4550 GI/2012
(147)
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ELECTION COMMISSION OF INDIA
New Delhi, the 12th December, 2012
O.N. 44.—In pursuance of Section 106 of the
Representation of the People Act, 1951 (43 of 1951) the
Election Commission hereby published Order dated the
5th September, 2012 of the High Court of Judicature at
Patna in Election Petition No. 6 of 2009.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No. 6 of 2009
In the matter of an application under Section 81 of
the Representation of the People Act, 1951 read with
Article 329(b) of the Constitution of India
Mahesh Prasad Singh son of Late Chandrika Singh,
Resident of Village Nuruddinpur,
P.O.-P.S. Khusrupur, District Patna
...Petitioner
Versus
Satrughan Sinha son of
Late Bhuvneshwari Prasad Sinha,
Resident of House No.102,
D-Block, Kadamkuan. P.O. Kadamkuan,
P.S. Kadamkuan, Patna-800003
... Respondent
APPEARANCE :
For the Petitioner
:Mr. Arun Kumar Tiwari, Advocate
For the Respondent :M/s. S. N. P. Sharma, Sr. Adv.,
ManikVedsen, Amarendra
Kr. Singh, Subhash Chandra Bose,
Advocates
jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 26]
ubZ fnYyh, fnlEcj 16—fnlEcj 22] 2012] 'kfuokj@vxzgk;.k 25—ikS"k 1] 1934
No. 26]
NEW DELHI, DECEMBER 16—DECEMBER 22, 2012, SATURDAY/AGRAHAYANA 25—PAUSA 1, 1934
bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds
Separate Paging is given to this Part in order that it may be filed as a separate compilation
Hkkx II—[k.M 3—mi&[k.M (iii)
PART II—Section 3—Sub-section (iii)
dsUæh; vf/dkfj;ksa (la?k jkT; {ks=k iz'kkluksa dks NksM+dj) }kjk tkjh fd, x, vkns'k vkSj vf/lwpuk,a
Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)
148
THE GAZETTE OF INDIA : DECEMBER 22, 2012/PAUSA 1, 1934
[PART II—SEC. 3(iii)]
CORAM : HONOURABLE MR. JUSTICE
V. N. SINHA C.A.V. JUDGMENT
V. N. Sinha. J.
By filing this election petition under Section 81 of
the Representation of the People Act, 1951 (hereinafter
referred to as the Act) petitioner has questioned the
legality and validity of the election of sole respondent
from 30-Patna Sahib Parliamentary Constituency held
during General Election, 2009 vide declaration dated
30-6-2009 on the ground that nomination paper of the
election petitioner for the said election was erroneously
rejected and thereby election of the sole respondent is
fit to be declared as void under Sub-section (1)(c) of
Section 100 of the Act.
2. Election petitioner filed his nomination paper on
18-4-09 for contesting election from 30-Patna Sahib
Parliamentary Constituency as a candidate of Lok Dal
Party. Having filed the nomination paper petitioner was
granted receipt, Annexure-2 asking him to appear for
scrutiny of nomination paper on 20-4-2009 at 11 A.M.,
check list of documents, Annexure-I indicated that required
documents have been filed by the petitioner along with
nomination paper. Having filed the nomination paper
petitioner was telephonically informed to come to the
confidential section of the Office of the Returning Officer
on 19-4-2009 at 1.40 P.M. to receive an urgent letter. In
the light of the instruction petitioner came to the
confidential section at 2 P.M. but was kept waiting for
an hour and thereafter told that his presence is no more
required, whereafter petitioner returned back. In
compliance of the instruction given in the receipt to
appear for scrutiny of his nomination paper on 20-4-2009
at 11A.M. petitioner appeared for scrutiny of his
nomination paper, he was called in the chamber of the
Returning Officer and after scrutiny of his nomination
paper no objection was raised by the Returning Officer
as he was satisfied with the contents of the nomination
paper and asked the petitioner to leave. The list of
validly nominated candidate was published on the notice
board on 21-4-2009 at 4.30 P.M. whereafter petitioner
came to know that his name is not included in the list
of the validly nominated candidate, petitioner submitted
application before the Magistrate on duty, who neither
received application nor allowed the petitioner to appear
before the Returning Officer and thus petitioner was
deprived of the reason which persuaded the Returning
Officer to reject his nomination paper. On 22-4-2009
petitioner again visited the office of the Returning Officer
but there was none to receive his application with
requisition for grant of certified copy of the order by
which his nomination paper was rejected. The petitioner
thereafter communicated the illegal rejection of his
nomination paper to the Chief Election Commissioner,
New Delhi under fax message dated 22-4-2009 which was
transmitted at 14.18 hours annexing the copy of
representation dated 21-4-2009. Both the applications are
contained in Annexures-3, 3/1 to the election petition.
In paragraph-l3 of the election petition petitioner has
stated that when the free copy of the order rejecting his
nomination paper was not given to the petitioner he was
compelled to file requisition no. 429 dated 25-4-2009,
Annexure-4 for obtaining certified copy of the order
rejecting his nomination paper. In paragraph-14 of the
election petition petitioner has submitted that he was
never furnished the certified copy pursuant to requisition
dated 25-4-2009. In paragraph-15 of the election petition
petitioner has stated that on 25-6-2009 he came to the
office of the Returning Officer/election office and was
informed that he is required to deposit Rs. 800 for the
non-judicial stamp excluding 170 folios for obtaining
certified copy of the order rejecting his nomination which
could not be deposited/submitted for want of availability
of personnel in the election office. In paragraph-16 of
the election petition petitioner has asserted that as
neither the free copy nor certified copy of the order
rejecting his nomination paper was given, he had no
option but to file the election petition without annexing
the order rejecting his nomination paper. In paragraph-
17 of the election petition it is stated that petitioner was
not being given certified copy of the order rejecting his
nomination paper as the authorities wanted to restrain
him from filing the instant election petition within the
period of limitation i.e. 45 days from the date of declaration
of the result of the impugned election i.e. 30-6-2009. In
paragraph-18 of the election petition it has been asserted
that refund of the security deposit of Rs. l0,000 has also
not been allowed to the petitioner. In paragraphs-20, 21,
22 petitioner has asserted that there were 33 candidates
who desired to contest the impugned election but as the
Electronic Voting Machine (E.V.M.) could provide for
only 16 candidates Returning Officer adopted the tactics
to deliberately reject the nomination paper of remaining
candidates including the petitioner so as to enable him
to conduct the impugned election with only one E.V.M.
Such tactics was adopted by the present Returning
Officer even in the 31-Patliputra Parliamentary
Constituency where also 16 candidates were allowed to
contest the election. In paragraph 23 of the election
petition election petitioner has stated that he is a senior
citizen, a social activist who believes in free and fair-
election but the conduct of the Returning Officer while
conducting the scrutiny of nomination paper of petitioner
and others was not at par with the expectations under
the law, In paragraph-24 of the election petition petitioner
has asserted that he is unaware of the ground on which
his nomination paper was rejected, In paragraph-25 of
the election petition petitioner has asserted that because
of omission and commission of the Returning Officer he
was deprived of his statutory right to contest the
Parliamentary election. In paragraph-26 of the election
petition petitioner has asserted that he is attached to the
¹Hkkx II—[k.M 3(iii)º
Hkkjr dk jkti=k % fnlEcj 22] 2012@ikS"k 1] 1934
149
people and their ground realities and in the event, his
nomination paper would have been accepted there was
every chance of his victory as he is not only a trade
union leader but also rendering service to the
downtrodden. In paragraph-28 of the election petition
petitioner has asserted that he was prevented from
contesting the election because of the latent
administrative pressure as there is alliance between the
Janta Dal United (JDU) and the Bhartiya Janta Party
(BJP) for ensuring the victory of the sole respondent
who is an important leader of the BJP. In paragraph-29
of the election petition petitioner asserted that earlier
also he had contested Assembly Election, 2005 in February,
2005 from Bakhtiyarpur Assembly Constituency and he
filled up the nomination form for 30-Patna Sahib
Parliamentary Constituency in the same manner in which
he had filled up the nomination form for Assembly
Election, 2005 held in February, 2005, which was not
rejected. In paragraph-30 of the election petition petitioner
has asserted that the nomination paper filed by him for
contesting 2009 Parliamentary Election from 30-Patna
Sahib Parliamentary Constituency has been improperly
rejected. In paragraph 31 of the election petition petitioner
has made prayer to set aside the election of the sole
respondent held during 2009 Parliamentary Election from
30-Patna Sahib Parliamentary Constituency with direction
to the authorities to hold fresh election for the said
constituency.
3. Sole respondent tiled written statement stating
In paragraph-l that the election petition is not maintainable
and is fit to be dismissed. In paragraph-2 of the written
statement sole respondent has stated that election
petition is fit to be dismissed summarily under Sub-
section-(1) of Section 86 of the Act for non-compliance
of Section 81 of the Act as the election petition does
not contain the date of the impugned election as also
the full signature of the election petitioner on every page
of the election petition, except on the last page beneath
the prayer portion. In paragraph-3 of the written statement
sole respondent has stated that contents of paragraphs-
2, 3, 4, 6, 9 to 11, 14, 15, 18, 20 and 21 appears to be
in the nature of corrupt practice but in fact the allegations
contained in the said paragraphs are not corrupt practice
as defined under Section 123 of the Act. In paragraphs-
4, 32 of the written statement sole respondent has stated
that the allegations contained in paragraph-28 of the
election petition is allegation of corrupt practice as per
Sub-section (7) of Section 123 of the Act but election
petitioner has miserably failed to give full particulars and
statement of the corrupt practice, as is required under
Sub-section (1)(b) of Section 83 of the Act. It is further
stated in the said paragraph that election petitioner has
not stated either in paragraph-28 or in any other
paragraphs of the election petition the manner in which
sole respondent solicited help from the ruling dispensation
as also the officials conducting the election for success
of his election indicating the date, place and time of
soliciting such help from the ruling dispensation or the
officials conducting the election. It has also not been
stated in the election petition the name of the
functionaries of the ruling dispensation including the
officials who have rendered help to the sole respondent
for success of his election. For failure to furnish the
aforesaid particulars in the election petition it has further
been stated in the said paragraph that the election
petition is fit to be dismissed for non-compliance of the
mandtory provisions of Section 83 of the Act read with
order 7 Rule 11 of the C.P.C. In paragraph-5 of the written
statement sole respondent has stated that the verification
and affidavit in support of the election petition is
defective, as the same is not in accordance with order
6 Rule 14 of the C.P.C. In paragraph-7 of the written
statement sole respondent has denied the averments
made in paragraph-2 of the election petition asserting
that petitioner while submitting his nomination paper did
not comply the mandatory provisions of Section 33 of
the Act read with form 2A, Part III (a) of the prescribed
form of the nomination paper issued under Rule-4 of the
Conduct of Election Rules, 1961 as he did not declare
his actual age in the relevant column of Part III (a) of
the nomination form, which indicated that he has
completed 25 years of age, though in the verification and
affidavit enclosed with the nomination form he indicated
his age as 60 years. In paragraph-10 of the written
statement sole respondent has stated that the petitioner
has not stated in the election petition that the signature
of his 10 proposers were verified by the Returning
Officer or any other authorized officer including the fact
that petitioner had made available his 10 proposers
before the Returning Officer for verification of their
signatures. Aforesaid omission according to the sole
respondent is sufficient ground to reject the nomination
paper of the election petitioner. In paragraph-ll of the
wrirten statement sole respondent has stated that the
contents of paragraph-6 of the election petition is not
relevant for the decision of the election petition as the
contents thereof is a matter between the petitioner and
the staff and others of the confidential section of the
office of the Returning Officer. In paragraph-12 of the
written statement sole respondent has stated that
Annexure-2 in form 6 of the nomination paper is the
receipt showing filing of the nomination paper by the
election petitioner asking him to appear for scrutiny of
his nomination paper on the date and time indicated in
the notice. In the said paragraph it has further been
stated that the contents of paragraph-7 of the election
petition is incorrect besides being motivated. It has
further been stated in the said paragraph that scrutiny
of all the nomination papers filed for contesting the
impugned election was conducted by the Returning
Officer on the date and time indicated in Annexure-2 in
presence of the candidates including the petitioner and
150
THE GAZETTE OF INDIA : DECEMBER 22, 2012/PAUSA 1, 1934
[PART II—SEC. 3(iii)]
during the scrutiny of the nomination paper of the
election petitioner it was found that he did not disclose
his age in part-III column-(a) of his nomination paper,
rather he mentioned therein that he has completed 25
years of age but in accordance with law petitioner should
have declared his age in the said column. According to
the sole respondent the omission of the petitioner to
mention his age in column-(a) of part III of the nomination
form is a substantial defect in the nomination paper and
Returning Officer having noticed the said defect in the
nomination form of the election petitioner rejected the
nomination paper of the election petitioner in his presence.
Petitioner being fully satisfied with the said defect and
the rejection of his nomination paper left the place of
scrutiny after the rejection of his nomination paper. In
paragraph-14 of the written statement sole respondent
has stated that the averments made in paragraph-9 of
the election petition is wrong and motivated as according
to the sole respondent Returning Officer had given full
opportunity to all the candidates including the petitioner
to examine the nomination paper of all the candidates.
Any statement made to the contrary in the election
petition is denied by the sole respondent. In paragraph-
15 of the written statement sole respondent has denied
the statement made in paragraph 10 of the election
petition and has stated that the said statement has been
made only for the purpose of election petition. It has
further been stated in the said paragraph that as petitioner
himself admitted that he was present at the time of
scrutiny and he was well aware of the fact that his
nomination paper suffers from material and substantial
defect and his nomination paper was rejected by the
Returning Officer without any protest by the petitioner
as he was satisfied with the decision of the Returning
Officer. In paragraph-16 of the written statement sole
respondent has denied the contents of paragraph-11
read with contents of representation, Annexures-3, 3/1
of the election petition and has further stated that the
contents of representation Annexures-3, 3/1 are merely
preparation for filing election petition and as such the
entire statement along with Annexures are afterthought,
irrelevant and nothing to do with the validity of the
nomination paper of the petitioner because the nomination
paper of the petitioner was rejected by the Returning
Officer during scrutiny in presence of the petitioner as
his nomination paper suffered from substantial and
material defect and as such the Returning Officer had
no option but to reject the nomination paper of the
election petitioner. In paragraph-17 of the written
statement sole respondent has replied the contents of
paragraph-12 of the election petition and stated that the
contents of said paragraph is irrelevant and not in
accordance with law and only by way of preparation of
ground or document for filing the election petition. In
paragraph-19 of the written statement sole respondent
has denied the contents of paragraph-14 of the election
petition stating that the contents of said paragraph is
the personal story conveniently set forth by the election
petitioner, which is nothing but preparatory step for
filing the election petition as nomination paper of the
election petitioner was rightly rejected in his presence
during the scrutiny proceeding. In paragraph-20 of the
written statement sole respondent has considered the
averments made in paragraph-15 of the election petition
and stated that the contents of paragraph under reply
is mere excuse of the petitioner as he himself did not
deposit the required non-judicial revenue stamp and the
folios for grant of certified copy of the order rejecting
his nomination paper. In paragraph-21 of the written
statement sole respondent has stated that the contents
of paragraph-16 of the election petition is a lame excuse
of the petitioner for not annexing the copy of his
nomination paper and the order rejecting the same, which
is vital omission and the election petition is fit to be
dismissed summarily for failure to disclose complete
cause of action. In paragraph-22 of the written statement
sole respondent has denied the story of harassment by
the Returning Officer as disclosed by the petitioner in
paragraph-17 of the election petition. In paragraph-24 of
the written statement sole respondent has replied the
statement made in paragraph-19 of the election petition
and has termed the statement as irrelevant because
petitioner being out of contest after rejection of his
nomination paper has no personal concern with the
electronic voting machine. In paragraph-25 of the written
statement sole respondent has considered the averments
made in paragraph-20, 21 of the election petition and has
stated that those statements are imaginary and far from
truth because every nomination paper was rejected in
accordance with law. In paragraphs-27, 28, 29, 30, 31 of
the written statement sole respondent has considered
the averments made in paragraphs-22, 23, 24, 25, 26, 27
of the election petition and has stated that those
statements are not only incorrect but are also emphatically
denied by the sole respondent as according to the sole
respondent Returning Officer while receiving the
nomination paper as also during scrutiny of the same
had taken the required steps in presence of the observers
appointed by the Election Commission of India. In
paragraph-32 of the written statement sole respondent
has stated that the statement made in paragraph-29 of
the election petition is not at all relevant for the
consideration of the present election dispute. The so
called past history of the petitioner has no relevance and
bearing for the consideration of his nomination paper for
the impugned election. In paragraph-34 of the written
statement sole respondent has stated that the statement
made in paragraph-3 of the election petition is wholly
incorrect and false as his nomination paper was properly
rejected strictly in accordance with law and also in his
presence, as such, according to the sole respondent
petitioner is not justified to raise contrary submission.
¹Hkkx II—[k.M 3(iii)º
Hkkjr dk jkti=k % fnlEcj 22] 2012@ikS"k 1] 1934
151
In paragraph-35 of the written statement sole respondent
has stated that the election petition is not tenable in law
for the reason that his nomination paper was properly
rejected In his presence and also strictly in accordance
with law.
4. In the light of the pleadings of the parties as
many as 14 issues were framed by this Court under order
no.13 dated 20-5-2010 on the basis of petition dated
20-4-2010 of the election petitioner and two issues were
framed at the request of the sole respondent. During
hearing of the election petition, however, one issue
which emerged for consideration is as to whether the
nomination paper of the election petitioner was improperly
rejected. Aforesaid issue is to be considered in this
election petition in the light of the pleadings and the
evidence led on behalf of the parties,
5. In support of the election petition election
petitioner examined three witnesses i.e. P.W.-l Sri Ajit
Priyardarshi son of election petitioner, P.W.-.2 the election
petitioner himself and P.W.-3 Sri Bidhan Chand Rana, son
of Rajendra Nath Das. P.W.-l Sri Ajit Priyardashi stated
in his examination in chief that he accompanied the
election petitioner and others to the office of the Returning
Officer of 30-Patna Sahib Parliamentary Constituency on
17-4-2009 at 1.30 P.M. for filing the nomination paper of
the election petitioner for contesting the Parliamentary
Election, 2009 and reported their arrival to the Magistrate
on duty who asked them to wait till 3 P.M. According
to P.W.-l election petitioner could not file his nomination
paper on 17-4-2009 as on that day Sri Shekhar Suman
a candidate for the Parliamentary Election remained inside
the chamber of the Returning Officer for filing his
nomination paper and came out of the chamber of the
Returning Officer at about 3 P.M. and as the time for
presenting the nomination paper was over witness along
with election petitioner and others had to return back.
The witness again went to the office of the Returning
Officer on 18-4-2009 at 10.30 A.M. Nomination paper of
the election petitioner was received at 12.01 P.M. and
receipt to that effect was also given to the election
petitioner, P.W.-1 further states that on the date of
scrutiny of the nomination paper i.e. 20-4-2009 he along
with election petitioner came to the office of the Returning
Officer, 30-Patna Saheb Parliamentary Constituency at
10.30 A.M. Election petitioner was called inside the
chamber of the Returning Officer and came back from
the chamber and was asked to wait and the election
petitioner waited outside the chamber of the Returning
Officer till 5 P.M. of 20-4-2009 but by that time notice
of the validly nominated candidate was not affixed on
the notice board. In paragraph-20 of the examination in
chief P.M.-1 admits that he was one of the 10 proposers
of the election petitioner. In paragraphs-6, 7 of the cross-
examination P.W.-l admits that at the time of filing of the
nomination paper by the election petitioner for the
impugned election the age of election petitioner was 62
years but such fact has not been stated in part-III of
the nomination paper by the election petitioner. In
paragraph-10 of the cross-examination P.W. 1 has further
clarified the statement made by him in sub-paragraph-
(vi) of paragraph-l of his examination in chief and has
stated that he along with election petitioner and others
visited the office of the Returning Officer on 18-4-2009
at 10.30 A.M. (the others in the paragraph is for the nine
proposers). In paragraph-l6 of the cross-examination P.W.-
1 further states that at the time of scrutiny of nomination
paper of the election petitioner he and other proposers
were outside the chamber of the Returning Officer. In
paragraphs-22, 23 of the cross examination P.W.-l denied
the suggestion that nomination paper of the election
petitioner was also liable to be rejected on the ground
of non-verification of signature of all the proposers as
all the proposers remained present not only on the date
of filing of the nomination paper on 18-4-2009 but also
at the time of scrutiny of the nomination paper on
20-4-2009.
6. P.W.-2 is the election petitioner himself. In
paragraphs-4, 5 of the examination in chief P.W.-2 stated
that he filled up his nomination paper correctly and filed
the same on 18-4-2009 in the office/chamber of the
Returning Officer situate at Collectorate, Patna, whereafter
receipt was granted indicating that scrutiny of the
nomination paper shall be conducted on 20-4-2009. In
paragraph-7 of the examination in chief P. W.-2 stated
that no defect was pointed out by the Returning Officer
at the time of scrutiny of his nomination paper which
was also not shown to him but it was communicated by
the Returning Officer that the nomination paper of the
election petitioner has been correctly filled up. In
paragraph-8 of the examination in chief P. W.-2 stated
that on the date of scrutiny he waited in the office of
the Returning Officer until 6 P.M. by which time neither
any list of validly nominated candidate was affixed on
the notice board nor copy of rejection order of the nomi-
nation paper was handed over to him. In paragraph-16
of the cross-examination P.W.-2 stated that at the time
of presentation of his nomination paper he had gone
along with his 10 proposers to the office of the Returning
Officer as was directed by the authorities. In paragraph-
17 of the cross examination P. W.-2 stated that out of
10 proposers only four were allowed to enter the chamber
of the Returning Officer. In paragraph-18 of the cross
examination P. W.-2 stared that he had gone along with
10 proposers for presenting his nomination paper as he
was candidate from unrecognized party and law required
that candidate of unrecognized party must appear for
filing his nomination paper along with his all the 10
proposers whose signature if necessary may be verified
by the Returning Officer. In paragraph-20 the witness
further states that on the date of scrutiny as well he went
to the office of the Returning Officer along with all his
152
THE GAZETTE OF INDIA : DECEMBER 22, 2012/PAUSA 1, 1934
[PART II—SEC. 3(iii)]
proposers. In paragraph-22 P.W.-2 states that when
Returning Officer did not ask for verification of the
signature of 10 proposers, he had no occasion to insist
for such verification. In paragraph-27 of the cross-
examination P.W.-2 stated that he filled up his nomination
paper himself. In paragraph-28 of the cross examination
he stated that he mentioned his age in nomination paper
as above 25 years, which is the qualifying age for
contesting the impugned election. In paragraph-29 of the
cross examination P.W.-2 stated that there was no
instruction in the nomination form to the candidate to
furnish his exact age in the nomination paper, as such,
he indicated in the nomination paper that he has completed
more than the minimum age required for becoming a
candidate. In paragraph-30 of the cross examination
P.W.-2 stated that there is blank in the age, column of
the nomination paper because different age is provided
for member of the legislative council, M.LA., M.P. and
others. In paragraph-31 of the cross examination P.W.-
2 stated that there is no direction of the Election
Commission of India to furnish the exact age of the
candidate in the nomination paper. In paragraph-32 of
the cross examination P.W.-2 stated that in the request
form. form-26 and affidavit furnished by him along with
nomination paper he indicated his age as 60 years. In
paragraph-33 of the cross-examination the witness stated
that he was not required to indicate in part-III of the
nomination form his exact age. In paragraph-34 of the
cross examination P.W.-2 stated that according to him
his nomination paper was not rightly rejected on the
ground that he indicated his age more than 25 years in
part-III of the nomination paper.
7. P.W.-3 Sri Bidhan Chand Rana was also a
candidate to contest the 2009 Parliamentary Election from
30-Patna Sahib Parliamentary Constituency. In paragraph-
4 of his examination in chief P.W.-3 stated that he was
not allowed to see the nomination paper of election
petitioner and others, which he wanted to see. In
paragraph-5 of his examination in chief P. W.-3 stated
that he had no occasion to see the order of rejection
after scrutiny of nomination paper of election petitioner
was concluded. In cross-examination P.W.-3 stated that
he had indicated his age as 33 years in part III of the
nomination paper.
8. On behalf of sole respondent three official
witnesses have been examined, namely, R.W.-l Bijendra
Jha who at the relevant time served as Additional District
Magistrate (General), Patna and was assigned the work
of verification of signature of the proposers put on the
nomination paper filed by the independent candidate for
contesting the 2009 Parliamentary Election from 30-Patna
Sahib Parliamentary Constituency. R.W.-2 Sri Jitendra
Kumar Sinha is the Returning Officer of 30-Patna Sahib
Parliamentary Constituency in 2009 Parliamentary Election.
R.W.-3. Sri Anil Kumar at the relevant time served as
Deputy Election Officer, Patna and was Incharge of the
confidential section of the office of the Returning Officer.
9. R.W.-I stated in his examination in chief that
during 2009 Lok Sabha Eleciton he was entrusted with
the work of verification of the signature of proposers
of the independent candidate so as to verify the
genuineness of the signature of the proposer on the
nomination paper. In paragraph-3 of the examination in
chief the witness stated that as per instruction issued
number of independent candidates came on 20-4-2009
along with their proposers for verification of the signature
of the proposers who put their signature adjacent to their
respective signature on the nomination paper filed by
the candidate. In paragraph-12 of the cross examination
R.W.-l again reiterated that he was authorized by the
Returning Officer alone to help him in verification of the
signature of the proposers of the different candidates.
In paragraph-13 witness further clarified that Returning
Officer had issued written instruction by way of letter
asking him to help him in verification of the signature
of the proposers. In paragraph-15 R.W.-1 stated that he
is not supposed to know the grounds of rejection of
nomination paper of the election petitioner as it was the
duty of the Returning Officer to consider the same. In
paragraph-16 the witness further states that he does not
remember the exact number of observers present in the
chamber of the Returning Officer at the time of presentation
of nomination paper but observers were available at the
time of presentation of the nomination paper. In
paragraphs-16, 17 R. W.-1 further stated that observers
were present in the chamber of the Returning Officer at
the time of presentation, scrutiny of the nomination
paper but he does not remember the number and the
name of the observers present.
10. R.W.-2 Sri Jitendra Kumar Sinha the Returning
Officer stated in his examination in chief that the last
date for filing the nomination paper for the impugned
election was 18-4-2009 and the date of scrutiny of the
nomination paper was scheduled for 20-4-2009. In
paragraph-3 of his examination in chief the Returning
Officer stated that it was considered necessary for
verifying the genuineness of the proposers of the
independent candidate who had filed their nomination
paper and as per instruction Sri Anil Kumar Deputy
Election Officer and also Incharge of confidential section
had called the independent candidates including the
election petitioner on 19-4-2009 and directed them to
bring all their proposers on the date of scrutiny for
verification of their signature so as to verify the
genuineness of the signature of the proposer and to
receive instruction in this regard. In paragraph-4 of his
examination in chief R.W.-2 has stated that Sri Anil
Kumar Deputy Election Officer informed the election
petitioner telephonically and responding to telephonic
communication the election petitioner came and met him
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and was informed that he had not disclosed his correct
and specific age in the nomination form. The election
petitioner refused to respond and he did not correct his
age, as such his nomination paper was rejected for non-
disclosure of specific correct age in the nomination
paper. In paragraph-5 of the examination in chief the
Returning Officer stated that for signature verification to
ascertain the genuineness of proposers officers were
deputed on the date of scrutiny of nomination paper but
the election petitioner did not come with his proposers
for verification of the genuineness of their signature. In
paragraph-6 of his examination in chief R. W.-2 stated
that candidates were given full opportunity and liberty
to examine the nomination paper of other candidates and
scrutiny of nomination paper was done in presence of
Central Election Observer deputed by the Election
Commission of India as well as candidates who had filed
nomination paper and had come on the day of scrutiny.
In paragraph-7 of the examination in chief RW-2 stated
that he prepared and maintained separate order sheet for
the scrutiny of the nomination paper of each candidate
and accordingly, he prepared separate order sheet
regarding scrutiny of the nomination paper of the election
petitioner, which contains the ground for rejection of the
nomination paper of the election petitioner. In paragraph-
3 of the cross-examination RW.-2 stated that he issued
office order appointing Sri Anil Kumar as Deputy Election
Officer. In paragraph-5 of the cross-examination R.W.-2
stated that notice was issued to the election petitioner for
making available his proposers for verification of their
signature and for service of such notice election petitioner
was telephonically informed. After receipt of the
telephonic information election petitioner also came to
the office of the Returning Officer but refused to accept
the written notice. In paragraph-6 of the cross-examination
R. W.-2 stated that it is true that in order dated
20-4-2009 by which he rejected the nomination paper of
the election petitioner he did not record that election
petitioner did not receive the notice for making available
his proposers for verification of their signature. The
witness, however, volunteered in the said paragraph that
he did not record the aforesaid fact in the order dated
20-4-2009 as the nomination paper of the election
petitioner was rejected on some other ground i.e. his
omission to specify his age in the nomination paper.
which is the primary document for the nomination. In
paragraph-7 of the cross-examination R.W.-2 further stated
that defect of substantial nature was noticed in the
nomination paper of the election petitioner. In the light
of the defect no further steps was required to be taken
to inform the election petitioner but with a view to give
him opportunity telephonic information was given to the
election petitioner to come and rectify the defect noticed
in his nomination paper. The election petitioner, although
came to the office but in his own wisdom chose not to
either remove the defect or to receive the notice. In
paragraph-8 of the cross-examination R.W.-2 stated that
election petitioner has already mentioned in his election
petition that pursuant to telephonic information he came
to the office of the Returning Officer, besides such
admission the Returning Officer had no other evidence
of having given telephonic information to the election
petitioner. In paragraph-10 of the cross-examination R.W.-
2 further stated that on 19-4-2009 when the election
petitioner was called to remove the defect in the office
of the Returning Officer his nomination paper was very
much available and with reference to the said nomination
paper he was asked to remove the defects. In paragraph
12 of the cross-examination R.W.-2 stated that election
petitioner did not mention in the nomination paper that
he has completed 60 years of age. In paragraphs-13. 14
R.W.-2 stated that form-26 is an addendum enclosure
to the nomination paper which does not form part of the
nomination paper as primary document. In paragraph-15
of the cross-examination R.W.-2 stated that in the affidavit
annexed with form-26 the election petitioner indicated his
age as 60 years. The witness, however, volunteers that
the affidavit primarily dealt with his movable and
immovable assets. In paragraph-16 of the cross-
examination R.W.-2 stated that Sri Anil Kumar Deputy
Election Officer had asked the election petitioner to
correct his age in the nomination form but he refused
to correct. In paragraph-17 of the cross-examination
R. W.-2 denied the suggestion stating that the same is
bordering on unfairness that election petitioner was not
given opportunity to correct his age in the nomination
form when he has come to his office on 19-4-2009. In
paragraph-15 of the cross-examination R.W.-2 stated that
election petitioner visited the office of the Returning
Officer on 19-4-2009 and in spite of request did not
remove the defect about his age in the nomination form,
it was not deemed necessary to make correction therein.
11. R.W.-3.Sri Anil Kumar who was appointed as
Deputy Election Officer has stated in paragraph-2 of his
examination in chief that on instruction of the Returning
Officer he contacted independent candidate on telephone
and directed them to bring their all proposers on 19-4-
2009 for verification of their signature and to receive
letter in this regard. In paragraph-3 of the examination
in chief R.W.-3 further stated that responding to the
telephonic instruction election petitioner came and was
advised to receive the letter and also to contact the
Returning Officer as the nomination paper filed by him
was not in order. In paragraphs-4, 5 R.W.-3 stated that
he took the election petitioner to the Returning Officer
who pointed out to the election petitioner that in the
nomination paper he had not correctly filled up his age
and he was given opportunity to make necessary
correction but election petitioner did not make correction
of his age in the nomination paper and went away even
without receiving the letter. In paragraph-4 of cross-
examination R.W.-3 has stated that he telephonically
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informed the election petitioner from confidential
section of the office of the District Magistrate, Patna on
19-4-2009 to appear in the office of the District Magistrate
for verification of signature of his proposers. In
paragraph-5 the witness further stated that he never
asked the election petitioner to correct his age indicated
in the nomination paper. In paragraph-6 of the cross-
examination R.W.-3 stated that he took the election
petitioner to the chamber of the Returning Officer in his
confidential office from his chamber where nomination
paper of the election petitioner was available from before.
12. With reference to the pleadings made and the
evidence led by the parties, learned counsel for the
petitioner submitted that order dated 20-4-2009 rejecting
the nomination paper of the petitioner on the ground that
he did not mention his correct age in part III of his
nomination paper for contesting the impugned election
suffers from the vice of arbitrariness and is fit to be
declared as erroneous as from the evidence of R.W.-2
Returning Officer in paragraphs-10, 12, 13,15,16, itself
it would appear that petitioner had mentioned his age
as 60 years in form 26, which was supported by an
affidavit as also other affidavit furnished by the petitioner
along with nomination paper, which according to the
Returning Officer was also an addendum enclosure to
the nomination paper and in appreciation of the disclosure
of the correct age by the petitioner in form 26 and other
affidavit filed along with nomination paper enclosed with
form 26 Returning Officer should have ignored the
incorrect age mentioned by the petitioner in part III of
the nomination paper and accepted the same so as to
enable the petitioner to contest the impugned election.
In this connection, it is also pointed out that the story
set forth by the Returning Officer in paragraphs-7, 10,
16 of his cross-examination that on 19-4-2009 election
petitioner was called in the office of the Returning Officer
to remove the defect in his nomination paper and in
presence of the Returning Officer, R.W.-3 Sri Anil Kumar
Deputy Election Officer asked the election petitioner to
correct his age in the nomination paper but election
petitioner refused to correct the same is not to be
accepted in view of the evidence of R.W.-3 Sri Anil
Kumar Deputy Election Officer in paragraphs-4, 5 of his
cross-examination where R. W.-3 categorically stated that
he telephonically informed the petitioner on 19-4-2009
from the confidential section of the office of the District
Magistrate. Patna to come to the office of the District
Magistrate for verification of signature of his proposers
but in paragraph-5 R.W.-3 categorically stated that he
never asked the election petitioner to correct his age
indicated in the nomination paper. It is submitted with
reference to the evidence of R. W.-3 that as petitioner
was not given any opportunity to correct his age
mentioned in part III of the nomination form the same
should have been ignored in view of the age of the
petitioner indicated in form 26 supported by an affidavit
and other affidavit furnished by the petitioner along with
nomination paper. In this connection, learned counsel for
the petitioner also relied on paragraphs-3, 19 of the
circular of the Election Commission of India dated
27-3-1003 issued under Article 324 of the Constitution
of India and submitted that in form 26, which is supported
by an affidavit and other affidavit to be furnished by
the candidate along with nomination paper petitioner
indicated his age as 60 years and in such view of the
matter entries made by the petitioner in Part III(a) of the
nomination form that petitioner has completed 25 years
of age should have been ignored as the said statement
does not indicate the age of the petitioner on the date
of presentation of the nomination paper. Learned counsel
for the petitioner also referred to Section 30 of the Act
which provides for appointment of dates for nomination,
scrutiny, withdrawal of candidature date of poll and
completion of election. He also referred to Sub-sections-
(1), (4) of Section 33 of the Act, which provides for
presentation of nomination paper and requirement of a
valid nomination and submitted that petitioner has been
deprived of his statutory right to contest the impugned
election, although he presented his nomination paper
before the Returning Officer in the prescribed format
within the required time but the same was improperly
rejected. As regards the statement made by the petitioner
in Part III (a) of the nomination paper that he has
completed 25 years of age, learned counsel for the
petitioner submitted that such statement has been made
by the petitioner in the light of the provisions contained
in Article 84 of the Constitution of India and Sub-
section-(2) of Section 36 of the Act, which provide for
qualification for membership of Parliament and for
contesting election to the House of the People one must
not be less than 25 years of age and in view of contents
of Article 84 of the Constitution petitioner stated in Part
III (a) of the nomination form that he has completed 25
years of age but also made clear in the affidavit that his
actual age on the date of filing of nomination was 60
years. In this connection, he also referred to paragraphs-
12.1 and 12.1(a) at page 27 of the Handbook For the
Candidate, 2009 and submitted that the candidate while
assenting to his nomination made by his proposer he
is required to make a declaration in the nomination paper,
itself about his age that he must not be less than 25
years of age. It is submitted that in the light of the
provisions contained in Article 84 of the Constitution,
Sub-section-(2) of Section 36 of the Act and paragraphs-
12.1 and 12.1(a) at page 27 of the Handbook For The
Candidate, 2009 petitioner mentioned in Part III (a) of the
nomination form that he has completed 25 years of age
which was more than the minimum age required for being
eligible for contesting the impugned election and in such
view of the matter, Returning Officer ought not to have
rejected the nomination paper of the petitioner. Learned
counsel for the petitioner also referred to Section 38 of
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the Act, which provides for publication of list of
contesting candidates and it is submitted that in the
instant case Returning Officer published the list of
contesting candidates on 21-4-2009. It is also submitted
that election petitioner without wasting any time, no
sooner the list was published attempted to file application,
Annexure-3/l to the election petition to know the cause
of rejection of his nomination paper when certified copy
of order dated 20-4-2009 rejecting his nomination paper
was not supplied to him free of cost. Petitioner was also
not allowed to visit the Returning Officer on 21-4-2009
and was thus compelled to communicate the uneven
happenings by fax message dated 22-4-2009, Annexure-
3 to the Chief Election Commissioner, New Delhi. It is
further stated that Returning Officer in his cross-
examination has claimed to have provided sufficient
opportunity to the petitioner on 19-4-2009 i.e. a public
holiday to correct his age in part III of the nomination
form through R.W.-3 Sri Anil Kumar Deputy Election
Officer but R. W.-3 has refuted such claim.
13. In support of the aforesaid submission learned
counsel for the petitioner relied on the judgment of the
Supreme Court in the case of Rattan Anmol Singh and
another Vs. Ch. Atma Ram and others, AIR 1954 Supreme
Court 510. Nomination paper of respondent Atma Ram
was rejected on the ground that his proposer put thumb
mark on the nomination paper, which was not attested.
The Returning Officer held that without attestation the
thumb mark was invalid and so rejected the nomination
paper. The question which arose in the election dispute
is as to whether Returning Officer was right in rejecting
the nomination paper. A subsidiary question also arose,
namely. whether assuming attestation to be necessary
under the Rules and omission to obtain the required
attestation amounts to technical defect of unsubstantial
character, which the Returning Officer was bound to
disregard under Section 36 (4) of the Act. The Supreme
Court held that the Returning Officer was bound to reject
the nomination paper under Section 36(2)(d) of the Act
as there was a failure to comply with Section 33 of the
Act as attestation is not a mere technical or unsubstantial
requirement. When the law enjoins the observance of
a particular formality it cannot be disregarded. With
reference to the aforesaid judgment it is submitted that
in the present case when the law requires to conduct
the scrutiny at a particular date, place and time i.e.
20-4-2009 as notified in the election programme including
part-VI of the nomination paper there was no occasion
for the Returning Officer to offer the candidate to correct
his age in the nomination paper on 19-4-2009. which was
a public holiday and that too at the residential chamber
which is made for the Collector of the district and not
for the Returning Officer. It is submitted that Section 30
of the Act also does not provide for the scrutiny of
nomination paper on a day other than one appointed in
the notification of the Election Commission published in
the Official Gazette.
14. Learned counsel further reiterated his aforesaid
submission with reference to the judgment of the Supreme
Court in the case of Deep Chand Vs. State of Rajasthan,
AIR 1961 Supreme Court 1527, State of Uttar Pradesh
Vs. Singhara Singh and others, AIR 1964 Supreme Court
358 and in the case of Chief Information Commissioner
and another Vs. State of Manipur and another, 2012 (1)
PLJR Supreme Court 313 and submitted that it is well
recognized Rule that where power is given to do a certain
thing in a certain way the thing must be done in that
way or not at all and other methods of performance are
necessarily forbidden. In the light of the aforesaid well
settled proposition of law learned counsel submitted that
Returning Officer was certainly prohibited from performing
the act of scrutiny in a manner other than the one
provided under the Act and submitted that Returning
Officer could not have asked the petitioner to correct
his age in the nomination paper on a public holiday by
transgressing the mandate of law.
15. Learned counsel for the petitioner also relied
on the judgment of the Supreme Court in the case of
A.C. Jose Vs. Sivan Pillai and others, AIR 1984 Supreme
Court 921 and submitted that Election Commission of
India is vested with the power of superintendence,
direction and control of all elections to Parliament and
State Legislature as also to the office of President and
Vice-President but such power of superintendence is to
be exercised to supplement the provisions of the Act and
not to supplant the same and having held as above the
Supreme Court set aside the impugned election in which
on several polling booths electronic voting machine was
used under the direction of the Election Commission of
India without there being any provision for casting of
vote through electronic voting machine as user of
electronic voting machine on the several polling booths
without there being any provision in the Act for use of
electronic voting machine in the election amounted to
supplanting the provisions of the Act.
16. Learned counsel for the petitioner next relied on
the judgment of the Supreme Court in the case of P.T.
Rajan Vs. T.P.M. Sahir and others. (2003) 8 Supreme
Court Cases 498 and G.V. Sreerama Reddi and another Vs.
Returning Officer and others, (2009) 8 Supreme Court
Cases 736 and submitted that Act is a special statute and
self contained code. While interpreting such a statute
the court must consider the intention of the Legislature
and read the provisions of statute specifically and strictly.
With reference to the said judgment it is submitted that
Article 84 of the Constitution has been referred to in
Section 36(2)(a) of the Act in the light thereof petitioner
specifically declared in part III of the nomination paper
that he is not less than 25 years of age, rather he has
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[PART II—SEC. 3(iii)]
completed 25 years of age, which is the qualifying age
for contesting the election to the House of People and
in such view of the matter the nomination paper of the
petitioner ought not to have been rejected by the
Returning Officer under order dated 20-4-2009.
17. He further submitted with reference to Section
30 of the Act whereunder the election programme i.e. last
date for making nomination, the date for scrutiny, last
date for withdrawal of candidatures, date of poll and the
date before which the election shall be completed is fixed
would indicate that last date for making nomination, date
for scrutiny and the last date for withdrawal of candidature
cannot be fixed on a public holiday and with reference
to the said provision it is submitted that Returning
Officer ought not to have asked the petitioner to remove
the defect in the nomination paper on 19-4-2009 which
was a public holiday and thereby he has transgressed
the provisions of the Act.
18. It is also submitted that the Returning Officer
did not make any endorsement in the nomination paper
of the petitioner either accepting or rejecting the same in
front of the petitioner so as to enable the petitioner to
know the factum of rejection including its cause.
19. Learned counsel for the petitioner further
submitted that the nomination paper is to be presented
between 11 A.M. to 3 P.M., the compact disc prepared
during presentation and scrutiny of nomination reflects
that the nomination papers as presented by some
candidates have been accepted much later than 3 P.M.,
which is in contravention of the directions issued by the
Election Commission of India and for such contravention
of the direction of the Election Commission of India
Returning Officer is worthy to be condemned.
20. Learned counsel for the petitioner next relied on
the judgment of the Supreme Court in the case of
Narendra Madivalapa Kheni Vs. Manikrao Patil and
others, (1977) 4 Supreme Court Cases 16 and submitted
that inclusion of names in the electoral roll after the last
hour of the last date for filing nomination is illegal and
not valid.
21. Learned counsel with reference to the judgment
of the Supreme Court in the case of Union of India Vs.
Association for Democratic Reforms and another, (2002)
5 Supreme Court Cases 294 submitted that the Supreme
Court directed the Election Commission of India to call
for information from the candidates on affidavit by issuing
necessary instruction under Article 324 of the Constitution
about (1) Conviction, acquittal or discharge (2) Whether
or not a candidate is accused prior to 6 months of filing
nomination and the assets and liability of his spouse and
dependent and his education qualification. With reference
to the judgment of the Supreme Court in the case of
Peoples Union for Civil Liberties (PUCL) and another Vs.
Union of India and another, (2003) 4 Supreme Court
Cases 399 it was submitted that in the said case Supreme
Court framed the question as to whether little voter is not
entitled to know the bio-data of his/her would be rulers,
law makers or destiny maker of the nation and held that
voter has fundamental right to know the antecedent of
a candidate. Learned counsel for the petitioner with
reference to the aforesaid two judgment in the case of
Union of India and Peoples Union for Civil Liberties
(supra) submitted that the candidate filing nomination for
contesting the election is not to be identified physically,
rather he has to be identified with reference to his bio-
data given in form 26. Physical identification may be
ascertained with respect to any cut mark, mark on body,
complexion, height and physic etc. According to learned
counsel such identification of the candidate is not the
point in issue in the case in hand. It is submitted that if
petitioner has not mentioned his correct age in the
nomination form part-III the Returning Officer was not
required to be too technical in view of the correct age of
the petitioner mentioned in form 26 which was also
supported by an affidavit and the other affidavit. In this
connection, learned counsel also relied on Sub-section
(4) of Section 36 of the Act which requires the Returning
Officer not to reject any nomination paper on ground of
defect which is not substantial in nature. Learned counsel
submitted that in view of the correct age of the petitioner
mentioned in form 26 his nomination paper was not
required to have been rejected.
22. Learned counsel also relied on the judgment of
the Supreme Court in the case of Pratap Singh Vs.
Sri Krishna Gupta and others, AIR 1956 Spreme Court
140. It appears in the said case the appellant was a
candidate for the office of President of the Municipal
Committee. The respondents seven in number were also
candidates. The nominations were made on forms supplied
by the Municipal Committee but it turned out that the
forms were old ones as the forms were not updated.
Under the old Rules candidates were required to give
their caste but subsequently the Rule was changed and
instead of caste their occupation had to be entered. The
only candidate who got himself abreast of the change
was the first respondent. He struck out the word caste
in the printed nomination form and then furnished his
occupation as was required under the new Rules and not
his caste. The other candidates including the appellant
filled their nomination as they stood and entered their
caste and not their occupation. The first respondent
raised an objection before the Supervising Officer and
contended that all other nominations were invalid and
claimed that he should be elected as his was the only
valid nomination paper the objection was overruled and
election proceeded. The appellant secured the highest
number of votes and was declared to be elected. The first
respondent thereupon filed the election petition which
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was dismissed holding that defect in the nomination
paper of the appellant was not substantial and was
curable. The judgment dismissing the election petition
was reversed by the High Court relying on the judgment
of the Supreme Court in the case of Rattan Anmol Singh
(supra) holding that any failure to comply with any of the
provisions set out in the various rules is fatal and that
in such cases the nomination paper must be rejected.
Supreme Court reversed the said judgment deprecating
the tendency towards technicality : it is the substance
that counts and must take precedence over mere form
and distinguish the judgment rendered in the case of
Rattan Anmol Singh (supra) after quoting the following
passage in paragraph 11 of the said judgment :—
“If the Returning Officer had omitted the attestation
because of some slip on his part and it could be
proved that he was satisfied at the proper time, the
matter might be different because the element of
his satisfaction at the proper time, which is of the
substance, would be there, and the omission
formally to record the satisfaction could probably,
in a case like that be regarded as an unsubstantial
technicality”.
23. Learned counsel next referred to the judgment
of the Supreme Court in the case of Sushil Kumar Vs.
Rakesh Kumar, 2004 (1) PLJR 261. In the said case
Returning Officer accepted the nomination paper of Rakesh
Kumar who was below 25 years of age despite the
written objection. Respondent succeeded in the election.
The election petition was filed solely on the ground that
respondent at the time of filing his nomination paper was
not above the age of 25 years as mandatorily required
under Article 173(b) of the Constitution was not entitled
to file his nomination. The election petition, however,
was dismissed. Supreme Court set aside the order of the
High Court holding that respondent was not above the
age of 25 years on the date of filing nomination he ought
not to have been allowed to contest the election and his
election is declared void.
24. Learned counsel then referred to the judgment
of the Supreme Court in the case of Uttamrao Shivdas
Jankar Vs. Ranjitsinh Vijaysinh Mohite Patil, (2009) 13
Supreme Court Cases 131. In the said case nomination
paper of the election petitioner was rejected on the
ground that the signature of his two of the proposers
was not genuine which was challenged in the election
petition, election petition was also dismissed without
holding the trial. Supreme Court set aside the order of the
High Court directing the High Court to consider the
matter on merit by framing issues and calling for
production of evidence in support of the case of the
parties.
25. Learned counsel with reference to the judgment
of the Supreme Court in the case of Navjot Singh Sidhu
Vs. State of Punjab and another, 2007(1) PLJR 329,
paragraph-13 submitted that the Constitution of India
and the Act provides for qualification, disqualification
and not the identification of the candidate contesting the
election except for submission of the bio-data by the
candidate in compliance of the order of the Supreme
Court in the case of Union of India Vs. Association for
Democratic Reforms and People's Union for Civil Liberties
Vs. Union of India (supra). It is submitted that if the
candidate is qualified the question of correcting his age
is not an issue of identification as the respondent has
not taken such ground in his written statement.
26. Learned counsel submitted that Returning
Officer while deposing in court has taken different
grounds other than what has been mentioned in the
impugned order rejecting the nomination paper dated
20-4-2009. It is also submitted that Supreme Court in the
case of Mohindar Singh Gill and another Vs. The Chief
Election Commissioner, New Delhi and others, (1978) 1
Supreme Court Cases 405, paragraph-8 held that when
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise, an order bad in
beginning may by the time it comes to the court on
account of challenge get validated by additional grounds
later brought out. It is submitted that Returning Officer
though taking supplementary grounds in his deposition
has badly failed. The Deputy Election Officer R.W.-3 in
paragraph-5 of his deposition has categorically
contradicted the Returning Officer and stated that he
never asked the election petitioner to correct his age
indicated in the nomination paper.
27. Learned Counsel for the petitioner next referred
to the judgment of the Supreme Court in the case of Anil
Baluni Vs. Surendra Singh Negi, 2005(5) Supreme Court
Cases 793. In the said case election petitioner attended
the scrutiny and the Returning Officer made endorsement
in the nomination paper as 'Vaidh'. Later the Returning
Officer manipulated the nomination paper and wrote a
before ‘Vaidh’, thus rejecting the nomination paper on
the ground that form A and B were not submitted along
with nomination paper, rather were submitted at 4.10 P.M.
on the last day fixed for filing of nomination paper.
During trial the election petitioner successfully proved
the misconduct of the Returning Officer and the
interpolation made by him as would appear from the
records that form A and B were submitted one day before
last day fixed for filing of nomination paper at 2.58 P.M.
along with nomination paper. In view of the aforesaid
facts the Supreme Court found that nomination paper
completely filled up in prescribed format was delivered
and the nomination was wrongly rejected. Learned
Counsel for the petitioner submitted that in the present
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[PART II—SEC. 3(iii)]
case, the Returning Officer has fearlessly transgressed
the boundaries of Sub-section-(6) of Section 36 of the
Act as he did not make any endorsement either accepting
or rejecting the nomination paper of the election petitioner
and thereby kept the election petitioner in dark about the
rejection of his nomination paper. It is submitted that
Returning Officer further reflected his misdemeanour by
not providing the election petitioner a copy of order of
rejection, although requisition for obtaining certified copy
on payment was filed. Learned Counsel further submitted
that non-fulfilment of the requirement of law is distinct
from furnishing half hearted information in the nomination
paper. In this connection, he relied on the judgment of
the Supreme Court in the case of Viveka Nand Giri Vs.
Nawal Kishore Sahi, AIR 1984, Supreme Court 856.
paragraphs-2, 5 and 6. The election petition was filed by
the first respondent the defeated candidate only on the
ground that nomination paper of another candidate Ram
Kumar Jha was improperly rejected ignoring the fact that
he had mentioned his correct age i.e. 33 years in the
nomination paper contrary to his age indicated in the
electoral roll i.e. 37 years. The Returning Officer, however,
rejected the nomination paper of Ram Kumar Jha on the
ground that there is difference in the age of Ram Kumar
Jha between what has been mentioned in the electoral
roll and the nomination paper. The High Court on
consideration of the evidence found that no nomination
paper could be rejected unless the defect is of substantial
character and that the difference in the age of R.K. Jha
as given in the electoral roll and the nomination paper is
not a material error and no opportunity was given to the
candidate R.K. Jha to remove the defect though Sub-
section-(4) of Section 33 of the Act lays down that on the
presentation of the nomination paper the Returning Officer
shall satisfy himself that the names and electoral roll
numbers of the candidates and their proposers as entered
in the nomination paper are the same as those entered in
the electoral roll. The High Court held that rejection of
the nomination paper of Ram Kumar Jha by the Returning
Officer was improper and set aside the election of a
returned candidate. Supreme Court affirmed the judgment
of the High Court observing that the difference in the
age of the candidate Ram Kumar Jha as entered in the
electoral roll and the nomination paper would fall under
the category of inaccurate description mentioned in
proviso to Sub-section-(4) of Section 33 of the Act and
it is obligatory on the part of Returning Officer to have
it corrected or, to overlook it having regard to the
language of the proviso. The Supreme Court further
observed that difference of four years in the age of the
candidate Ram Kumar Jha as stated in the nomination
paper and the electoral roll is not an error of substantial
character as he was qualified to contest the election by
taking into account any of the age either stated in the
nomination paper or in the electoral roll.
28. Learned Counsel for the petitioner with reference
to the judgment of the Supreme Court in the case of
Brijendralal Gupta and another Vs. Jwalaprasad and others,
AIR 1960 Supreme Court 1049, paragraphs 9,17 submitted
that in the said judgment Supreme Court began with
following quotation :—
“Does the failure of a candidate to specify his age
as required by the prescribed form of the nomination
paper amount to a defect of a substantial character
under Section 36(4) of the Representation of the
People Act, 43 of 1951 (hereinafter referred to as
the Act) ? That is the point of law which arises for
our decision in the present appeal.”
The election petitioner in the said case had not
filled the age column of the nomination paper. Incomplete
nomination form according to the learned counsel for the
petitioner renders the nomination paper incomplete, invalid
and fit for rejection after scrutiny under Section 36 of the
Act. In the instant case, however, election petitioner has
written in the age column that he has completed 25 years
of age and as such was qualified to contest the election
and the nomination paper should not have been rejected.
29. Learned Counsel for the petitioner with reference
to the judgment of the Supreme Court in the case of Ram
Phal Kundu Vs. Kamal Sharma, (2004) 2 Supreme Court
Cases 759, paragraphs 7, 13 and Chief Information
Commissioner and another Vs. State of Manipur and
another, 2012(1) PLJR SC 313, paragraphs-35, 45 submitted
that in part III of the nomination paper candidate is not
required to specify his age as neither the Constitution of
India nor the Act nor the Rule nor the Handbook for
Candidate, Returning Officer nor the nomination form
require that the actual age of the candidate should be
mentioned in part III of the nomination form.
30. Learned Counsel with reference to the judgment
of the Supreme Court in the case of G.V. Sreerama Reddi
and another Vs. Returning Officer and others, (2009) 8
Supreme Court Cases 736, paragraphs-3, 4 and Ram Sukh
Vs. Dinesh Aggrawal (2009) 10 Supreme Court Cases 541,
paragraph-8 submitted that Act is a self contained code
and is required to be read and followed stricto sensu. He
further submitted that qualification for membership of
Parliament, as provided under Article 84 of the
Constitution, Sub-section-(2) of Section 36 of the Act
read in juxtaposition with Clause 12.1 of the Handbook
for the Candidates would indicate that the candidate has
to mention his correct age in part III of the nomination
paper only in case he finds that his age has not correctly
been mentioned in the electoral roll, otherwise he may
also indicate in part III of the nomination paper that he
has attained the qualifying age. It is submitted that in the
instant case, age of the petitioner was correctly stated in
the electoral roll, as such, he stated in part III of the
nomination paper that he has attained the qualifying age
i.e. 25 years.
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31. Learned Counsel for the petitioner finally relied
on the judgment of the Supreme Court in the case of
Nandiesha Reddi Vs. Kavitha Mahesh, (2011) 7 Supreme
Court Cases 721 paragraphs-7, 8 and 37. It appears in the
said case the election petition was filed on the ground
of improper rejection of the nomination paper under
Section 100 (1) (c) of the Act. The returned candidate
filed petitions under Order 6 Rule 16 of the Code of Civil
Procedure stating that the election petition does not
contain material facts and another petition under Sections
83, 86 of the Act read with Order 7 Rule 11 of the Code
of Civil Procedure for dismissal of the election petition.
Both the aforesaid petitions were dismissed by the High
Court, which was challenged before the Supreme Court.
Supreme Court dismissed the appeal holding that the
ground of improper rejection of the nomination paper
shall be considered during the trial of the election petition.
32. Learned Counsel for the petitioner with reference
to the aforesaid case law submitted that the sole ground
taken in the election petition is under Section 100(1)(c)
of the Act and there being neither endorsement of
rejection over the nomination paper of the petitioner nor
the copy of the order rejecting the nomination paper was
provided to the petitioner in spite of requisition for grant
of certified copy on payment or by way of free copy the
rejection of nomination paper is violative of Sub-
section(6) of Section 36 of the Act which specifically
require the Returning Officer to endorse on each
nomination paper his decision accepting or rejecting the
same and if the nomination paper is rejected then to
record in writing a brief statement of reasons for such
rejection. It is submitted that petitioner stated in part III
of his nomination paper that he has completed 25 years
of age which is in accordance with Article 84 of the
Constitution and the Returning Officer should have
accepted the same in view of the provisions contained
in Sub-section(2)(a) of Section 36 of the Act. Learned
counsel further submitted that in view of Clause-12.l of
the Handbook for the Candidate a candidate has to write
his correct age, provided his age has not been correctly
mentioned in the electoral roll. In the instant case, the
age of the petitioner was correctly mentioned in the
electoral roll. As such he was not required to have
mentioned his correct age in part III (a) of the nomination
paper. Learned Counsel for the petitioner further submitted
that the Returning Officer in his evidence stated that he
granted opportunity to the petitioner through Deputy
Election Officer to correct his age stated in part III of the
nomination paper on a public holiday, which has been
contradicted by the Deputy Election Officer who
categorically stated that he never asked the petitioner to
correct his age in the nomination paper. It is submitted
that in view of the contradictory evidence of Returning
Officer and the Deputy Election Officer about giving
opportunity to the petitioner to correct his age as
mentioned in part III of the nomination paper the conduct
of Returning Officer is unforgiving and should be termed
as breach of both the law and duty. It is further submitted
that the Returning Officer while proceeding with the
scrutiny of nomination paper did not act in the manner
provided in the Act, as he did not allow the candidates
to collectively guide him so as to avoid any unwarranted
situation. It was also obligatory upon the respondent or
his representative during the scrutiny to verify the
nomination paper of the election petitioner and to ask the
Returning Officer to accept the nomination paper on
endorsement which could not be done and the nomination
paper of the election petitioner was improperly rejected.
33. Learned counsel for the sole respondent with
reference to paragraphs-28, 30 of the election petition
submitted that election petition does not contain material
facts, namely, the facts and circumstances leading to
rejection of the nomination paper of the election petitioner
including the facts about the manner, mode and method
said to have been adopted by the Janta Dal (United)
party in association with Bhartiya Janta Party for procuring
assistance of the Returning Officer for the furtherance of
the election prospect of the sole respondent. It is
submitted that facts which led to rejection of the
nomination paper of the election petitioner is totally
missing from the election petition. Petitioner has merely
quoted the provisions of law contained in Section 100(1)
(c) of the Act and as the petitioner has not indicated any
facts indicating as to how his nomination paper was
improperly rejected by merely citing the provisions of
law, it cannot be said that the petition contains a concise
statement of the material facts, as is required under Sub-
section(1)(a) of Section 83 of the Act and for failure to
provide concise statement of the material facts in
paragraph-30 of the election petition and full particulars
of corrupt practice in paragraph-28 of the election petition,
the election petition is fit to be rejected in exercise of
power conferred under Order 6 Rule 16 and Order 7 Rule
11 of the Code of Civil Procedure. Reliance in this
connection was placed over the judgment of the Supreme
Court in the case of Samant N. Balakrishna etc. Vs.
George Fernandez and Others, AIR 1969 Supreme Court
1201 and Azhar Hussain Vs. Rajiv Gandhi, AIR 1986
Supreme Court 1253.
34. Learned counsel for the respondent next
submitted that the Returning Officer passed a detailed
order dated 20-04-2009 on the date fixed for scrutiny
rejecting the nomination paper of the election petitioner.
perusal whereof would indicate that the petitioner did
not state his correct and present age in part III of his
nomination paper. Failure of the petitioner to declare his
correct and present age in part III of his nomination
paper is a vital and substantial defect, which entails
rejection of the nomination paper. In this connection,
learned counsel for the respondent further pointed out
160
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[PART II—SEC. 3(iii)]
with reference to paragraph-12.1 (a) of the Handbook for
the candidates issued by the Election Commission of
India for the 2009 General Election that a candidate for
election to the House of the People or State Legislative
Assembly must not be less than 25 years of age. He
should give his correct age in the nomination paper, if
the candidate finds that his age is not correctly mentioned
in the electoral roll, he should give only his present age
in the nomination paper and not the wrong age as shown
in the electoral roll. It is further submitted by the counsel
for the respondent that the Handbook for the Returning
Officer issued by the Election Commission of India under
Chapter 'Scrutiny' requires the Returning Officer to reject
the nomination paper of a candidate for omitting to
specify his age in the nomination paper. It is submitted
that as the petitioner stated in part III of his nomination
paper that he has completed 25 years of age on the date
of nomination the Returning Officer during scrutiny
having found such statement to be incorrect rightly
rejected the nomination paper of the election petitioner.
In support of the aforesaid submission learned counsel
for the respondent relied on the judgment of the Supreme
Court in the case of Brijendralal Gupta and Another Vs.
Jwalaprasad and Others, AIR 1960 Supreme Court 1049
and submitted that for failure of the petitioner to specify
his correct age in part III of his nomination paper has
rightly been rejected and the plea raised in paragraph-30
of the election petition that nomination paper of the
election petitioner has been improperly rejected is wholly
misconceived and the election petition is fit to be rejected.
35. Having noted the case of the parties as pleaded
in the election petition, written statement as also having
considered the evidence led and the submissions made
on their behalf, it is thought appropriate to first consider
the import of the relevant provisions of the Act before
proceeding to adjudicate the issues involved in the
matter. Section 30 of the Act requires the Election
Commission to publish notification in the official gazette
appointing the last date for making nominations, the date
for scrutiny of the nominations, the date for withdrawal
of candidatures, the date or dates on which a poll shall
be held as also the date by which the election shall be
completed. It further appears from the wordings of the
said section that if the last date for making nominations,
scrutiny of nominations, withdrawal of candidatures is a
public holiday then the last date for making nominations,
scrutiny of nominations and withdrawal of candidatures
shall be the next succeeding day which is not a public
holiday. Section 33 provides for presentation of
nomination paper and requirements for a valid nomination.
Section 33(1) provides that on or before the date appointed
under Clause (a) of Section 30 each candidate shall either
in person or by his proposer 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 an elector of the
Constituency as proposer. In the event, the candidate is
not set up by a recognized political party his nomination
paper is required to be subscribed by 10 proposers being
electors of the Constituency. Sub-section (2) of Section
33 of the Act lays down that a candidate shall not be
deemed to be qualified to be chosen to fill a reserved
seat unless his nomination paper contains a declaration
prescribed by it. Sub-section (3) of Section 33 deals with
the case of a candidate who having held any office
referred to in Section 9 of the Act has been dismissed
from service and a period of five years has not elapsed
since the dismissal and lays down that the nomination
paper of such a person shall be accompanied by a
certificate as specified Sub-section (4) of Section 33 of
the Act requires that on the presentation of a nomination
paper the Returning Officer shall satisfy himself that the
names and electoral roll numbers of the candidate and
his proposer(s) as entered in the nomination paper are
the same as those entered in the electoral roll. The
proviso to this sub-section requires the Returning Officer
to permit any clerical or technical error in the nomination
paper in regard to the said names or numbers to be
corrected and where necessary it authorizes him to direct
that any clerical or printing error in the said entry shall
be overlooked. Section 36 of the Act deals with scrutiny
of nominations, authorizes the Returning Officer to hold
an enquiry, prescribes the procedure to be followed by
him in holding such an enquiry, requires him to endorse
his decision on the points raised in the scrutiny and to
prepare a list of validly nominated candidates i.e. to say
whose nominations have been found valid and to affix
the list containing the names of the validly nominated
candidates on the notice board. Section 36(1) provides
that on the date fixed for the scrutiny of nomination
paper under Section 30 the candidate and the other
persons specified in it may attend at such time and place
as the Returning Officer may appoint and shall give them
all reasonable facilities of examining the nomination papers
of all candidates which have been delivered within the
time and in the manner laid down in Section 33 of the
Act. Section 36(2) deals with examination of nomination
papers by the Returning Officer and it provides that the
said officer shall decide all objections which may be
made to any nomination and may either on such objection
or on his own motion after such summary enquiry, if any
as he thinks necessary reject any nomination paper on
any of the following grounds (a) that the candidate either
is not qualified or is disqualified for being chosen to fill
the seat under any of the following provisions that may
be applicable i.e. Articles 84, 102, 173 and 191 of the
Constitution and Part-II of the Act (b) that there has
been a failure to comply with any of the provisions of
Section 33 or 34 or (c) that the signature of the candidate
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or the proposer on the nomination paper is not genuine.
Sub-section (4) of Section 36 lays down that the Returning
Officer shall not reject any nomination paper on the
ground of any defect, which is not of a substantial
character. Sub-section (5) of Section 36 prescribes the
procedure for the scrutiny and Sub-section (6) of Section
36 requires that the Returning Officer shall endorse on
each nomination paper his decision accepting or rejecting
the same. In case of rejection Returning Officer is further
required to record in writing a brief statement of his
reasons for such rejection. Sub-section (7) of Section 36
provides that for the purposes of this Section, a certified
copy of an entry in the electoral roll for the time being
in force for a Constituency shall be conclusive evidence
of the fact that the 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. Sub-
section (8) of Section 36 of the Act requires the Returning
Officer to prepare a list of validly nominated candidate
and to fix the list on the notice board. It is thus, clear that
Section 33 of the Act requires that a nomination paper
completed in the prescribed form and signed by the
candidate and the elector(s) of the Constituency as
proposers be delivered to the Returning Officer on or
before the last appointed day for making nomination.
Besides the aforesaid three sections of the Act, this
Court is also required to notice Sections 80, 81, 83, 86
and 100 of the Act, which provides for presentation of
election petition calling in question any election on one
or more of the grounds specified in Section 100(1) and
101 of the Act by any candidate at such election or any
elector. Sub-section (1)(a), (b) of Section 83 of the Act
provides that an election petition shall contain a concise
statement of the material facts on which the petitioner
relies and full particulars of any corrupt practice that the
petitioner alleges, including as full a statement as possible
of the names of the parties alleged to have committed
such corrupt practice and the date, place of the
commission of each corrupt practice.
36. In the instant case, election petitioner has
alleged in paragraph-28 of the election petition that he
was totally prevented from contesting election by virtue
of Janta Dal (United) the ruling party in the State in
association with the Bhartiya Janta Party getting
assistance from the Returning Officer for furtherance of
election prospect of the sole respondent by dint of latent
administrative pressure at one end or the other else the
petitioner if nominated for contesting election would
have come as returned candidate. In paragraph 30 of the
election petition election petitioner asserted that his
nomination paper filed for contesting election from 30-
Patna Sahib Parliamentary Constituency has been
improperly rejected.
37. In support of the contents of paragraph-28
election petitioner has neither asserted in paragraph-28
nor has led any evidence to establish that on account of
latent administrative pressure exercised by the ruling Janta
Dal (United) party Returning Officer of 30-Patna Sahib
Parliamentary Constituency with the consent of respondent
acted for furtherance of his election prospect and thereby
for the failure of the election petitioner to comply Sub-
clause(1)(b) of Section 83 read with Sub-section(7) of
Section 123 of the Act, this Court is unable to rely on the
averments made in paragraph-28 of the election petition.
As regards the averments made in paragraph-30 of the
election petition that nomination paper of the election
petitioner was improperly rejected the objection raised by
the respondent that the averments made in paragraph-30
of the election petition is merely quotation of Section-
100(1)(c) and not a concise statement of the material facts
on which the petitioner relies as the facts which persuaded
the Returning Officer to reject the nomination paper of the
petitioner has not been stated in paragraph-30 of the
election petition is to be rejected in view of the fact that
nomination paper of the petitioner having been rejected
and such fact has been stated in the paragraph, as such,
according to this Court concise statement of the material
fact on which the petitioner relies as required under
Section 83(1)(a) of the Act is mentioned in the paragraph.
Reliance placed by the counsel for the respondent over
the judgment of the Supreme Court in the case of Samant
N. Balakrishna and Azhar Hussain (supra) is misconceived.
It may be stated here that in both the aforesaid reported
cases finding with regard to Section 83 of the Act and
Order 7 Rule 11 of the Code of Civil Procedure was
recorded by the Supreme Court taking into account the
allegations of corrupt practice and in that regard it was
observed that an election petition can be and must be
dismissed under the provisions of Code of Civil Procedure
if the mandatory requirement enjoined by Section 83 of the
Act to incorporate the material facts and particulars relating
to alleged corrupt practice in the election petition are not
complied with.
38. Having held as above, now, I proceed to consider
the validity of the order dated 20-4-2009 passed by the
Returning Officer rejecting the nomination paper of the
election petitioner on the ground that he mentioned his
incorrect age in part III of the nomination paper. Learned
counsel for the petitioner submitted that petitioner had
declared in part III of his nomination paper that he has
completed 25 years of age which is the qualifying age for
contesting election to the House of People as per Article
84 of the Constitution and in appreciation of such fact his
nomination paper should have been accepted as in form 26
supported by an affidavit as also in the other affidavit
appended with the nomination paper petitioner had
mentioned his correct age. Learned counsel in this
connection also referred to paragraph-12.1 of the Handbook
162
THE GAZETTE OF INDIA : DECEMBER 22, 2012/PAUSA 1, 1934
[PART II—SEC. 3(iii)]
for Candidates issued by the Election Commission of India
for participating in 2009 General Election and submitted
that election petitioner was required to have mentioned his
correct age in part III of his nomination paper provided
there was incorrect entry about his age in the electoral roll.
It was submitted that as the entry in the electoral roll about
the age of the petitioner was correct he mentioned in the
age column of part III of nomination form that he has
attained the qualifying age for contesting the impugned
election and in such view of the matter there should not be
any difficulty for this Court to hold that nomination paper
of the election petitioner has been improperly rejected.
Aforesaid submission has to be considered in the light of
the provisions contained in Sections 33 and 36 of the Act.
On presentation of the nomination paper completed in the
prescribed form the Returning Officer or the Authorized
Officer is to satisfy himself about the names and electoral
roll numbers of the candidate and his proposers, as
entered in the nomination paper are the same as those
entered in the electoral roll. Proviso to this sub-section
requires the Returning Officer to permit any clerical or
technical error in the nomination paper in regard to the said
names or numbers to be corrected and where necessary it
authorizes Returning Officer to direct that any clerical or
printing error in the said entry shall be overlooked. During
scrutiny of the nomination paper the Returning Officer is
to examine the nomination paper and to decide all objections
which may be made to any nomination or on his own
motion after summary enquiry as he thinks necessary
regarding the following grounds (a) that the candidate
either is not qualified or is disqualified (b) that there has
been a failure to comply with any of the provisions of
Section 33 or 34 or (c) that the signature of the candidate or
the proposer on the nomination paper is not genuine. In
the instant case. Returning Officer having examined the
nomination paper of the petitioner on the date of scrutiny
i.e. 20-4-2009 found that he presented nomination paper
which was not complete in the prescribed form as petitioner
had not specified his correct age in part III of the
nomination paper, petitioner having mentioned in part III
of the nomination paper that he has completed 25 years of
age which was not his age on the date of nomination.
Failure to mention the age in the appropriate column of the
nomination form is a defect of substantial nature, as has
been held by the Supreme Court in the case of Brijendralal
Gupta (supra). It may be stated here that an enquiry which
is necessary under Sub-section(2)(a) of Section 36 of the
Act may and can be held for instance in cases where
nomination paper shows the age of the candidate as above
25 years but an objection has been raised that in fact he is
below 25 years of age and as such incompetent to contest
the election under Article 84 of the Constitution. In the
instant case, petitioner having not furnished his correct
age in part III of the nomination form which was the
appropriate form for indicating the age of the candidate,
petitioner submitted incomplete nomination form and
thereby failed to comply with the provisions of Sub-
section (1) of Section 33 of the Act, which require the
candidate to deliver the nomination paper completed in
the prescribed form to the Returning Officer before the
appointed date. Reliance placed by the learned counsel
for the petitioner on form 26 and the other affidavits to
submit that petitioner indicated his correct age in form
26 and the other affidavit and in such view of the matter
placing reliance over proviso to Sub-section (4) of
Section 33 the incorrect age mentioned in part III of the
nomination form should have been corrected or
overlooked is wholly misconceived as while receiving
the nomination form the Returning Officer or Authorized
Officer is required to satisfy himself about the electoral
roll number of the candidate and his proposers as
entered in the nomination paper are same as those
entered in the electoral roll and technical or printing
error or inaccurate description in the electoral roll or in
the nomination paper is to be corrected/overlooked.
None of the provisions of Section 33 or 36 authorize the
Returning Officer to ignore the incorrect age mentioned
in the appropriate column of the nomination form i.e.
part III. It may further be stated here that in view of
Rule 4 of Conduct of Election Rules, 1961 (hereinafter
referred to as the Rules) also candidate has to deliver
the nomination form completed in the prescribed form
before the last appointed date for making nomination.
The nomination forms are also part of Rule 4 which
does not include form 26. Proviso to Rule-4 further
provide that failure to complete or defect in completing
the declaration as to the symbol in the nomination
paper in form 2A or 2B shall not be deemed to be a
defect of substantial nature within the meaning of
Section 36(4) of the Act. Rule 4A of the aforesaid Rules
require the candidate or his proposer, as the case may
be to also deliver to the Returning Officer an affidavit
sworn by the candidate before a Magistrate of first
class or a notary in form 26 giving his antecedent but
the said form 26 is not the part of nomination paper. In
view of the provisions of Rule 4, 4A of the Rules there
is no difficulty for this Court to conclude that form 26
submitted along with nomination paper is an addendum
to the nomination paper. In the instant case, petitioner
delivered the nomination paper to the Returning Officer
before the appointed date which was incomplete as the
same did not contain statement about the age of the
petitioner on the date of nomination and Returning
Officer had no option but to reject the same for failure
of the petitioner to deliver his nomination paper
completed in the prescribed form to the Returning
Officer before the appointed date. Reliance placed by
the learned counsel for the petitioner over the judgment
of the Supreme Court in the case of Viveka Nand Giri
(supra) is wholly misconceived, as in the said case
rejection of nomination paper no. 42 of Ram Kumar Jha
was on the ground that there was discrepancy in the
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163
age indicated by Sri Jha in part III of the nomination
paper and the electoral roll as in part III of the
nomination paper R.K. Jha had indicated 33 years of
age but in the electoral roll it appeared to be 37 years.
On consideration of the evidence available on record
Superior Courts found that no nomination paper could
be rejected unless the defect is of substantial character
and that the difference in the age of the candidate as
given in the electoral roll and the nomination paper is
not material error. The Superior Courts in the said case
did not approve of the rejection of nomination paper
no.42 of Ram Kumar Jha observing that difference in
the age of the candidate as entered in the electoral roll
and the nomination paper would fall under the category
of inaccurate discrepancy mentioned in proviso to
Sub-section-(4) of Section 33 of the Act and that it was
obligatory on the part of the Returning Officer to have
it corrected or to overlook it having regard to the
language of the proviso as Ram Kumar Jha had
completed 33 years of age on the date of nomination. In
the instant case, nomination paper of petitioner was
rejected after scrutiny under Sub-section (2) (b) of
Section 36 for failure of the petitioner to comply with
the provisions of Section 33 of the Act as he failed to
deliver to the Returning Officer a nomination paper
completed in the prescribed form as the nomination
paper delivered by the petitioner did not contain his
age on the date of nomination, whereafter Returning
Officer passed order dated 20-4-2009, as is required of
him under Sub-section (6) of Section 36 of the Act.
39. Before parting with this order, I may also notice
that there is contradiction in the evidence of R.W.-2 and
3 about granting opportunity to the petitioner to correct
his age indicated in part III of the nomination paper as
according to R.W.-2 petitioner was granted such
opportunity on 19-5-2009 through R.W.-3 the Deputy
Election Officer but in paragraph-5 of the cross-
examination R.W.-3 stated that he never asked the election
petitioner to correct his age indicated in the nomination
paper. Aforesaid contradiction in the oral evidence of the
official witnesses may not help the petitioner as petitioner
having not mentioned his age on the date of nomination
in part III of the nomination form delivered incomplete
nomination form to the Returning Officer before the
appointed date and his nomination was fit to be rejected
in view of Section 36(2)(b) of the Act for the failure of
the petitioner to comply with Section 33 of the Act.
Patna High Court, Patna
Dated the 5th September, 2012
Rajesh, A.F.R.
Sd/-
(V. N. SINHA, J)
[No. 82/BR/(6/2009)/2012]
By Order,
HARBANS SINGH, Secy.
ubZ fnYyh] 12 fnlEcj] 2012
vk-v- 45-—yksd izfrfuf/Ro vf/fu;e] 1951 (1951
dk 43) dh /kjk 106 ds vuqlj.k esa] Hkkjr fuokZpu vk;ksx 2009
dh fuokZpu vthZ la[;k 18 esa bykgkckn mPp U;k;ky; ds rkjh[k
18 vDrwcj] 2012 ds fu.kZ; dks ,rn~}kjk izdkf'kr djrk gS A
(fu.kZ; vf/lwpuk ds vaxzsth Hkkx esa Nik gS A)
¹la- 82@m-iz-&yks-l-@18@2009 (byk-)º
vkns'k ls]
vkj- ds- JhokLro] iz/ku lfpo
New Delhi, the 12th December, 2012
O.N. 45.—In pursuance of section 106 of the
Representation of the People Act, 1951 (43 of 1951), the
Election Commission of India hereby publishes the
Judgement dated 18th October, 2012 of the High Court of
Judicature at Allahabad in Election Petition No. 18 of 2009.
IN THE HIGH COURT OF JUDICATURE AT
ALLAHABAD
Election Petition No.18 of 2009
(Under Section 80, 80-A/81 of the Representation of
People Act, 1951)
District : Badaun
Dharam Yadav alias D.P. Yadav,
S/o Shri Tej Pal,
R/o House No. 140-Kha, Mohalla Jahangirabad,
Ansh Sahswan, District Badaun.
... Election Petitioner
Versus
1.
Dharmendra Yadav S/o Shri Abhay Ram,
R/o Village & Post Saifaee, District Etawah.
2.
Saleem Iqbal Sherwani S/o Shri M. R. Sherwani,
R/o 34, Sarojani Naidu Marg, Allahabad.
3.
Ajeet Singh Yadav S/o Shri Virendra Singh,
R/o 25. Pathakpur, Tehsil Gunnaur,
District Badaun
4.
Javitree Devi wife of Shri Virendra Pal,
R/o Mohalla Jalandhari Sarai, Badaun,
District Badaun.
5.
Brij Pal Singh Shakya S/o Shri Dina Nath Shakya,
R/o Mohalla Bhadwarganj, Ujhani. District
Badaun.
6.
D.K. Bhardwaj S/o Shri Krishna Dutt Bhardwaj,
R/o Mohalla Jawaharpuri, City Badaun,
District Badaun.
164
THE GAZETTE OF INDIA : DECEMBER 22, 2012/PAUSA 1, 1934
[PART II—SEC. 3(iii)]
7.
Anupam Sharma S/o Shri Ram Adhar Sharma,
R/o Purana Barf-Khana, Civil Lines Badaun,
District Badaun.
8.
Dharmendra Yadav S/o Shri Nand Kishore,
R/o 102, Udranpur Azmat Nagar, Gunnaur,
District, Badaun.
9.
Bhagwan Singh S/o Shri Khushi Ram,
R/o Village Bichaula Bhood, Post Patariya,
Tehsil Gunnaur, District Badaun.
... Respondents
Court No. 58
Case : Election Petition No. 18 of 2009
Petitioner : Dharam Yadav Alias D.P.Yadav
Respondent : Dhamendra Yadav & others
Petitioner Counsel : In Person, Arvind Mishra, N.K.
Pandey, Sudha Pandey
Respondent Counsel : Saral Srivastava
Hon’ble Sibghat Ullah Khan, J.
Heard learned counsel for election petitioner and
learned counsel for respondent No.1, the elected candidate.
Election petitioner has filed Civil Misc. Withdrawal
Application No. 253255 of 2012 on 28-08-2012 under Sections
No.109 and 110 of Representation of the People Act, ,1951
supported by his own affidavit for Withdrawal of the
election petition. Sections 109 & 110 of the Act are quoted
below :
“109. Withdrawal of election petitions.—
(1) An election petition may be withdrawn only by
leave of the High Court.
(2) Where an application for withdrawal is made under
sub-section (1) notice thereof fixing a date for the hearing
of the application shall be given to all other parties to the
petition and, shall be published in the Official Gazette.
110. Procedure for withdrawal of election petitions.-
(1) If there are more petitioners than one, no
application to withdraw an election petition shall be made
except with the consent of all petitioners.
(2) No application for withdrawal shall be granted if,
in the opinion of the High Court such application has
been induced by any bargain or consideration which ought
not to be allowed.
(3) If the application is granted-
(a) the petitioner shall be ordered to pay the costs of
the respondents therefore incurred or such portion thereof
as the High Court may think fit;
(b) the High Court shall direct that the notice of
withdrawal shall be published in the Official Gazette and in
such other manner as it may specify and thereupon the
notice shall be published accordingly;
(c) a person who might himself have been a petitioner
may within fourteen days of such publication, apply to be
substituted as petitioner in place of the party withdrawing,
and upon compliance with the conditions, if any, as to
security, shall be entitled to be so substituted and to
continue the proceedings upon such terms as the High
Court may deem fit”.
On 11.09.2012 following order was passed in this
election petition on the order sheet :
“S/Sri N.K. Pandey and Anshul Nigam, learned
counsel have filed this withdrawal application under
Section 109 and 110 of Representation of People Act
1951 on behalf of sole petitioner after serving the
copy of the same upon Sri Shivam Yadav, learned
counsel appearing for respondent no. 1. Sri S.P.
Gupta, learned senior counsel also appears for
respondent No. 1. Sri S. P. Gupta. learned senior
counsel has not opposed the application, however,
he has Pointed out that formalities mentioned under
Section 109 of the Act are to be completed before
leave may be granted by the Court for withdrawing
the election petition.
Accordingly, list the application on 8.10.2012.
Meanwhile learned counsel for the petitioner applicant shall
take necessary steps as provided under Section 109 of the
Act promptly so that on the next date all the formal as
mentioned in the said Section are completed.
Office is directed to supply requisite notice etc. to
the learned counsel for the petitioner within 48 hours if
possible or by maximum within three days from the date on
which learned counsel for the petitioner approaches the
office for getting necessary papers for publication of the
notice in the gazette.
Notice shall also be published in Daily Hindi News
paper Amar Ujala or Dainik Jagaran, Bareily edition.”
Thereafter, notice was published in the Official
Gazette of U.P. dated 29.09.2012 (on page-396) which has
been placed on record. Informationl/notice has also been
published in daily Hindi newspaper ‘Dainik Jagran’ dated
06-10-2012 published from Bareilly. A copy of the newspaper
has also been placed on record. No one has filed, any
objection. learned counsel for respondent No.1 not only
does not oppose the withdrawal of the election petition
but fully supports the same also. Learned counsel for the
respondent No. 1 also states that no cost need be awarded
to respondent No.1 in terms of Section 110(3)(a) of
Representation of People Act.
Accordingly, leave to withdraw the election petition
is granted Application for withdrawal is allowed, and
Election Petition is dismissed as withdrawn.
Order Dated : 18-10-2012
Sd/-
SIBGHAT ULLAH KHAN, J.
[No. 82/UP-HP/18/2009 (Alld.)]
By Order,
R. K. SRIVASTAVA, Principal Secy.
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and Published by the Controller of Publications, Delhi-110054.