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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

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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.

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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.

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.