LexHARI VISHNU KAMATH versus GOPAL SWARUP PATHAK
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
334
HARi VISHNU KAMAm
v.
GOPAL SWARUP PATHAK
December 18, 1969
(S. M: SIKRI, J. M. SHELAT, V. BHARGAVA, G. K. MITTER AND
C. A. VAIDIALINGAM, JJ.J
Presidentic.l and Vice-Presidential Elections Rules} 1962 framed under
s. 21 of Presidential and Vice-Presidential Elections Act (31 of 1952)-
Rule 4(1) requiring no1nination papers to be presented personal/sv by
candidate or proposer or secoltder-No1nination paper sent
by
post
1rhether properly presented-Whether ''receivetf' within the meaning of
r. 4(2)-Returning Officer whether can reject such nomination paper be-
fore date of scrutiny-Rule 4(1) whether rntmdatory or direcrory.
At the election for the office of Vice-President held in 1969 the nomi-
nation paper of one 'S' was •ent by post. The Returning Officer rejected
it forthwith on the ground that it did not comply with the requirements
of r. 4(1) of the Presidential and Vice-Presidential Rules, 1952 inasmuch
as it. had not been presented by the candidate or his proposer or seconder,
in person. The said nomination paper was not put up for scrutiny_under
r. 6. The respondent won the election. The petitioner who was cine of
the losing candidates filed an election petition under Art. 71 of the Con·
stitution and s. 14 of the Presidential and Vice-Presidential Elections Ai:t.
195~ and prayed that the election of the respondent be declared void
undc'r s. 18 of the Act.
The questions that fell for consideration were :
( i) whether the nomination of S had been wrongly rejected on the ground
given; (ii) whether the Returning Officer had power to reject the nomi-
nation before the date of scrutiny: (iii) whcthe'r r. 4(1) was directory
or mandatory.
HELD: (il Rule 4( I) provides only one method of presentation i.e,
delivery either in person by the candidate or by his proposer or seconder.
Further it mentions the time within which the nomination pape'.r can be
delve red i.e.· between the hours of eleven in the forenoon and three in the
afternoon. Therefore. if the nomination paper is not presented in person
either by the candidutc or by the proposer o'.r seconder it cannot be deem-
ed to have been presented at all.
There is good reason for making this
rule because otherwise not only the authenticity of the person sending the
nomination paper but also the time of deHvery of the nomination paper
would be in doubt.
Since the rule provides only one method of pi'esen-
t·ation that method n1ust be followed.
The provisions of rr. 4(2), 5 and
6 support the above conclusion.
The nomination paper of 'S' could be rejected on the ground that it
had not been presented in person and. received before 3 O'clock in the
afternoon on the last date appointed under cl. (a) of sub-<'. (1) of r. 4.
Such a nomination paper could not be treated to have been 'received"
\liithin the meaning of sub·r. (2) or r. 4 and the Retu:rning Officer wa.;;
entitled to reject it. [340 F-341 C. HJ
{ii) There was no force, in the submission that the Returning Officer
should have waited till the date of the scrutiny. As soon as the Retrun·
ing Otlice'r finds that a nominat!on paper h":" not b.een duly presented ~nd
receiv-:d he must reject it outright at the time 1t 1s handed over to him.
[HI A-342 Al
A
B
c
D
E
F
G
H
A
H. V. KAMATH V, G. S. PATHAK (Sikri, J.)
335
(iii) Rule 4(1) is mandatory. To hold otherwise would lead to utteF
confusion and delay in the completion of the election.
The Returning
Officer would not know who and where to inform about the date of
scrutiny, he would not be certain whether it is genuine, and would have
to take evidence as to whether it is a genuine nomination paper
dr a
forged paper. [342 BJ
B
ORIGINAL JURISDICTION : Election Petition No. 6 of 1969.
c
D
E
F
G
H
Petition under Art. 71 of the Constitution of India and S. 14
of the Presidential and Vice-Presidential Election Act (Act XXXI
of 1952).
·
Sarjoo Prasad, P. Parameswara Rao and K. C. Dua, for the-
petitioner.
M. C. Seta/vad, N. A. Palkhiva/a, M. C. Chag/a, J. B. Dada-
chanji, Ravinder Narain and 0. C. Mathur, for the respondent.
Jagdish Swarup, Solicitor-Genera/, L. M. Singhvi and S. P'.
Nayar, for the Election Commission and Union of India.
The Judgment of the Court was delivered by
Sikri, J. This is a petition under Art. 71 of the Constitution
and s. 14 of the Presidential & Vice-Presidential Elections Act
(XXXI of 1952)-hereinafter referred to as the Act-praying
for a declaration that the elExcerpt shown. Read the full judgment & AI analysis in Lexace.