected being defective. The respondent did not ask for a copy of the
order of the Returning Officer rejecting his nomination. He had also acted
as a counting agent of Hari Das, the approved candidate of the political
party, who had contested the election. The respondent had also actively F
canvassed for the approved candidate. This Court arrived at a finding from
the facts a~d circumstances established in the case that the respondent was
at no time a genuine candidate and in fact the rejection of his nomination
paper was being availed for undoing the result of the election in view of the
approved candidate having lost at the election. This Court further held :- G

"All that we have to consider in this appeal is whether the Returning
Officer was right in rejecting the nomination . of the
respondent.. .............. Obviously, he rejected the nomination papers for
the reason that the respondent was only a dummy candidate but that
was not a matter for him to decide. If he was a dummy candidate H
100 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A there was occasion for him to with.draw his candidature after the
scrutiny of the nomination papers. Therefore, it is quite clear that the
respondent's nomination papers were improperly rejected. Such a
rejection was impermissible under S. 36 and the same is a ground
for setting aside the election under Section 100 of the Representation
of the People Act."
B
Vide Issue No. 4, the High Court has arrived at a finding that the
nomination paper of Jagdish Chander Bhardwaj was filled on 4.2.98 at 12.45
p.m. However, the Form of Oath accompanying the nomination papers shows
the oath as required by Article 173 of the Constitution having been subscribed
C by Jagdish Chander Bhardwaj at 12.44 a.m. on 4.2.98, which means that the
oath was taken by him much before the filing of the nomination paper.
Inasmuch as the oath was not taken by the said Shri Bhardwaj after his
having been nominated as a candidates, his nomination paper was liable to
be rejected. It was illegally accepted. He secured 598 votes. The difference
between the votes secured by the returned candidate (appellant) over the
D votes secured by the defeated candidate, was only 26 votes. On the question
whether the result of the election has been materially affected by illegal
acceptance of nomination paper of said Shri Bhardwaj, the learned Designated
Election Judge made a review of the law available on the point and referred
to the observations made by this Court in J. Chandrasekhra Rao v. Jagapathi
E Rao and Ors., [1993] Supp. 2 SCC 229 and Chhedi Ram v. Jhilmit Ram and
Ors., [ 1984] 2 SCC 281 and held that the margin of votes by which the returned
candidate has succeeded being small while the number of votes secured by
the candidate whose nomination was accepted was many a number of times
in proportion to the margin, the result of the election can be assumed to have
been materially affected. In arriving at this finding, the learned Judge also
F drew strength from the factum of non-examination of the returned candidate
in the Court.

Article 173 of the Constitution (the relevant part thereof) provides as
under :-

G "A person shall not be qualified to be chosen to fill a seat in the
legislature of a State unless he-

(a) is a citizen of India, and makes and subscribes before some
person authorised in that behalf by the Election Commission an oath
or affirmation accordingly to the form set out for the purpose in the.
'H Third Schedule;
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.) IOI

(b) .............................. ;and A
(c) ..............................."

The form of oath reads as under :-

"Form of oath or affirmation to be made by a candidate for election
to the Legislature of a State :- ' B
I ...................... having been nominated as a candidate to fill a seat in
the Legislative Assembly (or Legislative Council), do swear in the
name of God/Solemnly affirm that I will bear true faith and allegiance
to the Constitution of India as by law established and that I will C
uphold the sovereignty and integrity of India."
[Emphasis supplied]

Section 32 of the Act provides as under :-

32. Nomination of candidates for election.-Any person may be
nominated as a candidate for election to fill a seat if he is qualified D
to be chosen to fill that seat under the provisions of the Constitution
and this Act or under the provisions of the Government of Union
Territories Act, 1963 (20 of 1963), as the case may be."

According to sub-section (2) of Section 36 of the Act, one of the E
grounds on which a nomination can be rejected is that on the date fixed for
scrutiny of the nominations, the candidate was not qualified for being chosen
to fill the seat under Article 173 of the Constitution.

Under sub-section (I) of Section 33 of the Act, a candidate is deemed
to have been nominated only after his nomination paper complete in all F
respects in the prescribed form and signed by the candidate and proposer has
been delivered to the Returning Officer between 11.00 a.m. and 3.00 p.m.
The law has been settled in Pashupati Nath Singh v. Harihar Prasad Singh,
AIR (1968) SC I 064 by a three-Judge Bench that the oath or affirmation has
to be taken by the candidate after he has been nominated, i.e., after he has G
submitted the nomination papers, but before the date of scrutiny. It follows
that an oath or affirmation taken before the submission of nomination form
and on or after the day of scrutiny would be invalid depriving the nomination
paper of its validity. Following the lawJaid down by this Court in the case
of Pashupatti Nath Singh, (supra) and Khaje Khanavar Khadarkhan Hussain
Khan and Anr. v. S. Nijalingappa and Anr., AIR ( 1969) SC I034, the Election H

)
102 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

. A Commission has issued instructions contained in paragraphs 22.J and 22.2 of
Chapter-V of the Handbook for Returning Officers, which read as under :-

"22.1. The oath or affirmation should be made and subscribed before
the date fixed by the Election Commission for scrutiny or nomination ....
papers at that election. The decisions of the Supreme Court in
B Pashupati Nath Singh v. Harihar Prasad Singh, AIR (1968) SC 1064
and K.hader Khan Hussain Khan and Ors. v. Nijalingappa, [1970] 1
SCR 548 have clarified the position and removed all doubts in regard
to the actual making and subscribing the oath or solemn affirmation.

22.2. According to these decisions, the oath or solemn affirmation can
c be made and subscribed by a candidate only after his nomination
paper has been delivered and it cannot be so made and subscribed
on the date of scrutiny. You should, therefore, advise the candidate
to make the oath or affirmation immediately after presenting their
nomination papers and in any case not later than the day previous to
the date of the scrutiny."
D
The above-said instructions correctly bring out the legal position.

However, the finding arrived at by the learned Designated Election
Judge betrays too pedantic an ,approach and overlooks the effect of oral
E testimony adduc:d by the respondent. Tek Chand (RW3), the Returning
Officer, has very clearly stated that the nomination paper (Ex. PW-1/N) was
presented by Shri Jagdish Chander Bhardwaj before him on 4.2.98 at 12.45
p.m. After the nomination paper was presented to him, he had carried out
the preliminary examination thereof which took 2-3 minutes, whereafter he
had administered the oath to the candidate. The Oath Form (Ex. PW 1/0) was
F signed by the candidate in his presence. The date and time recorded on Ex.
PW l/N and Ex. PW 110 were in the handwriting of Khiali Ram, Election
Kanungo, who was assisting him. The time recorded as '12.44' a.m. on Ex.
PW 110 was clearly a clerical error. The witnesses very emphatically stated
that Oath was administered only after the submission of nomination paper
G (Ex. PW 1/N), the time where of insofar as the witness could recollect was
12.46 p.m. No objection to the validity of nomination was taken by anyone
at the time of scrutiny. Khiali Ram, Election Kanungo, has also appeared in
the witness box as RW-4. He too has stated that the time recorded on Ex.
PW 110 was wrong and appears to be an outcome of rush of work in the
office at the time of filing of the nomination papers. Jagdish Chander
H Bhardwaj (RW-2) has in his statement narrated the facts, which find support
KRISHNA MOHINI v. M.N. SOFAT [R.C. LAHOTI, J.] 103

from the testimony of the Returning Officer and the Election Kanungo assessing A
him. He has stated that on submission of the nomination papers the same
were examined in about one or two minutes by the Returning Officer and then
the Returning Officer asked him to take Oath in the prescribed form which he
did. Sitting in a corner of the office of the Returning Officer he signed the
oath form.
B
The learned Trial Judge is certainly not right in recording the finding
that the oath was administered before the filing of the nomination papers by
literally accepting the time of oath at 12.44 a.rn., as recorded on the oath
form. The oath could not and must not have been administered on the
midnight intervening 3rd and 4th day of February, 1998. If the oath was C
administered by the Returning Officer, it was certainly between 11.00 a.rn.
and 3.00 p.m. of 4.2.98. That shows that the time 12.44 a.rn. as recorded on
the oath form was an obvious effort. Once this fact is accepted, the weight
of overwhelming testimony corning from the mouth of the Returning Officer
and the Officer assisting him, both being public officers having no obvious
reason to tell a lie, should have been assigned due weight. Taken it into D
consideration as corroborating the testimony of Jagdish Chander Bhardwaj,
the learned Trial Judge should have held that the oath was administered after
the presentation of the nomination forms before the Returning Officer. We
hold it to be so and accordingly set aside the finding to the contrary recorded
by the learned Designated Election Judge. In our opinion, the nomination E
form of Jagdish Chander Bhardwaj was not illegally accepted. The acceptance
was legal. We need not, therefore, examine the legal·issue whether the result
of the election can be said to have been materially affected by the acceptance
of the nomination paper of Jagdish Chander Bhardwaj as it is not necessary.

Inasmuch as the finding as to illegal rejection of the nomination F
papers of Pritarn Chand and Mohan Singh, as recorded by the learned
Designated Election Judge, has been upheld, the election was void and has
been rightly held to be so by the High Court. Under clause (d) of sub-section
(I) of Section 100 of the Act, improper rejection of any nomination is by
itself enough to avoid the election without requiring further proof of the
result of the election having been materially affected. G
For the foregoing reasons, the appeal is liable to be dismissed and is
dismissed accordingly though without any order as to costs.

v.s.s. Appeal dismissed;
H