757 GI/2013
(73)
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- 6]
ubZ fnYyh, ekpZ 3—ekpZ 9] 2013] 'kfuokj@iQkYxqu 12—iQkYxqu 18] 1934
No. 6]
NEW DELHI, MARCH 3—MARCH 9, 2013, SATURDAY/PHALGUNA 12—PHALGUNA 18, 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 A
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)
Hkkjr fuokZpu vk;ksx
ubZ fnYyh] 20 iQjojh] 2013
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xbZ flfoy vihy la[;k 2011 dk 10728 esa Hkkjr mPpre U;k;ky; ds fnukad 1 iQjojh] 2012 ds fu.kZ; dks yksd izfrfuf/Ro vf/fu;e]
1951 (1951 dk 43) dh /kjk 116x (2)([k) ds vuqlj.k esa] fuokZpu vk;ksx ,rn~}kjk izdkf'kr djrk gS A
(vkns'k bl vf/lwpuk ds vaxzsth Hkkx esa Nik gS A)
¹la- 82@fcgkj&yks-l-@(4@2009)@2013º
vkns'k ls]
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ELECTION COMMISSION OF INDIA
New Delhi, the 20th February, 2013
O.N. 14 .—In pursuance of clause (b) of Sub-section (2) of Section 116C of the Representation of the People Act,
1951 (43 of 1951), the Election Commission hereby publishes the Order dated 1st February, 2012 of the Supreme Court of
India in Civil Appeal No. 10728 of 2011 filed against the Judgement, dated 25th November, 2011 of the High Court of
Judicature at Patna in Election Petition No. 4 of 2009.
74
THE GAZETTE OF INDIA : MARCH 9, 2013/PHALGUNA 18, 1934
[PART II—SEC. 3(iii)]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 10728 of 2011
MANGANI LAL MANDAL
... Appellant(s)
Versus
BISHNU DEO BHANDARI
... Respondent(s)
JUDGMENT
R.M. Lodha, J.
The returned candidate - Mangani Lal Mandal- is in
appeal under Section 116A of the Representation of the
People Act, 1951 (for short, ‘1951 Act’) aggrieved by the
judgment dated November 25, 2011 of the Patna High Court
whereby his election to the 15th Lok Sabha has been set
aside.
2. The appellant - the returned candidate - contested
the general Parliament election to the 15th Lok Sabha from
7, Jhanjharpur Parliamentary Constituency held on April
23, 2009. Altogether 12 candidates filed their nomination
papers, including the appellant, as per the schedule fixed
for conducting the said election. On May 16, 2009, the
result of the above election was announced and the
appellant was declared elected.
3. The respondent – Bishnu Deo Bhandari, a voter
(hereinafter referred to as the ‘election petitioner’)–
challenged the election of the returned candidate by filing
the election petition before the Patna High Court. The
election petitioner alleged that the returned candidate
suppressed the facts in the affidavit that he filed alongwith
his nomination papers that he had two wives and the
dependent children by marriage with his first wife. He did
not disclose the assets and liabilities of his first wife and
the dependent children born out of that wedlock. The
challenge to the election of the returned candidate was
brought under Section 100 (1) (d) (iv) of the 1951 Act and it
was prayed that the election of the returned candidate be
declared to be void.
4. The returned candidate traversed the averments
made by the election petitioner and also raised diverse
objections, inter alia, that the election petition did not
disclose any cause of action nor it contained the concise
statement of material facts.
5. The High Court, on the basis of the pleadings of
the parties, framed as many as seven issues and, after
recording the evidence, held that the returned candidate
failed to furnish information about his first wife and the
dependents in the affidavit filed along with his nomination
papers. The High Court heavily relied upon the two
decisions of this Court in Union of India Vs. Association
for Democratic Reforms & Anr.1 and People’s Union for
Civil Liberties (PUCL) & Anr. Vs. Union of India & Anr.2
and held that the suppression of facts by the returned
candidate with regard to the assets and liabilities of his
first wife and the dependent children born out of that
wedlock was breach of the Constitution- viz. Article 19(1)
(a) and for such breach and non-compliance, the candidate
who has not complied with and breached the right to
information of electors and has won the election has to
suffer the consequence of such non-compliance and the
breach. The High Court, in view of the above, set aside the
election of the returned candidate from Jhanjharpur
Parliamentary Constituency being void under Section 100
(1) (d) (iv) of the 1951 Act.
6. We have heard Mr. A. Sharan, learned senior
counsel for the appellant, and Mr. S.B.K. Manglam, learned
counsel for the respondent.
7. The Appeal deserves to be allowed on the short
ground which we indicate immediately hereinafter.
8. Section 100 of the 1951 Act provides for grounds
for declaring election to be void. As we are concerned with
Section 100 (1) (d) (iv), the same is reproduced which reads
as under :—
“100. Grounds for declaring election to be void.- (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion—
(a) x
x
x
x
(b) x
x
x
x
(c) x
x
x
x
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially,
affected—
(i) x
x
x
(ii)x
x
x
(iii) x
x
x
(iv) by any non-compliance with the provisions of
the Constitution or of this Act or any rules or orders made
under this Act,
the High Court shall declare the election of the returned
candidate to be void.
(2)
x
x
x
x”
9. A reading of the above provision with Section 83
of the 1951 Act leaves no manner of doubt that where a
returned candidate is alleged to be guilty of non-compliance
of the provisions of the Constitution or the 1951 Act or any
rules or orders made thereunder and his election is sought
to be declared void on such ground, it is essential for the
election petitioner to aver by pleading material facts that
the result of the election insofar as it concerned the returned
1 (2002) 5 SCC 294
2 (2003) 4 SCC 399
¹Hkkx II—[k.M 3(iii)º
Hkkjr dk jkti=k % ekpZ 9] 2013@iQkYxqu 18] 1934
75
candidate has been materially affected by such breach or
non-observance. If the election petition goes to trial then
the election petitioner has also to prove the charge of
breach or non compliance as well as establish that the
result of the election has been materially affected. It is only
on the basis of such pleading and proof that the Court may
be in a position to form opinion and record a finding that
breach or non-compliance of the provisions of the
Constitution or the 1951 Act or any rules or orders made
thereunder has materially affected the result of the election
before the election of the returned candidate could be
declared void. A mere non-compliance or breach of the
Constitution or the statutory provisions noticed above,
by itself, does not result in invalidating the election of a
returned candidate under Section 100(1) (d) (iv). The sine
qua non for declaring election of a returned candidate to
be void on the ground under clause (iv) of Section 100(1)
(d) is further proof of the fact that such breach or non-
observance has resulted in materially by affecting the result
of the returned, candidate. In other words, the violation or
breach or non-observation or non-compliance of the
provisions of the Constitution or the 1951 Act or the rules
or the orders made thereunder, by itself, does not render
the election of a returned candidate void Section 100(1) (d)
(iv). For the election petitioner to succeed on such ground
viz., Section 100 (1) (d) (iv) , he has not only to plead and
prove the ground but also that the result of the election
insofar as it concerned the returned candidate has been
materially affected. The view that we have taken finds
support from the three decisions of this Court in (1) Jabar
Singh Vs. Genda Lal3; (2) L.R. Shivaramagowda and Others
Vs. T. M. Chandrashekhar ( dead) by LRs. and Others.4
and (3) Uma Ballav Rath (Smt ) Vs. Maheshwar Mohanty
(Smt) and others5.
10. Although the impugned judgment runs into 30
pages, but unfortunately it does not reflect any
consideration on the most vital aspect as to whether the
non-disclosure of the information concerning the
appellant’s first wife and the dependent children born out
of that wedlock and their assets and liabilities has materially
affected the result of the election insofar as it concerned
the returned candidate. As a matter of fact, in the entire
election petition there is no pleading at all that suppres
sion of the information, by the returned candidate in the
affidavit filed along with the nomination papers with regard
to his first wife and dependent children from her and non-
disclosure of their assets and liabilities has materially
affected the result of the election. There is no issue framed
in this regard nor there is any evidence let in by the election
petitioner. The High Court has also not form any opinion
on this aspect. We are surprised that in the absence of any
consideration on the above aspect, the High Court has
declared the election of the returned candidate to the
15th Lok Sabha from the Jhanjharpur Parliamentary
Constituency to the void. The impugned judgment of the
High Court is gravely flawed and legally unsustainable. As
a matter of law, the election petition filed by the election
petitioner deserved dismissal at threshold yet it went into
the whole trial consuming Courts precious time and putting
the returned candidate to unnecessary trouble and
inconvenience.
11. Civil Appeal is, accordingly, allowed. The
impugned judgment dated November 25, 2011 is set aside.
The election petition filed by the respondent is dismissed
with costs which we quantify at Rs. 1,00,000 (Rupees One
Lakh) .
..........................................................J.
(R. M. LODHA)
New Delhi
..........................................................J.
February 1, 2012
(Sudhansu Jyoti Mukhopadhaya)
[No. 82/BR-HP/(4/2009)/2013]
By Order,
TAPAS KUMAR, Pr. Secy.
ubZ fnYyh] 1 ekpZ] 2013
vk-v- 15 -—yksd izfrfuf/Ro vf/fu;e] 1951 (1951
dk 43) dh /kjk 106 ds vuqlj.k esa] fuokZpu vk;ksx ,rn~}kjk
fuokZpu vthZ la- 1@2009 esa fn;s x;s mPp U;k;ky;] iVuk ds
rkjh[k 6 iQjojh] 2013 ds vkns'k dks izdkf'kr djrk gS A
(vkns'k bl vf/lwpuk ds vaxzsth Hkkx esa Nik gS A)
¹la- 82@fcgkj&yks-l-@(1@2009)@2013º
vkns'k ls]
ril dqekj] iz/ku lfpo
New Delhi, the 1st March, 2013
O.N.15 .—In pursuance of Section 106 of the
Representation of the People Act, 1951 (43 of 1951), the
Election Commission hereby published Order dated the
6th February, 2013 of the High Court of Judicature at Patna
in Election Petition No. 1 of 2009.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No. 1 of 2009
In the matter of an application under Sections 80, 80A and
81 of the Representation of the People Act, 1951
Satya Narayan Singh, son of late Dwarika Prasad Singh,
resident of village Dewka, P.O. Kaithi, P.S. Chautham, district
Khagaria
... Petitioner/s
3 (1964) 6 SCR 54
4 (1999) 1 SCC 666
5 (1999) 3 SCC 357
76
THE GAZETTE OF INDIA : MARCH 9, 2013/PHALGUNA 18, 1934
[PART II—SEC. 3(iii)]
Versus
1. The Election Commission of India through the Chief
Election Commissioner.
2. The Chief Electoral Officer, Bihar, Patna.
3. The Returning Officer-cum-District Magistrate,
Khagaria.
4. Dinesh Chandra Yadav, son of Ramdhari Yadav,
resident of village Itahari, Tola Banma, P.O. Itahari,
P.S. Salkhua, District Saharsa.
.... Respondent/s
Appearance :
For the Petitioner
: M/s. P.K. Verma, Sr. Advocate,
Lakshmi Kant Tiwary,
Ujjwal Kumar Sinha, Advocates
For Respondent no. 4 : M/s. S.B.K. Mangalam, Pramod
Mishra, Jyoti
Prabhakar, Advocates.
CORAM : HONOURABLE MR. JUSTICE V.N. SINHA
C. A. V. JUDGMENT
V.N. SINHA, J. —Election peitioner has filed this
petition under Sections 80, 80A and 81 of the
Representation of the People Act, 1951(hereinafter referred
to as the Act) praying inter alia to declare the election of
respondent no.4 from 25-Khagaria Parliamentary
Constituency held pursuant to notification dated 2-4-2009
on 30-4-2009, result whereof was declared on 16-5-2009
(hereinafter referred to as the impugned election) as void
on the ground mentioned in Sub-section (l) (c) of Section
100 of the Act that the nomination paper of the election
petitioner has been improperly rejected under order dated
11-4-2009, Annexure-3 passed by the Returning Officer.
2. Election petitioner presented his nomination paper
on 6-4-2009 before the Returning Officer for contesting the
impugned election. Returning Officer having received the
nomination paper of the petitioner issued check list of
documents under his own signature, copy whereof is
contained in Annexure-2 to this petition indicating filing of
nomination dated 6-4-2009 by the petitioner at 1.25 P.M.
Having received the nomination paper from the petitioner
and issued the check list of documents, Returning Officer
did not point out any defect, deficiency in the nomination
paper or the documents including Form 26 filed by the
petitioner along with nomination paper. Returning Officer,
however, rejected the nomination of the petitioner under
order dated 11-4-2009, Annexure-3 on the ground that Form
26 is not duly sworn by the petitioner before a Magistrate
of 1st class or a Notary public or Oath Commissioner
appointed by the High Court. Having received the rejection
order petitioner filed his objection dated 12-4-2009 before
the Returning Officer, copy whereof was also forwarded to
the Chief Election Officer, Election Commission of India,
New Delhi (hereinafter referred to as the Commission) which
is also annexed with the election petition as Annexure-4. In
paragraph 6 of the election petition, election petitioner
explained the circumstances, in which he could not support
the statements made in Form 26 filed along with nomination
paper, Annexure-5 by an affidavit duly sworn before a
Magistrate of 1st class, Notary public or Oath Commissioner
appointed by the High Court. In paragraph-7 of the election
petition, petitioner has further stated that order dated
11-4-2009, Annexure-3 rejecting his nomination paper is
contrary to the grounds for rejection of nomination paper
as provided under sub-section-(2) of Section 36 of the Act.
In paragraph 8 of the election petition petitioner has further
stated that Form 26 is prescribed by Rule 4A of the Conduct
of Election Rules, 1961(hereinafter referred to as the Rules)
so as to enable the candidate contesting the election under
the Act to furnish further information in the light of Section
33A of the Act out failure of the candidate to support the
information furnished in Form 26 by an affidavit cannot be
a ground for rejection of the nomination paper as the
grounds for rejection provided under Section 36 of the Act
does not include failure to support the information given
under form 26 by an affidavit. In the light of the aforesaid
interpretation of the Act and the Rules petitioner further
submitted in the same paragraph that the order rejecting
his nomination paper, Annexure-3 is wholly improper, illegal
and without jurisdiction. In paragraph 9 of the election
petition petitioner has further submitted with reference to
sub-section-(4) of Section 36 of the Act that the Returning
Officer is not empowered to reject any nomination paper
on the ground of defect which is not of substantial
character. In this connection, it is further submitted in the
same paragraph that failure to support the information
furnished under Form 26 by an affidavit is not a substantial
defect as the same is not included in Section 36 of the Act,
as such, the order rejecting the nomination paper of the
petitioner is clearly illegal. In paragraph 10 of the election
petition petitioner has further submitted that wrongful
rejection of nomination paper entails setting aside of the
election on the ground of wrongful rejection of the
nomination paper under sub-section (l )( c) of Section 100
of the Act but the wrongful acceptance of the nomination
paper is not a ground for setting aside the election unless
heavy burden is discharged by challenger under sub-
section (1)(d) of Section 100 of the Act by proving that the
wrongful acceptance of the nomination paper has materially
affected the election of the returned candidate. In paragraph
11 of the election petition, it has been submitted that
petitioner was not allowed any opportunity to rectify the
defect in form 26 and on this ground also the order rejecting
his nomination paper is illegal and improper. In paragraph
12 statement has been made that the validity of the order
dated 11-4-2009 rejecting the nomination paper of the
election petitioner was challenged in High Court by filing
C.W.J.C. No.4877 of 2009 on the ground that the rejection
order, Annexure-3 is apparently illegal, this Court may
exercise its extraordinary jurisdiction to quash the same.
¹Hkkx II—[k.M 3(iii)º
Hkkjr dk jkti=k % ekpZ 9] 2013@iQkYxqu 18] 1934
77
The High Court, however, was of the opinion that the case
does not entail any exceptional situation which calls for
interference under Article 226 of the Constitution of India
and having observed as above, the writ petition was
dismissed under order dated 17-4-2009, against which
petitioner preferred Special Leave to Appeal (Civil)
No.10488/09 which was also dismissed as withdrawn on
28-4-2009 with liberty to file election petition. In paragraphs
14, 15 of the election petition, petitioner has further averred
that the result of the impugned election was declared on
16-5-2009 in which respondent no.4 was declared elected.
Present election petition has been filed for declaring the
election of returned candidate i.e. respondent no.4 as void
under sub-section (l)(c) of Section 100 of the Act i.e. improper
rejection of the nomination paper of the election petitioner
with further direction to the Commission to hold fresh
election.
3. In response to the election petition contesting
respondent no. 4 has only fiIed his written statement. In
paragraphs-1 to 4 of the written statement respondent no.4
has sought apology from this Court for inconvenience
caused due to his non-appearance in the matter and the
matter had to proceed exparte, whereafter it transpired that
in fact no notice was served upon the deponent and steps
for substituted service was taken by publishing notice in
the newspaper. In paragraph 5 of the written statement
contesting respondent states that election petition is neither
maintainable in law nor on facts. In paragraph 6 respondent
no.4 states that election petition as framed and filed by the
election petitioner suffers from inherent defects of non-
compliance with the provisions of Sections 81, 82 of the
Act. In paragraph 7 respondent no.4 has quoted Section
83 of the Act. In paragraph-8 respondent no.4 with reference
to Section 83 of the Act has stated that election petitioner
is required to make a concise statement of material facts in
his election petition on which he relies and the contents of
the petition is required to be verified in the manner
prescribed for verification of plaint in the Code of Civil
Procedure, 1908. In paragraph 9 respondent no.4 has stated
that from the copy of the election petition served on
respondent no.4, it is clear that pleadings made in the
election petition has not been verified by the election
petitioner in the manner prescribed under Order ·6 Rule 15
of the C.P.C. and thus election petition is not maintainable
in the eye of law and is fit to be dismissed without trail as
there is no verification of the pleadings at all. In paragraph
10 of the written statement respondent no. 4 has stated
that it would be relevant to state that there is distinction
between the verification and affidavit. Law requires
verification and not affidavit, though an affidavit has been
filed in support of the election petition but there is no
verification at all. In paragraph 11 of the written statement
respondent no.4 has stated that Order 6 Rule 2 C.P.C.
provides that every pleading shall contain and contain
only a statement in a concise form of the material facts on
which the party pleading relies for his claim or defence as
the case may be, but not the evidence by which the claim/
defence is to be proved. In paragraph 12 of the written
statement respondent no.4 has stated that punishment for
failure to comply with the provisions of Order 6 Rule 2
C.P.C. is provided under order 7 Rule 11(a) C.P.C. i.e. for
rejection of the plaint if it does not disclose a cause of
action. In paragraph 13 of the written statement respondent
no.4 has stated that requirement of Section 83 of the Act
read with Order 6 Rule 2 C.P.C. has been the subject matter
of consideration in large number of cases whereunder it
has been categorically held that failure to plead even a
single material fact would lead to incomplete cause of action
and the statement of claim becomes bad for which the
election petition should be dismissed by exercising the
power under order 7 Rule 11 C.P.C. In paragraph 14 of the
written statement respondent no.4 has stated that it has
been held in catena of decisions that even if Section 83 is
not referred to in Section 86 of the Act, yet power under
Order 7 Rule 11 C.P.C. can be exercised for rejection of
plaint in election matters. In paragraph 15 of the written
statement respondent no.4 has stated that after going
through the pleadings of the election petition it transpires
that the election petitioner has made desperate allegations
in his election petition and has omitted to .plead many
facts deliberately in his election petition to complete the
chain of events and therefore the election petition is fit to
be dismissed under Order 7 Rule l l(c) C.P.C. In paragraph
16 of the written statement respondent no.4 has stated that
case of the election petitioner in the election petition is
that his nomination paper was rejected for failure to support
the statements made in Form 26 with an affidavit but in the
election petition petitioner has no where stated that on the
date of scrutiny election petitioner was himself present at
the time of scrutiny and despite his readiness shown to
remove the defect his nomination paper was rejected by
the Returning Officer. In paragraph 17 of the written
statement respondent no.4 has stated that at the time of
scrutiny the representative of the election petitioner was
present and in his presence defect in form 26 filed by the
election petitioner along with nomination paper was pointed
out and his representative was informed but his
representative did not ask the Returning Officer to provide
him opportunity to get the defects removed so that the
nomination paper of election petitioner is not rejected. It is
further stated in the said paragraph that representative of
the election petitioner remained quite throughout scrutiny
and after rejection of the nomination paper of the election
petitioner by the Returning Officer the representative left
the office of the Returning Officer with knowledge that
nomination paper of the election petitioner has been
rejected. In paragraph 18 of the written statement
respondent no.4 has stated that from the conduct of the
election petitioner as also the conduct of his authorised
representative, it is apparently clear that the mistake was
committed by the election petitioner deliberately to
78
THE GAZETTE OF INDIA : MARCH 9, 2013/PHALGUNA 18, 1934
[PART II—SEC. 3(iii)]
challenge the election of deponent after he succeeds in the
election. In paragraph 19 of the written statement
respondent no.4 has stated that it is well settled law that an
election dispute is not like the ordinary lis. between the
two individuals. The entire electorate is vicariously, if not
inertly before the court and therefore, trial of election
petitions must proceed with great care and caution. It is
also stated in the said paragraph that desperate allegations
would not constitute a triable issue and the election petition
must be thrown out at the outset itself. In paragraph 20 of
the written statement respondent no.4 has stated that the
election petitioner has not come to this Court with clean
hands and has suppressed the material facts in his election
petition, the election petition is fit to be dismissed without
trail. In paragraph 21 of the written statement respondent
no.4 has further stated with reference to Section 82 of the
Act that the election petition is fit to be dismissed for joining
three officials as respondent in the election petition. In
paragraph 22 of the written statement respondent no.4 has
stated that paragraph 1 of the election petition under reply
is matter of record and therefore need not be commented
upon. In paragraph 23 of the written statement respondent
no.4 has stated that the statement made in paragraph 2 of
the election petition under reply that petitioner filed his
nomination paper on 6-4-2009 is a fact within the special
knowledge of the election petitioner and therefore need no
reply. As regards issue of check list, Annexure-2 without
indicating any defect in the nomination paper of the election
petitioner is concerned, respondent no.4 has stated that
issue of check list would not mean that the nomination
paper filed by the election petition is defect free if he has
not alleged any mischief by the custodian of the nomination
paper that his affidavit was lost intentionally and the
nomination paper was rejected. In paragraph 24 of the
written statement respondent no.4 has stated that it appears
that the Assistants deputed to assist the Returning Officer
at the time of presentation of nomination paper were
negligent towards their duties and therefore, could not
look into the nomination paper of the election petitioner
meticulously, as a result of which check list, Annexure-2
was issued by the Returning Officer which was prepared
by the Assistants assisting the Returning Officer. In
paragraph 25 of the written statement respondent no.4 has
considered the statement made in paragraph-3 of the
election petition under reply and stated that the said
statement is misconceived and denied. It is further stated
in the said paragraph that only because the check list was
issued in favour of the election petitioner would not mean
that his nomination paper was defect free, if at the time of
scrutiny of nomination paper defect in the. nomination
paper of the election petitioner was apparent on the face of
it. In paragraph 26 of the written statement respondent
no.4 has stated that statement made by the election
petitioner in paragraph 4 of the election petition under reply
is matter of record, therefore, require no comment. In
paragraph 27 of the written statement respondent no.4 has
considered the statement made in paragraph-5 of the
election petition under reply and stated that statements
made therein are matters of record and need no reply. In the
same paragraph, respondent no.4 further stated that so
called objection filed by the election petitioner on l2-4-2009
before the Returning Officer was misconceived as after the
scrutiny of nomination paper if decision is taken by the
Returning Officer, he is not competent to entertain any
objection against his own decision as law has not conferred
on the Returning Officer any power of review. In paragraph
28 of the written statement respondent no.4 has considered
the statement made in paragraph-6 of the election petition
under reply and stated that the same is misconceived and
therefore denied. The document contained in Annexure-5
of the election petition is Form 26 submitted by the election
petitioner along with his nomination paper, which
according to respondent no.4 was probably not read by
the election petitioner though he is a lawyer and according
to the information supplied by him regarding the nomination
paper, itself his qualification is M.A., L.L.B and has earlier
contested several elections. In paragraph 29 of the written
statement respondent no.4 has stated that second
paragraph of Form 26, Annexure-5 of the election petition
categorically states that it is an affidavit to be produced by
the candidate before the Returning Officer of the
Parliamentary Election to which the candidate is seeking
his election and in view of the contents of the said
paragraph according to respondent no.4 there is no room
for any doubt which led the election petitioner not to
support the contents of Form 26, Annexure-5 by an affidavit
while filing his nomination paper. In paragraph 30 of the
written statement respondent no.4 has stated that according
to the instructions of the Commission candidate is required
to file two separate affidavit along with his nomination
paper. One with regard to assets, liabilities and other with
regard to his antecedents. In paragraph 31 of the written
statement respondent no.4 has stated that election
petitioner filed his declaration regarding assets, liabilities,
which is duly supported by an affidavit affirmed before
Notary Public and thus in respect of second affidavit
supporting Form 26 he can not plead confusion on the
ground that Form 26 does not mention about seal and
signature of the authority before whom affidavit supporting
Form 26 has to be affirmed. In paragraph 32 of the written
statement respondent no.4 has considered the statement
made by the election petitioner in paragraph 7 of the election
petition and stated that the statements under reply are
misconceived in view of paragraph-9.6 of Chapter VI of the
Handbook for Returning Officers for conducting 2009
Parliamentary Election (hereinafter referred to as the
Handbook), which provides the list of the defects which
are required to be treated as a defect of substantial nature
for which a nomination paper could be rejected. In the
category of other cases, failure to file affidavit supporting
Form 26 and/or affidavit required by the Commission for
disclosing criminal antecedent, assets, liabilities and
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educational qualification are the defects of substantial
nature and therefore, nomination can be rejected for the
said defect. In paragraph 33 of the written statement
respondent no. 4 has stated that it is admitted position that
information supplied by the election petitioner in Form 26
was not supported by an affidavit in spite of instruction
contained in paragraph 9.6 of Chapter VI of the Handbook
and Returning Officer had committed no illegality if he has
rejected the nomination paper of the election petitioner on
that ground. In paragraph 34 of the written statement
respondent no. 4 has stated that order of rejection was
recorded by the Returning Officer in presence of authorised
representative of the election petitioner who neither raised
any objection nor sought for any time to remove the defect.
It has further been stated in the said paragraph that the
election petitioner should congratulate himself for the
aforesaid vital omission in his nomination paper, though
he himself is a lawyer and should not blame any other
person or authority for rejection of his nomination paper. It
is also stated in the said paragraph that authorised
representative of the election petitioner was also present
at the place of scrutiny. In paragraph 35 of the written
statement respondent no. 4 has stated that silence of the
election petitioner at the time his nomination paper was
rejected by the Returning Officer, has silenced his voice
but unnecessarily he is dragging this deponent in litigation
and is consuming valuable time of the court at the cost of
poor tax payer and other litigants who sincerely deserve
the protection of the court. In paragraph 36 of the written
statement respondent no.4 has stated that the
interpretation placed by the election petitioner of Section
36 (2) of the Act is also misconceived. It is further stated in
the said paragraph that after judgment of the Supreme Court
in the case of People’s Union for Civil Liberties (PUCL) and
Another Vs. Union of India and Another the provisions of
Section 33B of the Act became ultravires, a candidate is
required to comply with the instruction of the Commission
issued in the said judgment of the Supreme Court and if a
candidate fails to comply, there would be no other
punishment but to reject his nomination paper by the
Returning Officer. In paragraph 37 of the written statement
respondent no. 4 has considered the averments made in
paragraph 8 of the election petition under reply and stated
that the statement made therein are misconceived and
denied. It is further stated in the same paragraph that only
because Section 33A of the Act is not included under
Section 36(4) of the Act that would not mean that for non-
compliance of the provisions of Section 33A, a nomination
cannot be rejected as the Returning Officer has been
directed by the Commission to reject a nomination paper if
information required under Section 33A is not furnished
by the candidate on affidavit. In paragraph 38 of the written
statement respondent no. 4 has stated that instruction for
conducting the election is issued by the Commission in
exercise of its power under Article 324 of the Constitution.
The width and extent of the power of the Commission under
Article 324 has been the subject matter of decision of the
Supreme Court in catena of cases where the Supreme Court
has clearly laid down the law that where there is no
legislation on any aspect of conduct of election, Article
324 of the Constitution is reservoir of power for the
Commission to issue instruction with respect to free and
fair conduct of election and if the instructions were issued
by the Commission to reject a nomination paper if required
information under Form 26 has not been supported by an
affidavit, no fault can be found with the decision of the
Returning Officer rejecting the nomination of the election
petitioner for his failure to support Form 26 by an affidavit.
In paragraph 39 of the written statement respondent no. 4
has dealt with statements made by the election petitioner
in paragraph 9 of the election petition and stated that the
statements under reply are also misconceived and denied.
It is further stated in the said paragraph that it is true that
under Sub-section (4) of Section 36 of the Act a nomination
paper could not be rejected for a defect which is not of
substantial character but a defect which is not of substantial
character the concerned candidate or his authorised
representative is not interested to remove, the Returning
Officer has no option but to reject the nomination paper for
a defect which is not of substantial character. In paragraph
40 of the written statement respondent no. 4 has stated
that even for defect of non-substantial nature the Returning
Officer would be justified to reject a nomination paper if
there is none on behalf the candidate to remove the defect.
In the instant case, as per the direction of the Commission
there was no affidavit of the election petitioner supporting
Form 26 the Returning Officer was left with no option but
to reject his nomination paper as the authorised
representative of the election petitioner who was present
in the process of scrutiny did not ask for time and/or had
shown his willingness/readiness to remove the defect by
granting sometime. In paragraph 41 of the written statement
respondent no. 4 has considered the statement made in
paragraph 10 of the election petition under reply and has
stated that the contents of the paragraph under reply is
misconceived and therefore denied. In the same paragraph,
it is further stated that it is true that there should not be
any wrongful rejection of a nomination paper but it is not
that the Returning Officer would be bound to accept the
nomination paper with substantial defect even if the
concerned candidate is not available for removal of the
defect. In paragraph 42 of the written statement respondent
no. 4 has considered the statement made in paragraph 11
of the election petition under reply and stated that the
same is correct as under paragraph 21.1 of Chapter V of the
Handbook there is direction to the Returning Officer to
draw the attention of the candidate towards the defect and
a memo in this regard is required to be issued to the
candidate by the Returning Officer but it does not mean
that if the Returning Officer has failed to indicate defect in
memo he would be bound to accept a nomination paper if
at the time of scrutiny, it is found that required mandatory
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affidavits have not been filed along with nomination paper,
particularly when the concerned candidate is represented
through a representative duly authorised by the candidate
concerned and he does not request the Returning Officer
for time to remove the defects in the nomination paper. In
paragraph 43 of the written statement respondent no. 4 has
considered the statements made in paragraphs 12, 13, 14 of
the election petition under reply and stated that statements
under reply need not be controverted by the deponent
since they are matters of record. In paragraph 44 of the
written statement respondent no. 4 has considered the
statement made by the petitioner in paragraph 15 of the
election petition under reply and stated that the statement
under reply is misconceived and accordingly, denied. It is
further stated in the said paragraph that the nomination of
the election petitioner was rejected by the Returning Officer
for a defect of substantial character as the representative
of the election petitioner was not ready to remove the defect,
the election of the deponent cannot be declared void on
this ground and the election petition is fit to be dismissed
with cost. In paragraph 45 of the written statement
respondent no. 4 has stated that in view of the statement
made by him in the written statement the election petitioner
is not entitled to any relief as prayed in the election petition.
In paragraph 46 of the written statement respondent no. 4
has stated that statement made in paragraphs 17 to 19 of
the election petition under reply needs no comment. In
paragraph 47 of the written statement respondent no.4 has
again stated that the present election petition is devoid of
any merit and is, therefore, fit to be dismissed with cost. In
paragraph 48 of the written statement respondent no. 4 has
stated that he has not filed any written statement like the
present one earlier before this Court.
4. Having considered the rival pleadings of the
parties, under order no. 36 dated 25-4-2012 following issues
were framed :—
(i) Whether the nomination paper of election
petitioner for 25 Khagaria Parliamentary Constituency
Election 2009 was improperly rejected by the Returning
Officer?
(ii) Whether while improperly rejecting the
nomination paper of the election petitioner for the aforesaid
election, Returning Officer violated the statutory provisions
as also the instructions of the Election Commission of India?
(iii) Whether the election petition is maintainable in
the light of the provisions contained in Sections 81, 82 and
83 of the Representation of People Act, 1951 and deserved
to be dismissed under Section 86 and Order 7 Rule 11 C.P.C.?
5. In support of the election petition, election
petitioner examined himself as P.W.-1, his proposer
Sri Prabhakar Prasad Singh as P.W. -2, Sri Prabha Shankar
Singh as P.W. 3 and Sri Birendra Kumar Singh, Advocate
Civil Court, Khagaria as P.W. 4.
6. Election petitioner, P.W. 1 supported the contents
of the election petition by filing his examination in chief on
affidavit dated 8-12-2011. In paragraph 1 of the examination
in chief election petitioner stated that he has filed election
petition to declare the election of respondent no. 4 as void
and also for direction to hold fresh election for 25 Khagaria
Parliamentary Constituency. In paragraph 2 of the
examination in chief election petitioner stated that General
Election for 25 Khagaria Parliamentary Constituency was
notified on 2-4-2009 and as per the election programme the
last date for presenting nomination was 9-4-2009 and the
election was scheduled to be held on 30-4-2009. In
paragraph 3 of the examination in chief election petitioner
has stated that for contesting the impugned election he
got ticket from Communist Party of India. He filed his
nomination paper in proper form duly sworn before the
Notary Public, except affidavit in Form 26, which was
inadvertently not sworn as required. He further stated in
the same paragraph that the Returning Officer after
checking the nomination paper including Form 26 did not
point out any defect in the same and issued receipt in the
form of check list, copy whereof is annexed with the election
petition as Annexure-2. In paragraph 4 of the examination
in chief election petitioner stated that his nomination paper
was rejected by the Returning Officer on 11-4-2009 on the
ground that Form 26 was not duly sworn before a
Magistrate of 1st Class, Notary Public or Oath Commissioner
appointed by the High Court. In the same paragraph it is
further stated that the certified copy of the order rejecting
the nomination form of the election petitioner was received
by the election petitioner on 12-4-2009 and on the same
day he filed his objection to the rejection order, copy
whereof was also faxed to the Commission but the objection
to the rejection order was not considered. Copy of the
rejection order dated 11-4-2009 and objection dated
12-4-2009 are annexed as Annexures-3, 4 to the election
petition. In paragraph 5 of the examination in chief election
petitioner further stated that neither before scrutiny i.e.
before passing of order dated 11-4-2009 nor during scrutiny
on 11-4-2009 he was ever informed by the authorities about
the defect in Form 26 nor was he ever given any opportunity
to remove the said defect. In paragraph 6 of the examination
in chief election petitioner further stated that impugned
election was held as per schedule on 30-4-2009, result
whereof was declared on 16-5-2009 in which respondent
no.4 was declared elected. After appearance/filing of written
statement by respondent no. 4 and framing of issue under
order no. 36 dated 25-4-2012 election petitioner filed further
examination in chief on 2-5-2012 in which he again stated
that he had filed this election petition for declaring the
election of respondent no. 4 from 25-Khagaria Parliamentary
Constituency as void and also for a direction to hold fresh
election for the said Constituency. He further stated that
he filed his nomination paper for contesting the impugned
election on 6-4-2009 in four sets on the ticket of Communist
Party of India along with the required enclosures including
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statement in Form 26. The impugned election was held on
30.4.2009. He also stated in the further examination in chief
that he has taken oath of affirmation with respect to his
nomination papers before the Returning Officer cum District
Magistrate. He further stated in the examination in chief
that he had furnished affidavit annexed with the nomination
paper duly sworn before the Notary Public. His nomination
papers were checked by the Returning Officer on the same
day and it was found without any defect as per the check
list signed and authenticated by the Assistant/Returning
Officer, copy of which has been enclosed as Annexure-2 to
the election petition. It is further stated in the further
examination in chief that he had furnished all the details
regarding criminal cases etc. in the affidavit annexed with
nomination form as also duly filled Form-26 as per Rule 4A.
He further stated that he had duly signed Form 26 on the
same day before the Returning Officer which was annexed
with his nomination paper(s) and was checked by the
Returning Officer, whereafter oath of affirmation was taken
by the election petitioner before the Returning Officer. It is
also stated in the examination in chief that the last date for
filing nomination paper was 9-4-2009 and the date of
scrutiny was 11-4-2009. It is further stated in the further
examination in chief that scrutiny was scheduled in the
court room of the Returning Officer cum District Magistrate,
Khagaria located on the first floor of the Collectorate. It is
also stated in the further examination in chief that election
petitioner had authorised his proposer Sri Prabhakar Prasad
Singh to attend the scrutiny on his behalf as he was
recovering from multiple fractures in both his thigh bones
suffered in a road accident in October, 2008 and could walk
only with the aid of a walker. It is also stated in the further
examination in chief that on the date of scrutiny he remained
seated in his vehicle in the Collectorate compound. Later
in night he was told that his nomination paper has not
been accepted by the Returning Officer in spite of request
made by his proposer and party leader along with two
Advocates. It is also stated in the said examination in chief
that he applied for supply of the order if any passed by the
Returning Officer so as to know the reasons on which his
nomination paper(s) was not accepted. It is also stated
that the order of Returning Officer was supplied to the
election petitioner on 12-4-2009 whereafter he filed
objection petition before the Returning Officer, copy
whereof was also forwarded to the Commission through
fax, Annexures-3, 4. It is also stated in the further examination
in chief that the matter was also argued by three Advocates,
namely, M/s. Ashok Kumar Verma, Nalinesh Kumar Sinha,
Chamak Lal Singh, who appeared before the Returning
Officer on his behalf on 12-4-2009 but nothing was done
by the Returning Officer. Hence election petitioner had to
rush to Patna and on being advised filed C.W.J.C. No.4877
of 2009 before the High Court, Patna which was heard and
dismissed under order dated 17-4-2009 on the ground that
the remedy was by way of election petition, copy of the
order has already been annexed as Annexure-7 to the
election petition. It is also stated that against the order of
the High Court S.L.P. was filed but not accepted on the
same ground and therefore, withdrawn on 28-4-2009 with
liberty to raise the objection by filing election petition.
7. In cross-examination election petitioner has stated
in paragraph 1 that he is Master of Arts and Bachelor of
Law. In paragraph 2 of the cross-examination election
petitioner has stated that having obtained the licence he
practised for about 1 & 2 years and thereafter became whole
time worker of Communist Party of lndia. In paragraph 3 of
the cross-examination election petitioner has stated that
during his practice period; he had the occasion to see
affidavits. In paragraph 4 of the cross-examination election
petitioner has stated that affidavit is a statement on oath
made before the 1st Class Magistrate or Notary Public. In
paragraph 5 of the cross-examination election petitioner
has stated that having read the affidavit and verification
appended with the election petition, he put his signature
over the same. In paragraph 6 of the cross-examination
election petitioner has stated that there are 19 paragraphs
in his election petition. In paragraph 7 of the cross-
examination election petitioner has denied the suggestion
that his affidavit supporting the election petition does not
deal with paragraphs 7,8,9 and 10. In paragraph 8 of the
cross-examination election petitioner has stated that any
document which is in the form of an affidavit even without
the signature of the Notary or the Magistrate, may be treated
as affidavit. In paragraph 9 of the cross-examination election
petitioner has stated that the Form 26 shown to him was
appended by the election petitioner with his nomination
paper, which is marked as Ext. A. In paragraph 10 of the
cross-examination election petitioner has stated that it is
true that Form 26 which he filed with his nomination paper
does not contain the signature and seal of either a
Magistrate or Notary Public. In paragraph 11 of the cross-
examination election petitioner has stated that he had filed
nomination paper for the impugned election in four sets. In
paragraph 12 of the cross-examination election petitioner
has stated that the Form 26 appended by him with the
other three sets of nomination paper also does not contain
the signature and seal of either a Magistrate or Notary
Public, which is marked as Exts. A/l, A/2 and A/3. In
paragraph 13 of the cross-examination election petitioner
has stated that before filing nomination for contesting the
impugned election, he contested many elections for
Assembly, Parliament, Mukhiya and Pramukh. In paragraph
14 of the cross-examination election petitioner has stated
that he had been elected member of the Legislative
Assembly twice in the year 1990 and 1995. In paragraph 15
of the cross-examination election petitioner has stated that
during Assembly election of the year 1990, he was elected
member of the Assembly and there was partial tie up of CPI
with the Janta Dal. In the same paragraph election petitioner
further stated that in his constituency, however, Janta Dal
contested the election and defeating Janta Dal candidate,
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[PART II—SEC. 3(iii)]
he was elected member as representative of CPI. In
paragraph 16 of the cross-examination election petitioner
has stated that during 1995 Assembly Election also, there
was tie up with the Rastriya Janta Dal Party. In paragraph
17 of the cross-examination election petitioner has stated
that after he deposited the security amount for contesting
the impugned election, he was handed over copy of the
Hand Book for the candidate along with nomination paper.
In paragraph 18 of the cross-examination election petitioner
has stated that he read the Hand Book for the candidate
but as he had suffered fracture, he was under pain and
could not go through the Hand Book for the candidate
extensively in detail. In paragraph 19 of the cross-
examination election petitioner has stated that while filling
up the nomination paper, he took assistance from others.
In paragraph 20 of the cross-examination election petitioner
has stated that for presenting the nomination paper, he
had himself come to the Returning Officer. In paragraph 21
of the cross-examination election petitioner has stated that
for contesting any election, oath is required to be taken
before the Returning Officer. In paragraph 22 of the cross-
examination election petitioner has stated that those who
are in custody, they may take oath before the Jail
Superintendent. In paragraph 23 of the cross-examination
election petitioner has stated that he is not aware whether
any prospective candidate, who is ill, can take oath before
the Doctor attending on him. In paragraph 24 of the cross-
examination election petitioner has stated that at the time
of filing of his nomination paper, his four proposers,
Returning Officer, Assistant Returning Officer and the staff
assisting them were present. In paragraph 25 of the cross-
examination election petitioner has stated that for
conducting the impugned election, there were three
Assistant Returning Officers. In paragraph 26 of the cross-
examination election petitioner has stated that at the time
of presentation of his nomination paper, only one of the
three Assistant Returning Officers was present. In
paragraph 27 of the cross-examination election petitioner
has stated that at the time of presentation and receipt of
his nomination paper, Sri S.K. Pathak, Assistant Returning
Officer was present. In paragraph 28 of the cross-
examination election petitioner has stated that during
election, Sri S.K. Pathak was holding the substantive post
of Director, District Rural Development Agency, Khagaria.
In paragraph 29 of the cross-examination election petitioner
has stated that after administering oath, his nomination
paper was received by the Returning Officer.' In paragraph
30 of the cross-examination election petitioner has stated
that he had verified the contents of his nomination paper(s)
before presenting the same. In paragraph 31 of the cross-
examination election petitioner has stated that during the
scrutiny of the nomination paper(s) for the impugned
election, he was waiting in his vehicle in the Collectorate
campus. In paragraph 32 of the cross-examination election
petitioner has stated that at the time of scrutiny of the
nomination paper, his proposer, Sri Prabhakar Prasad Singh
was present. In paragraph 33 of the cross-examination
election petitioner has stated that at about 10.00 P.M., Sri
Prabhakar Prasad Singh informed him that his nomination
paper has been rejected. Prior thereto, he was not given
any information about the rejection of nomination paper.
In paragraph 34 of the cross-examination election petitioner
has stated that he received the information about the
rejection of his nomination paper in District Party Office. In
paragraph 35 of the cross-examination election petitioner
has stated that he was present in the Collectorate campus
until 7.00 P.M. In paragraph 36 of the cross-examination
election petitioner has stated that he has got mobile phone.
In paragraph 37 of the cross-examination election petitioner
has stated that on the date of scrutiny of nomination
paper(s), mobile phone was available with him. In
paragraph 38 of the cross-examination election petitioner
has stated that in the Hand Book of the Candidates given
by the Commission, there is no instruction for giving notice
to the candidate about the defect in his nomination paper,
provided the defect is found during the scrutiny of
nomination paper. In paragraph ·39 of the cross-examination
election petitioner has stated that he has also seen the
Hand Book for the Returning Officer. In paragraph 40 of
the cross-examination election petitioner has stated that
he does not recollect that there is any instruction in the
Hand Book of the Returning Officer to give notice to the
candidate during the scrutiny about the defect found in
the nomination paper. In paragraph 41 of the cross-
examination election petitioner has stated that there were
19 Candidates who filed nomination paper for contesting
the impugned election including the election petitioner. In
paragraph 42 of the cross-examination election petitioner
has stated that he is not aware about the number of sets of
nomination paper which the other Candidates had filed but
he filed nomination paper in four sets. In paragraph 43 of
the cross-examination election petitioner has stated that
he was informed on his mobile phone on the date of scrutiny
some time between 6.30 - 7.00 P.M. that the scrutiny of
nomination paper is over. In paragraph 44 of the cross-
examination election petitioner has stated that Form 26 filed
by him in four sets of nomination paper does not contain
the signature and seal of either a Magistrate or Notary
Public. In paragraph 45 of the cross-examination election
petitioner has stated that it is incorrect to suggest that the
Returning Officer did not commit any mistake by rejecting
his nomination· paper on the ground that there was no
signature and seal of a Magistrate or Notary Public over
Form 26 filed by him. In paragraph 46 of the cross-
examination election petitioner has stated that the Retuning
Officer never admitted in writing that he committed mistake
in rejecting his nomination paper, although during argument
on the basis of the petition dated 12-4-2009, Ext. 3, in
presence lawyers of election petitioner on 12-4-2009, he
verbally admitted that he committed mistake by rejecting
his nomination paper. In paragraph 47 of the cross-
examination election petitioner has stated that the three
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Lawyers. before whom the Returning Officer admitted his
mistake of rejecting the nomination paper of the election
petitioner on 12-4-2009 have not been included in the list
of witnesses filed by him in this Court. In paragraph 48 of
the cross-examination election petitioner has stated that it
is incorrect to suggest that he is deposing only with a view
to strengthen his case in this Court. In paragraph 49 of the
cross-examination election petitioner has admitted that in
his election petition, he has not stated that the Returning
Officer admitted before his three Lawyers on 12-4-2009 that
he committed mistake in rejecting the nomination paper of
the petitioner, but election petitioner has stated in the
election petition that three Lawyers appeared on his behalf
before the Returning Officer on 12-4-2009. In paragraph 50
of the cross-examination election petitioner has stated that
on the date of scrutiny of the nomination paper i.e.
11-4-2009, the Returning Officer informed Lawyers of the
petitioner that he shall again consider the matter tomorrow
i.e. on 12-4-2009 and such fact was also disclosed by the
Returning Officer to the election petitioner on his mobile
phone on 12-4-2009 when election petitioner spoke to the
Returning Officer on mobile. In paragraph 51 of the cross-
examination election petitioner has stated that he has
mentioned few of the aforesaid facts in his election petition
and not the whole of it. In paragraph 52 of the cross-
examination election petitioner has stated that it is incorrect
to suggest that he is deposing falsely in this Court. In
paragraph 53 of the cross-examination election petitioner
has stated that he handed over application dated
12-4-2009 to the Returning Officer sometime in between
11.00 A.M. - 12.00 Noon. In paragraph 54 of the cross-
examination election petitioner has stated that the
endorsement made in the margin of the application dated
12.4.2009 that the same is being received by the Returning
Officer at 7.30 P.M. is absolutely false, as the said application
was filed in between 11.00 A.M. 12.00 Noon, but the said
fact he has not stated in the election petition.
8. P. W. 2 Sri Prabhakar Prasad Singh stated in his
examination in chief that he is a voter of 25 Khagaria
Parliamentary Constituency and had proposed election
petitioner as a candidate of Communist Party of India for
contesting the impugned election. He further stated in his
examination in chief that election petitioner filed his
nomination paper on 6-4-2009 and at the time of presentation
of the nomination paper P. W. 2 accompanied the election
petitioner in the office of the Returning Officer. According
to P. W. 2 the nomination paper was duly filled in and also
supported by an affidavit affirmed before Notary Public.
Form 26 was also enclosed with the nomination paper duly
filled in and signed by the election petitioner. It is further
stated in the examination in chief that no defect was pointed
out by the Returning Officer and the check list to that
effect was furnished by the Returning Officer to the election
petitioner. P. W. 2 further stated that on the date of scrutiny
on nomination paper he was authorized by the election
petitioner to attend the scrutiny on his behalf. According
to P.W. 2 the scrutiny was conducted inside the court room
of the Returning Officer-cum-District Magistrate, Khagaria
located on the first floor of the Collectorate. It is also stated
in the examination in chief by P. W. 2 that he remained
present through out the scrutiny which began at about 11
A.M. and continued till late in the evening. Nothing was
informed to P.W. 2 about the scrutiny of various nomination
papers until about 5-6 O'clock, whereafter it was announced
that nomination paper of all other candidates, excepting
three candidates including the election petitioner has been
accepted. On enquiry P. W. 2 was informed that there is
some defect in the nomination paper of the three candidates
including the election petitioner. The defect was, however,
not clearly specified and P.W. 2 was asked to wait.
According to P.W. 2 the scrutiny was conducted on the
Izlas( court table) and the nomination papers were not
visible to P. W. 2. Later in the evening P. W. 2 was informed
that Form 26 filed by the election petitioner is not supported
by an affidavit affirmed before Notary/Magistrate, P.W. 2
immediately requested the Returning Officer to allow
removal of the defect, which was possible as the election
petitioner was present in the Collectorate campus itself but
such request was not accepted. P.W. 2 thereafter called Sri
Prabha Shankar Singh, P.W. 3 on mobile and informed him
about refusal of the Returning Officer to permit the election
petitioner to remove defect in his nomination paper. P.W. 3
also came to the Collectorate with two Advocates, namely,
Sri Durgesh Prasad Singh and Birendra Kumar Singh and
they made submission before the Returning Officer but the
Returning Officer did not accept the submission. Later in
the night it came to the notice of P.W. 2 that nomination
paper of the election petitioner has been illegally rejected
and objection about such rejection was filed on the next
date before the Returning Officer. In paragraph 1 of the
cross-examination P. W. 2 has stated that he is not related
to the election petitioner. In paragraph 2 of his cross-
examination P.W. 2 has stated that he is the District
Secretary of the Communist Party of India and proposed
the election petitioner as candidate for the impugned
election. In paragraph 3 of his cross-examination P. W. 2
has stated that he has contested local elections and for the
present, is member of the Panchayat Samiti, Chautham block
in the district of Khagaria. In paragraph 4 of his cross-
examination P.W. 2 has stated that he is B.A.(Hons.). In
paragraph 5 of his cross-examination P.W. 2 has stated that
he understood the meaning of affidavit, which is the
statement of the deponent sworn before the Magistrate or
Notary. In paragraph 6 of his cross-examination P.W. 2 has
stated that he had filed nomination paper for contesting
the Panchayat Samiti Election, 2011. In paragraph 7 of his
cross-examination P.W. 2 has stated that while filing
nomination paper for contesting the Panchayat Samiti
Election, he submitted the required affidavit. In paragraph
8 of his cross-examination P.W. 2 has stated that he had
affirmed the affidavit before the Notary Public. In paragraph
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[PART II—SEC. 3(iii)]
9 of his cross-examination P. W. 2 has stated that he
proposed the election petitioner for contesting the
impugned Election but earlier he had not proposed any
other candidate for contesting Parliamentary election. In
paragraph 10 of his cross-examination P.W. 2 has stated
that along with nomination paper the election petitioner
had to file affidavit. In paragraph 11 of his cross-examination
P. W. 2 has stated that he was present when the nomination
paper of the election petitioner was filled up. In paragraph
12 of his cross-examination P. W. 2 has stated that election
petitioner had filed the required affidavit along with
nomination paper. In paragraph 13 of his cross-examination
P. W. 2 has stated that along with nomination paper required
number of affidavits were. filed but he does not remember
the exact number of affidavit(s). In paragraph 14 of his
cross-examination P.W. 2 has stated that he does not
remember the number of affidavits which were filed by the
election petitioner along with his nomination paper. In
paragraph 15 of his cross-examination P.W. 2 has stated
that he had signed the nomination paper of the election
petitioner as his proposer and while putting his signature,
he had seen the nomination paper. In paragraph 16 of his
cross-examination P.W. 2 has stated that while putting his
signature on the nomination paper of election petitioner,
he had seen the same casually. In paragraph 17 of his cross-
examination P.W. 2 has stated that he cannot give the details
of the enclosures which were enclosed with the nomination
paper. In paragraph 18 of his cross-examination P. W. 2 has
stated that while putting his signature on the nomination
paper of the election petitioner, he had overturned the pages
of nomination paper and while overturning the pages, he
saw that the affidavits were enclosed with the nomination
paper. In paragraph 19 of his cross-examination P.W. 2 has
stated that he is aware that he filed his examination in chief
on affidavit in which he has stated that he read the contents
of the examination in chief and statements made therein are
correct. In paragraph 20 of his cross-examination P.W. 2
has stated that Form-26 filed along with nomination paper
of the election petitioner was not supported by an affidavit.
In paragraph 21 of his cross-examination P. W. 2 has stated
that he accompanied the election-petitioner when he had
gone to file his nomination paper. In paragraph 22 of his
cross-examination P. W. 2 has stated that nomination paper
was presented before the Returning Officer. In paragraph
23 of his cross-examination P. W.-2 has stated that the
nomination paper of the election-petitioner was received
by the Returning Officer. In paragraph 24 of his cross-
examination P.W. 2 has stated that Sri Abhay Kumar Singh
was the Returning Officer. In paragraph 25 of his cross-
examination P.W. 2 has stated that before submitting his
nomination paper, election petitioner had taken oath before
the Returning Officer. In paragraph 26 of his cross-
examination P.W. 2 has stated that the oath-form was also
annexed with the nomination paper. In paragraph 27 of his
cross-examination P.W.2 has stated that after oath,
nomination paper was received and thereafter receipt and
check-slip was given without performing any other
formality. In paragraph 28 of his cross-examination P.W. 2
has stated that at the time of receipt of the nomination
paper, election petitioner was given three or four documents
by the Returning Officer and he cannot give the details of
those documents. In paragraph 29 of his cross-examination
P.W. 2 has stated that on the date of scrutiny election
petitioner was present in the Collectorate campus, but he
had not gone to the court hall of the Collector where scrutiny
was conducted. In paragraph 30 of his cross-examination
P.W. 2 has stated that the scrutiny was being conducted in
the court hall of the Collector which is by the side of his
chamber on the first floor of the Collectorate building and
the election petitioner was waiting in his vehicle in the
Collectorate campus. In paragraph 31 of his cross-
examination P. W. 2 has stated that the scrutiny of
nomination papers commenced at about 11 A.M. and
continued until 9 P.M. In paragraph 32 of his cross-
examination P.W. 2 has stated that during the period
between 11 A.M. to 9 P.M. while the scrutiny was conducted,
he was present in the court hall and was sitting on the chair
meant for the candidate or his representative. In paragraph
33 of his cross-examination P. W. 2 has stated that during
the period of scrutiny, he was in the court hall of the
Collector and the election petitioner was sitting in his
vehicle as he suffered fracture. In paragraph 34 of his cross-
examination P. W. 2 has stated that election petitioner has
met with an accident in October, 2008 while he was travelling
in his jeep which collided head on with a bus. In paragraph
35 of his cross-examination P.W. 2 has stated that on the
date of presentation of the nomination paper, election
petitioner with the help of his four proposers came to the
first floor of Collectorate building and thereafter with the
help of a walker walked into the court hall of the Collector
for presenting the nomination paper to the Returning
Officer but on the date of scrutiny he could not be carried
to the first floor and the Izlas. Court Hall) of the Collector
as only one person, either the candidate or the proposer
was allowed to attend the scrutiny. In paragraph 36 of his
cross-examination P.W. 2 has stated on the date of
presentation election petitioner along with his four
proposers had gone to the court hall of the Collector to
submit his nomination paper to the Returning Officer. In
the same paragraph he also stated that as per the direction
of the Election Commission, candidate or his proposer was
only allowed to be present at the time of scrutiny of the
nomination paper. The witness volunteers that as the
election petitioner had presented his nomination papers in
four sets, four proposers along with the election petitioner
were present at the time of presentation of the nomination
paper. In paragraph 37 of his cross-examination P. W. 2 has
stated that besides him, the three proposers of the election
petitioner M/s. Ranjan Kumar Raj, Nand Kishore Yadav
and Dange Prasad Singh were present at the time of
presentation of the nomination paper. In paragraph 38 of
his cross-examination P. W. 2 has stated that on the date of
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scrutiny either the candidate or his proposer was allowed
to be present at the time of scrutiny of the nomination
paper. In paragraph 39 of his cross-examination P. W. 2 has
stated that it is incorrect to suggest that aforesaid statement
has been made by him only with a view to help the election
petitioner. In paragraph 40 of his cross-examination P. W. 2
has stated that he does not remember the number of
candidates who had filed their nomination paper to contest
the impugned election. In paragraph 41 of his cross-
examination P. W. 2 has stated that he does not remember
the number of sets of nomination paper which were filed
for contesting the impugned election. In paragraph 42 of
his cross-examination P. W. 2 has stated that serial number
of the nomination paper filed by the election petitioner was
one. In the same paragraph he has stated that he does not
recollect the serial number of the other three nomination
papers of the petitioner. In paragraph 43 of his cross-
examination P.W. 2 has stated that at the beginning of the
scrutiny process the Returning Officer announced that he
is going ahead with the scrutiny proceedings but he never
informed the candidate or the proposer present in the Court-
hall as to whose nomination paper is being scrutinized. In
paragraph 44 of his cross-examination P.W. 2 has stated
that no protest was lodged before the Returning Officer
either by him or any other candidate or proposer about the
aforesaid conduct of the Returning Officer. In paragraph
45 of his cross-examination P.W. 2 has stated that he did
not ask the Returning Officer to make available for his
perusal the nomination paper of any other candidate. In
paragraph 46 of his cross-examination P.W. 2 has stated
that no other candidate or proposer asked the Returning
Officer to make available the nomination paper of any other
candidate for his perusal. In paragraph 47 of his cross-
examination P.W. 2 has stated that in the evening after 6
P.M. Returning Officer announced that three of the
nomination papers have been found to be defective out of
the total nomination papers received for contesting the
impugned election which also included the nomination
paper of election petitioner. In paragraph 48 of his cross-
examination P.W. 2 has stated that before 6 P.M. the
Returning Officer did not make any announcement about
the validity of any nomination paper. In paragraph 49 of his
cross-examination P. W. 2 has stated that no objection was
taken by either the candidate or the proposer present during
the scrutiny that announcement about the result of the
consideration of the nomination be made no sooner the
scrutiny of a nomination paper is over. In paragraph 50 of
his cross-examination P.W. 2 has stated that after 6 P.M.
the Returning Officer announced the result of the scrutiny
proceeding by which time scrutiny of all the nomination
paper stood completed. In paragraph 51 of his cross-
examination P.W. 2 has stated that having learnt about the
fact that the nomination paper of the election petitioner
and two others have been found defective, he asked the
Returning Officer about the nature of defect in the
nomination paper of the election petitioner but Returning
Officer asked him to wait and began discussing the defect
found in the other two nomination paper. In paragraph 52
of his cross-examination P.W. 2 has stated that he was told
about the nature of the defect of the election petitioner at
about 7 P.M. In paragraph 53 of his cross-examination P.W.
2 has stated that having learnt about the nature of defect in
the nomination paper of the election petitioner, he
requested the Returning Officer for granting him time so as
to enable the election petitioner who is sitting in his vehicle
in the Collectorate campus to remove the defect. In
paragraph 54 of his cross-examination P.W. 2 has stated
that he made verbal request for granting time for removal
of defect by the election petitioner. In paragraph 55 of his
cross-examination P.W. 2 has stated that the Returning
Officer refused to grant time for removal of the defect by
the election petitioner. In paragraph 56 of his cross-
examination P.W. 2 has stated that he did not file any written
application asking the Returning Officer to grant
opportunity to the election petitioner to remove the defect.
In the same paragraph he further stated that he came out of
the Court-hall where he was given information about the
defect in the nomination paper of the election petitioner
and switched on his mobile which he was instructed to
switch off while sitting in the court hall and informed the
election petitioner who was sitting in his vehicle in the
Collectorate campus as also to one another leader sitting
in the C.P.I. Party office, Khagaria about the conduct of the
Returning Officer i.e. his refusal to grant opportunity to
remove the defect. In paragraph 57 of his cross-examination
P.W. 2 has stated that on the date of scrutiny, no application
was filed by the election petitioner seeking opportunity to
remove the defect. In the same paragraph it is further stated
that the written application for removal of defect was filed
on the next day before the Returning Officer. In paragraph
58 of his cross-examination P.W. 2 has stated that the written
application for removal of defect was addressed to the
Returning Officer. In paragraph 59 of his cross-examination
P.W. 2 has stated that he does not remember whether the
election petitioner wrote in his application the manner in
which Returning Officer refused to grant opportunity to
remove the defect as also the manner in which he gave
information to the election petitioner about refusal of the
Returning Officer to grant opportunity to remove the defect
in Form 26. In paragraph 60 of his cross-examination P.W. 2
has stated that on his information to the district leader
sitting in the Khagaria District C.P.I. Office, the leader came
to the office of the Returning Officer for removal of defect
along with two senior advocates of Khagaria Bar. In
paragraph 61 of his cross-examination P. W. 2 has stated
that the two advocates who came along with the district
leader were M/s. Durgesh Prasad Singh and Birendra Kumar
Singh. In paragraph 62 of his cross-examination P.W. 2 has
stated that he does not remember whether any of the two
advocates was a Notary Public. In paragraph 63 of his
cross-examination P. W. 2 has stated that out of the two, Sri
Durgesh Prasad Singh is senior advocate but Sri Birendra
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[PART II—SEC. 3(iii)]
Prasad Singh is not as senior as Sri Durgesh Prasad Singh.
In paragraph 64 of his cross-examination P. W. 2 has stated
that he does not remember the contents of the application
which the election petitioner filed on the next day of the
scrutiny before the Returning Officer. In paragraph 65 of
his ·cross-examination P.W. 2 has stated that it is not-correct
to suggest that he had not made any request to the
Returning Officer to grant opportunity for removal of defect
by the election petitioner. It is further stated in the same
paragraph that it is necessary to support Form-26 with an
affidavit, the affidavit supporting Form 26 was filed by the
election petitioner but the affidavit did not contain the seal
and signature of the Notary Public and for removal of such
defect, request was made. In paragraph 66 of his cross-
examination P.W. 2 has stated that it is incorrect to suggest
that his evidence is false.
9. Sri Prabha Shankar Singh, P.W. 3 in his examination
in chief has stated that he is voter of 25 Khagaria
Parliamentary Constituency and member of Communist
Party of India holding post of Secretariat Member, District
Council of Communist Party of India, District Khagaria as
well as member of State Council of Communist Party of
India, Bihar. He further states in his examination in chief
that election petitioner was nominated as a candidate of
Communist Party of India for the impugned election who
filed his nomination paper on 6-4-2009 and he came to know
that there was no defect in his nomination paper. The
scrutiny was scheduled for 11-4-2009. It is also stated in
the examination in chief of P.W. 3 that P.W. 2 who is the
District Secretary of Communist Party of India, Khagaria
proposed the candidature of the election petitioner and
was authorized to attend the scrutiny proceedings
conducted by the Returning Officer for the impugned
election. It is also, stated in the examination in chief that
P. W. 3 was informed by P.W. 2 on the date of scrutiny
through mobile at about 6.30 P.M. that the nomination paper
of election petitioner is not being accepted, the Returning
Officer has kept the same pending. Aforesaid information
was also given to the witness by the election petitioner
who instructed him to come with Advocate. The witness
immediately contacted Sri Durgesh Prasad Singh, Senior
Advocate and Sri Birendra Kumar Singh, Advocate and
along with them came to the. party office and then with the
election petitioner came to the Collectorate where scrutiny
was being conducted and P.W. 2 was present. The witness
further states that scrutiny was conducted inside the court
room of Returning Officer-cum-District Magistrate located
on the first floor of the Collectorate. It is also stated in the
examination in chief that the election petitioner was unable
to move without walker and he was not in a position to go
to the first floor, hence he stayed in his vehicle. The witness
met P.W. 2 and was informed that as the affidavit furnished
in Form 26 by the election petitioner along with nomination
paper did not contain the signature and seal of a Notary
Public or Ist Class Magistrate it was being considered as
defective and was not being accepted and the defect was
also not being allowed to be removed. Whereafter P. W. 3
and aforesaid Advocates along with P. W. 2 went inside
the court room of the Returning Officer after taking
permission and met the Returning Officer. It is also stated
in the examination in chief that both the Advocates
M/s. Durgesh Prasad Singh and Birendra Kumar Singh
made their submissions before the Returning Officer that
on the ground of defect in affidavit nomination paper
should not be rejected as the defect can be allowed to be
removed, which they are ready to rectify immediately but
the Returning Officer did not accept the submission. The
Advocates present thereafter requested the Returning
Officer for hearing and on their request the Returning Officer
granted time until 11 A.M. on the next day i.e. 12-4-2009. It
is further stated in the examination in chief by P.W. 3 that
on 12-4-2009 he along with election petitioner and three
Advocates, namely, M/s. Ashok Narayan Verma, Chamak
Lal Singh and Nalinesh Kumar and a few party workers
went to the Collectorate and with support and help of those
persons election petitioner came to the first floor of the
Collectorate where the court room and Chamber of the
Returning Officer is situate. Having come to the first floor
election petitioner filed objection before the Returning
Officer and the Returning Officer-cum-District Magistrate
heard his objection petition and arguments of the aforesaid
Advocates in his court room but did not accept the
submission and said that he has already passed order.
Whereafter the said objection was sent to the Commission
through fax. P.W. 3 further stated on 9-5-2012 that he filed
his examination in chief on affidavit, which is dated
8-5-2012 in which he referred to objection petition dated
12-4-2009 of the election petitioner which was not accepted
by the Returning Officer and was sent through fax to the
Commission. The objection petition dated 12-4-2009 filed
by the election petitioner and the fax receipt by which the
objection petition was sent to the Commission is contained
in Annexure-4, which is marked as Ext.4. In paragraph 1 of
his cross-examination P.W. 3 has stated that on 11-4-2009,
he along with two Advocates had appeared before the
Returning Officer to satisfy him about the objection raised
in connection with the nomination paper of the election
petitioner. In paragraph 2 of his cross-examination P. W. 3
has stated that he is a Graduate. In paragraph 3 of his
cross-examination P.W. 3 has stated that he has read the
contents of the affidavit containing his examination-in-
chief. In paragraph 4 of his cross-examination P.W. 3 has
stated that he could learn about the defect in the nomination
paper of the election petitioner on 11-4-2009 at about 6.30
P.M. In paragraph 5 of his cross-examination P.W. 3 has
stated that when he received the information about the
defect in the nomination paper of the election petitioner,
the election petitioner was not present. In paragraph 6 of
his cross-examination P.W. 3 has stated that at the time of
receipt of information from Sri Prabhakar Prasad Singh about
the defect in the nomination paper of the election petitioner,
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he was in his village Rahimpur and before he could speak
about the defect in the nomination paper to the election
petitioner, election petitioner himself spoke to him about
the defect on mobile phone. In paragraph 7 of his cross-
examination P.W. 3 has stated that he received telephonic
information from the election petitioner within 5-10 minutes
of having received telephonic information from
Sri Prabhakar Prasad Singh. In paragraph 8 of his cross-
examination P.W. 3 has stated that he is appearing as a
witness for the first time. In paragraph 9 of his cross-
examination P. W. 3 has stated that he has been reading in
newspaper(s) that if anyone is found deposing falsely, he
is prosecuted for giving false evidence. In paragraph 10 of
his cross-examination P.W. 3 has stated that he is not aware
about the deposition of the election petitioner, as such, he
cannot comment about the correctness or otherwise of the
statement made by the election petitioner in his evidence.
In paragraph 11 of his cross-examination P.W. 3 has stated
that his village Rahimpur is about 2 Kilometers away from
the CPI Party Office Khagaria in paragraph 12 of his cross-
examination P. W. 3 has stated that having learnt about the
defects from Sri Prabhakar Prasad Singh and election
petitioner, he came to the house of M/s Durgesh Prasad
Singh and Birendra Kumar Singh, both Advocates. In
paragraph 13 of his cross- examination P.W. 3 has stated
that residence of Sri Durgesh Prasad Singh is in the same
locality in which Collectorate Khagaria is situate, the
distance between the two is about 300 yards and the
residence of Sri Birendra Kumar Singh is about half
kilometer away from Collectorate Khagaria. In paragraph
14 of his cross-examination P.W.3 has stated that he
contacted Sri Durgesh Prasad Singh first and thereafter
Sri Birendra Kumar Singh who was brought to the
Collectorate with the help of a vehicle. In paragraph 15 of
his cross-examination P.W. 3 has stated that by the time he
contacted the Advocates, he was informed that the decision
on the nomination paper of the election petitioner has been
kept pending as there is defect in the nomination paper. In
paragraph 16 of his cross-examination P. W. 3 has confirmed
that he has stated the aforesaid facts in his examination-in-
chief. In paragraph 17 of his cross-examination P.W. 3 has
stated that objection petition dated 12-4-2009, Ext. 3 was
drafted on 12-4-2009. In paragraph 18 of his cross-
examination P.W. 3 has stated that before hearing on the
defect raised in connection with the nomination paper of
the election petitioner on 11-4-2009, no written application
explaining the defect was filed by or on behalf of the election
petitioner. In paragraph 19 of his cross-examination P. W. 3
has stated that while adjourning the hearing on the defect
raised in connection with the nomination paper of the
election petitioner on 11-4-2009 to 12-4-2009, the Returning
Officer did not pass any written order, but verbally
adjourned the proceeding to 12-4-2009. In paragraph 20 of
his cross-examination P.W. 3 has stated that election
petitioner in his objection dated 12-4-2009 has not stated
that hearing on the defects found in his nomination paper
took place on 11-4-2009 and was adjourned to 12-4-2009. In
paragraph 21 of his cross-examination P. W. 3 has stated
that no formal notice for hearing on 12-4-2009 with respect
to the defects in the nomination paper of the election
petitioner was issued. In paragraph 22 of his cross-
examination P.W. 3 has stated that hearing on the defects
in the nomination paper of the election petitioner was
held on 12-4-2009 between 11.00 A.M.—12.00 Noon. In
paragraph 23 of his cross-examination P.W. 3 has stated
that before hearing on 12-4-2009, written submission about
the defects was also filed but the Returning Officer did not
grant receipt, although his office made endorsement of
receipt on the petition itself. In paragraph 24 of his cross-
examination P. W. 3 has stated that he is unable to confirm
from the election petitioner whether the case, as has been
deposed by him and explained in cross-examination, is
stated in the election petition. In paragraph 25 of his cross-
examination P. W. 3 has stated that in his deposition, he
has not stated anything which would not appear to be a
fact, as video of the entire proceeding was taken, but he
does not have any copy of the video cassette. In paragraph
26 of his cross-examination P.W. 3 has stated that he is not
aware whether election petitioner made request to the High
Court for calling the video cassette. In paragraph 27 of his
cross-examination P.W. 3 has stated that election petitioner
did inform him about the election petition challenging the
impugned election. In paragraph 28 of his cross-
examination P.W. 3 has stated that details of the election
petition was not discussed with the election petitioner. In
paragraph 29. of his cross-examination P. W. 3 has stated
that after hearing on 12-4-2009 on the defects noticed in
the nomination paper of the election petitioner, the
Returning Officer only stated that he has already passed
an order in the matter, as such, he is not going to
reconsider the order and such fact has not been mentioned
in the petition, which was filed before the Returning
Officer on 12-4-2009 as the said petition was filed before
the hearing commenced. In paragraph 30 of his cross-
examination P.W. 3 having seen Ext.3, has stated that in
the margin of the first page of Ext., there are two
endorsement indicating 7.30 P.M, 5.20 P.M. In paragraph
31 of his cross-examination P. W. 3 has stated that it is
incorrect to suggest that the election petitioner was never
a serious candidate and he deliberately filed defective
nomination paper. In paragraph 32 of his cross-examination
P. W. 3 has stated that it is incorrect to suggest that he has
deposed falsely by stating that hearing took place to
consider the defects in the nomination paper of the election
petitioner after 11-4-2009 to be precise on 12-4-2009.
10. P.W. 4 Sri Birendra Kumar Singh stated in his
examination in chief dated 9-5-2012 that he is an Advocate
practicing in Civil Court, Khagaria and voter of 25 Khagaria
Parliamentary Constituency. Election petitioner was
nominated as candidate of Communist Party of India for
contesting the impugned election. On the date of scrutiny
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[PART II—SEC. 3(iii)]
of nomination papers for the impugned election P.W. 4
received call from P.W. 3 Prabha Shankar Singh at about 7
P.M. in the evening that there is some problem in acceptance
of the nomination paper of the election petitioner and
requested him to immediately come to the Communist Party
of India office from where they shall go to the office of the
Returning Officer for submitting arguments. P.W. 4
immediately came to the CPI party office located near his
house where Senior Advocate Sri Durgesh Prasad Singh
had also come. P.W. 4, Sri Durgesh Prasad Singh, election
petitioner P.W. 1 and P.W. 3 and others rushed to the
Collectorate where P.W. 2 was waiting from before. With
permission of the Returning Officer P.W. 4. along with
Sri Durgesh Prasad Singh, Senior Advocate and P.W. 3
went inside the hall where the scrutiny was held. It is also
stated that P.W. 3 and others were briefed about the details
as to why nomination paper of the election petitioner was
not being accepted as the affidavit furnished by him in
Form 26 filed along with nomination paper did not bear the
seal and signature of the Notary Public or Magistrate of
1st Class, hence defective and not acceptable. According
to P.W. 4 Sri Durgesh Prasad Singh, Senior Advocate and
the witness made submission and arguments for about an
hour and , tried to convince the Returning Officer that
there was no defect in furnishing the affidavit in Form 26 as
it is duly 'signed and presented by the election petitioner
before the District Magistrate-cum-Returning Officer who
is also a Magistrate of 1st Class and had power to administer
oath. It is also stated in the examination in chief that if the
Returning Officer considers Form 26 as defective, it is minor,
clerical defect, which must be ignored and the nomination
paper cannot be rejected on that ground. It is further stated
in the examination in chief that P.W. 4 and others requested
the District Magistrate-cum-Returning Officer to take
instructions from the Commission on the issue but
unfortunately the Returning Officer refused to do so,
though in case of another candidate Sri Bharat Kumar Yadav
who failed to mention the number of Constituency on his
nomination paper the Returning Officer spoke to the
Commission about the defect and accepted the nomination
paper of Sri Bharat Kumar Yadav. In case of election
petitioner Returning Officer, however, refused to speak to
the Commission. It is also stated in the examination in chief
that it was getting late and request was made for further
hearing on the next day and having made such request the
witness and others came back. In paragraph 1 of the cross-
examination P.W. 4 has stated that Sri Prabha Shankar Singh
P.W. 3 came to call him within 10 minutes of the mobile call
given by him at 7:00 P.M. In paragraph 2 of the cross-
examination P.W. 4 has stated that Sri Prabha Shankar Singh
had come on a Bolero vehicle and along with him he went
to CPI Party Office. In paragraph 3 of the cross-examination
P. W. 4 has stated that Sri Durgesh Prasad Singh, Advocate
was also in the same vehicle. In paragraph 4 of the cross-
examination P.W. 4 has stated that he and others waited in
the Party Office hardly for 2 - 3 minutes and came back to
the Collectorate, In paragraph 5 of the cross-examination
P.W. 4 has stated that when they reached Collectorate,
election petitioner also accompanied them in his vehicle
and he remained seated in his vehicle while they had gone
to the Returning Officer to explain the defect in the
nomination paper of the election petitioner. In paragraph 6
of the cross-examination P.W. 4 has stated that when he
and others entered the scrutiny premises they found that
the Returning Officer was stilI in the court hall where he
had conducted scrutiny process. In paragraph 7 of the
cross-examination P. W. 4 has stated that he and Sri Durgesh
Prasad Singh, argued before the Returning Officer about
the so called defect in the nomination paper of the election
petitioner. In paragraph 8 of the cross-examination P.W. 4
has stated that he and Sri Durgesh Prasad Singh had come
to appear before the Returning Officer without any
Vakalatnama from the election petitioner. In paragraph 9 of
the cross-examination P. W. 4 has stated that no authority
letter was issued by the election petitioner either in his
favour or in favour of Sri Durgesh Prasad Singh to represent
his case before the Returning Officer. In paragraph 10 of
the cross-examination P. W. 4 has stated that they made
submission with the oral permission of the Returning Officer,
although, no written authority letter or vakalatnama was
given to them by the election petitioner. In paragraph 11 of
the cross-examination P.W. 4 has stated that by the time
he, Durgesh Prasad Singh and Prabha Shankar Singh had
come to the Returning Officer to argue on behalf of the
election petitioner the consideration of nomination paper
of the election petitioner was kept pending. In paragraph
12 of the cross-examination P. W. 4 has stated that after
arguments were made by him and Sri Durgesh Prasad Singh,
the Returning Officer did not pass any order. In paragraph
13 of the cross-examination P.W. 4 has stated that while
they were arguing the matter before the Returning Officer
on 11-4-2009, the Returning Officer himself volunteered
that the matter is adjourned to 12-4-2009 as it is too late in
the evening. In paragraph 14 of the cross-examination P.W.
4 has stated that it is absolutely incorrect and false to
suggest that he has deposed falsely. In paragraph 15 of the
cross-examination P.W. 4 has stated that after hearing was
adjourned on 11-4-2009, he came down in the Collectorate
premises and informed the election petitioner about the
development which had taken place before the Returning
Officer. In paragraph 16 of the cross-examination P. W. 4
has stated that he is not aware about the contents of the
election petition but whatever actually transpired during
hearing was disclosed to the election petitioner. In
paragraph 17 of the cross-examination P. W. 4 has stated
that affidavit is the statement of the deponent on oath
made before the Magistrate of 1st Class or Notary Public.
In paragraph 18 of the cross-examination P. W. 4 has stated
that statement of the deponent even without signature
and seal of the Magistrate or the Notary Public is an
Affidavit. In paragraph 19 of the cross-examination P. W. 4
having seen the affidavit filed in support of the election
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89
petition states that the affidavit, even without the seal and
signature of the Oath Commissioner, would be an affidavit.
In paragraph 20 of the cross-examination P. W. 4 having
seen Paragraph-l of Page No.3 of his Examination-in-Chief
states that he had submitted before the Returning Officer
that the defect pointed out in the nomination paper of the
election petitioner that the same did not contain the seal
and signature of the Magistrate/Notary was not a defect,
even assuming the same to be a defect, the defect was a
minor defect, which should be ignored. In paragraph 21 of
the cross-examination P.W. 4 has stated that he has seen
two separate list containing substantial and minor defects.
In paragraph 22 of the cross-examination P.W. 4 has stated
that he does not remember the list in which the defect
regarding omission to obtain seal and signature of the
Magistrate/Notary over the affidavit is included. In
paragraph 23 of the cross-examination P.W_ 4 has stated
that Sri Durgesh Prasad Singh had argued before the
Returning Officer with reference to a book that the defect
pointed out in connection with the nomination paper of
the election petitioner regarding omission to obtain seal
and signature of the Magistrate/Notary over Form 26 was
a minor defect. In paragraph 24 of the cross-examination
P.W. 4 has stated that the book which was referred to by Sri
Durgesh Prasad Singh was concerning election matters. In
paragraph 25 of the cross-examination P.W. 4 has stated
that he does not remember the name of the book. In
paragraph 26 of the cross-examination P.W. 4 has stated
that he is not aware of any hand-book for the Returning
Officer. In paragraph 27 of the cross-examination P. W. 4
has stated that it is not a fact that hand-book for the
Returning Officer contain instruction to reject the
nomination paper of a candidate, which is bereft of seal
and signature of the Magistrate/Notary over Form 26. In
paragraph 28 of the cross-examination P.W. 4 has stated
that while arguments in regard to the defect noticed in the
nomination paper of the election petitioner was being made,
reference was also made to the defect in the nomination
paper of Bharat Kumar Yadav in regard to his omission to
mention the number of Parliamentary Constituency in the
nomination form and at the request of Sri Yadav Returning
Officer sought guidance from the Commission but such
request made on behalf of the election petitioner was
rejected by the Returning Officer. In paragraph 29 of the
cross-examination P. W. 4 has stated that the statement
made in second paragraph at page-3 of his Examination-in-
Chief is with regard to the events which took place on
11-4-2009. In paragraph 30 of the cross-examination P.W. 4
has stated that on 12-4-2009 he had not appeared before
the Returning Officer, as such, he is not aware what was
written in the representation which was filed before the
Returning Officer on 12-4-2009. In paragraph 31 of the
cross-examination P.W. 4 has stated that it is incorrect to
say that no argument in regard to the defect noticed in the
nomination paper of the election petitioner took place
before the Returning Officer on 11-4-2009. In paragraph 32
of the cross-examination P.W. 4 has stated that it is incorrect
to suggest that he has made incorrect statement about the
argument having been made before the Returning Officer
in regard to the defects noticed in the nomination paper of
the election petitioner on 11-4-2009. In paragraph 33 of the
cross-examination P.W. 4 has stated that he is aware about
the arguments which took place on 11-4-2009 but not aware
about the contents of petition which was filed on 12-04-
2009 and the argument made in support thereof. In
paragraph 34 of the cross-examination P. W. 4 has stated
that it is incorrect to suggest that no hearing on the defects
noticed in the nomination paper of the election petitioner
took place on 11-4-2009 but he is not aware whether such
fact has been mentioned in the representation which was
filed by the election petitioner on 12-4-2009 and in the
election petition.
11. Respondent no.4 has examined four witnesses
to support the validity of the order rejecting the nomination
paper of the election petitioner as according to respondent
no.4 the contents of Form 26 filed by the election petitioner
along with his nomination paper was not supported by an
affidavit duly affirmed before a Magistrate of 1st Class or
Notary Public his nomination paper was properly rejected
as neither election petitioner nor his authorised
representative present at the time of scrutiny of the
nominations requested for grant of opportunity to remove
the defect noticed in Form 26 by the Returning Officer.
12. R.W. 1 is Sone Lal Mehta who is proposer of
respondent no.4 in one of the nomination paper filed by
him to contest the impugned election. R.W. 1 states in his
examination in chief that he accompanied respondent no.4
and was present in the Chamber of the Returning Officer
while he was receiving nomination paper from the
candidates. After receiving the nomination paper of
respondent no.4 the Returning Officer handed over the
nomination paper to the Assistants present in his Chamber
to assist the Returning Officer in receiving the nomination
paper. The Assistants present in the Chamber went
through the nomination paper of respondent no.4 and the
enclosures enclosed there with and when no defect was
found in the nomination paper a check slip was issued by
the Returning Officer indicating that no defect has been
found in the nomination paper of respondent no.4. The
Returning Officer further served on the respondent no.4
notice regarding receipt of nomination paper and intimation
about the date of scrutiny which was scheduled on
11-4-2009. It is further stated in the examination in chief by
R. W. 1 . that respondent no.4 authorised R.W. 1 to attend
the process of scrutiny on behalf of respondent no.4 and
that he went to attend the process of scrutiny on 11.4.2009
on behalf of respondent no.4. It is also stated in the
examination in chief by R. W. 1 that he did not require any
authorisation from respondent no.4 in writing because he
was proposer of respondent no.4 and the proposers also
has right to attend the process of scrutiny. R. W. 1 reached
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the place of scrutiny at 10.45 A.M. and the Returning
Officer took his seat in the scrutiny hall at about 11 A.M.
where Returning Officer was assisted by the Assistant
Returning Officer and the Assistants in the process of
scrutiny. The scrutiny was being held in the court room of
the District Magistrate, Khagaria. Further statement has
been made in the examination in chief that the process of
scrutiny commenced at about 11 A.M., the candidates and/
or their authorised representative were provided
opportunity to go through the nomination paper of other
candidates. The scrutiny of nomination paper filed by the
election petitioner was undertaken at about 8 P.M. when
his representative Sri Prabhakar Prasad Singh was present
at the place of scrutiny. The Returning Officer having taken
up nomination paper of the election petitioner for scrutiny
immediately informed Sri Prabhakar Prasad Singh, the
representative of the election petitioner the defect in Form
26 filed by the election petitioner along with his nomination
paper as Form 26 filed by the election petitioner is not
supported by an affidavit required by law as there is neither
seal nor signature of the Executive Magistrate 1st Class or
the Notary Public or the Oath Commissioner on Form 26
and the nomination of the election petitioner is defective,
which if not removed the nomination paper of the election
petitioner would be rejected. It is also stated in the
examination in chief of R. W. 1 that Sri Prabhakar Prasad
Singh the authorised representative of the election
petitioner did not say anything to the Returning Officer
about the defect. It is also stated in the examination in
chief that Sri Prabhakar Prasad Singh did not even ask for
time from the Returning Officer so that the defects can be
removed by getting the contents of Form 26 supported by
an affidavit. It is also stated in the examination in chief
that after hearing the observations of the Returning Officer
Sri Prabhakar Prasad Singh left the place of scrutiny and
thereafter neither Prabhakar Prasad Singh nor the election
petitioner nor any representative on his behalf came before
the Returning Officer for removal of defect and therefore
the Returning Officer rejected the nomination paper of the
election petitioner. It is also stated in the examination in
chief that R. W. 1 remained present at the place of scrutiny
till the process was over and left the place when nothing
was required to be done by the Returning Officer so far
process of scrutiny is concerned. It is also stated in the
examination in chief that Sri Prabhakar Prasad Singh the
authorised representative of the election petitioner had
never demanded any time either for removal of the defect
or for the purpose of hearing regarding the nature of defect
found in the nomination paper of the election petitioner. It
is also stated in the examination in chief of R. W. 1 that he
had not filed any application before the Returning Officer
asking for adjournment of the scrutiny process for any
purpose whatsoever. In paragraph 1 of his cross-
examination R. W. 1 has stated that he is member of Janta
Dal United Party. In paragraph 2 of his cross-examination
R. W. 1 has stated that he won election as a Ward Member
in 1984 Municipal Election. In paragraph 3 of his cross-
examination R. W. 1 has stated that while filing his own
nomination paper during 1984 Municipal Election he had
also taken oath before the Sub-Divisional Officer. In
paragraph 4 of his cross-examination R.W. 1 has stated
that for the impugned election, he proposed Respondent
No.4. In paragraph 5 of his cross-examination R.W. 1 has
stated that Sri Dinesh Chandra Yadav filed his nomination
paper in 4 sets on 7-4-2009 after 12 noon. In paragraph 6 of
his cross-examination R. W. 1 has stated that he does not
remember in which of the nomination paper filed by
Respondent No.4 he was his proposer. In paragraph 7 of
his cross-examination R. W. 1 has stated that he was also
present at the time of filing of the nomination paper by
Respondent No.4. In paragraph 8 of his cross-examination
R.W. 1 has stated that respondent no. 4 had also taken
oath before the Returning Officer after filing his nomination
paper. In paragraph 9 of his cross-examination R. W. 1 has
stated that all the candidates who filed nomination paper
to contest election are required to take oath before the
Returning Officer. In paragraph 10 of his cross-examination
R. W. 1 has stated that the oath is taken at the time of filing
of the nomination paper. In paragraph 11 of his cross-
examination R.W. 1 has stated that while putting his
signature as proproser of Respondent No. 4 he did not
read the contents of his nomination paper. In paragraph
12 of his cross-examination R. W. 1 has stated that he
does not remember the description of Annexure-1 which
was appended with the nomination paper of Respondent
No. 4. In paragraph 13 of his cross-examination R. W. 1
has stated that he does not remember the details of the
contents of Form 26 filed by Respondent No.4. In
paragraph 14 of his cross-examination R. W. 1 has stated
that after filing of the nomination paper by Respondent
No. 4 he was given check-slip by the officer who received
the nomination paper. In paragraph 15 of his cross-
examination R. W. 1 has stated that in the check-slip
description of the documents filed by Respondent No.4
along with the nomination paper was indicated. It is also
stated in the same paragraph that the check-slip did not
contain any information about the defects in the
nomination paper. In paragraph 16 of his cross-examination
R. W. 1 has stated that he is not aware about those
candidates who filed their nomination paper on 6.4.2009.
In paragraph 17 of his cross-examination R.W. 1 has stated
that he was also present at the time of scrutiny of the
nomination paper of Respondent No.4. In paragraph 18 of
his cross-examination R.W. 1 has stated that he does not
remember the name of all the candidates, whose nomination
paper was scrutinized on the date of scrutiny. In paragraph
19 of his cross-examination R. W. 1 has stated that he is
not aware as to when the scrutiny of the nomination paper
of other candidates was taken up. In paragraph 20, 27 of
his cross-examination R.W. 1 has stated that he does not
remember the exact time when the scrutiny of the
nomination paper of other candidate(s) was completed. In
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the same paragraph he states that scrutiny of nomination
paper of election petitioner was taken up in the end and
was completed at about 8 P.M. In paragraph 21 of his
cross-examination R.W. 1 has stated that he had not seen
the nomination paper of any of the candidates. In
paragraph 22 of his cross-examination R.W. I has stated
that he and the others who were present to watch the
scrutiny proceedings were not shown the nomination
paper of the candidates by the Returning Officer or his
assistants. In paragraph 23 of his cross-examination
R. W. 1 has stated that the scrutiny of the nomination
paper of Respondent No.4 had begun at 11 A.M. and it
continued for half an hour or little more and was accepted
by 11.45 A.M. In paragraph 24 of his cross-examination
R. W. 1 has stated that after the scrutiny of nomination
paper of Respondent No.4 was over, he kept waiting in the
Court-hall where the nomination paper was being
scrutinized in order to know the result of the scrutiny of
the nomination paper of the other candidates. In paragraph
25 of his cross-examination R. W. 1 has stated that no
defect was pointed out in any other nomination paper
except nomination paper of the election petitioner. In
paragraph 26 of his cross-examination R. W. 1 has stated
that he does not remember the time on which the scrutiny
of the nomination paper of Sri Bharat Kumar Yadav was
taken up. In paragraph 28 of his cross-examination R.W. 1
has stated that he had not seen the nomination paper of
the election petitioner. In paragraph 29 of his cross-
examination R. W. 1 has stated that as he had not seen the
nomination paper of election petitioner, he is not aware
which of the documents he annexed with the nomination
paper. In paragraph 30 of his cross-examination R. W. 1
has stated that he left the place of scrutiny after the
Returning Officer left the place of scrutiny. In paragraphs
31, 32, 33 of his cross-examination R.W. 1 has stated that
Sri Prabhakar Prasad Singh, P.W. 2 who is leader of the
Communist Party of India and had come to watch the
scrutiny proceeding at about 12 Noon and remained there
until scrutiny proceeding continued. In paragraph 34 of
his cross-examination R. W. 1 has stated that statements
about the antecedents of the candidate made in Form 26 is
required to be supported by an affidavit. In paragraph 35,
36, 37 of his cross-examination R.W. 1 has stated that he is
not aware as to whether Form 26 is printed in English or
Hindi as also the contents of the different columns
including the fact whether it contains the designation and
description of the authorities before whom the affidavit is
to be affirmed. In paragraph 38 of his cross-examination R.
W. 1 has stated that he is not aware whether the antecedent
of the candidate is also included in Annexure-I appended
with the nomination paper. In paragraph 39 of his cross-
examination R.W. 1 has stated that he does not recall
whether he had became propose of any other candidate
earlier. In paragraph 40 of his cross-examination R.W. 1
has stated that besides him there were three proposers of
respondent no.4, namely, M/s. Kanchan Patel, Arun Kumar
Yadav and Jitendra Prasad Singh. In paragraph 41 of his
cross-examination R.W. 1 has stated that besides him Sri
Kanchan Patel, the other proposer of respondent no.4 was
also present during the scrutiny proceeding. In paragraph
42 of his cross-examination R.W. 1 has stated that he is
not aware about the restriction imposed by the Returning
Officer on the number of proposers attending the scrutiny
proceeding for the candidate, as along with him, Sri
Kanchan Patal, the other proposer of respondent no.4 was
also present. In paragraph 43 of his cross-examination R.W.
1 has stated that he had come to attend the scrutiny
proceeding without obtaining any pass or authorisation.
In paragraph 44 of his cross-examination R.W. 1 has stated
that respondent no.4 was not present during the scrutiny
of his nomination paper. In paragraph 45 of his cross-
examination R. W. 1 has stated that it is incorrect to suggest
that after the scrutiny of the nomination paper of a particular
candidate was over, the representative of that candidate
was asked to leave the scrutiny hall. In paragraph 46 of his
cross-examination R. W. 1 has stated that he knew Sri
Birendra Kumar Singh, Advocate Khagaria. In paragraph
47 of his cross-examination R. W. 1 has stated that on the
date of scrutiny, Sri Birendra Kumar Singh Advocate had
not come to the scrutiny hall, but Sri Prabha Shankar Singh
and Sri Prabhakar Prasad Singh being the same person
was present from before. In paragraph 48 of his cross-
examination R. W. 1 has stated that on the date of scrutiny,
Sri Prabha Shankar Singh, resident of Pachkuti, Rahimpur
was present in the scrutiny hall, but Sri Prabhakar Prasad
Singh, son of late Badra Narayan Singh of village Malpa
was not present in the scrutiny hall, though I recognise
only one of the two i.e. Sri Prabha Shankar Singh of
Pachkuti, Rahimpur. In paragraph 49 of his cross-
examination R.W. 1 has stated that he does not recognise
Sri Prabhakar Prasad Singh of village Malpa. In paragraph
50 of his cross-examination R.W. I has stated that it is true
that if he does not recognise Sri Prabhakar Prasad Singh
of village Malpa, he cannot say. whether he was present
in the scrutiny hall during the scrutiny proceeding. In
paragraph 51 of his cross-examination R.W. 1 has stated
that suggestion that M/s Prabhakar Prasad Singh, Prabha
Shankar Singh and Birendra Kumar Singh had come to the
scrutiny hall on the date of scrutiny proceeding for
removing the defects noticed in the nomination paper of
the election petitioner is wholly incorrect, as no such
attempt or request for removing the defects was ever made
by the persons named above on the date of scrutiny. In
paragraph 52 of his cross-examination R.W. 1 has stated
that suggestion that the Retuning Officer admitted during
the scrutiny proceeding before M/s Prabhakar Prasad
Singh, Prabha Shankar Singh and Birendra Kumar Singh
that he had committed mistake in rejecting the nomination
paper of the election petitioner is incorrect, as after the
defect was pointed out by the Returning Officer in the
nomination paper of the election petitioner, Sri Prabha
Shankar Singh of village Rahimpur stated before the
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Returning Officer that as the defects are there, he may
pass appropriate order. In paragraph 53 of his cross-
examination R.W. 1 has stated that it is absolutely incorrect
to suggest that Sri Prabha Shankar Singh of village
Rahimpur requested the Returning Officer to grant him
opportunity to remove the defects. In paragraph 54 of his
cross-examination R. W. 1 has stated that it is incorrect to
suggest that he left the scrutiny hall after the scrutiny of
nomination paper of respondent no.4 was over, as he
continued to remain in the scrutiny hall until the scrutiny
proceeding of others continued.
13. R.W. 2 Kanchan Patel stated in his examination
in chief that he was proposer of respondent no.4 in one of
the four sets of nomination paper, which he filed to contest
the impugned election. He has further stated that when
respondent no.4 filed his nomination paper before the
Returning Officer he also accompanied respondent no.4
and was present in the Chamber of Returning Officer where
he received nomination paper of candidates. R. W. 2 further
stated in his examination in chief that after receipt of
nomination paper of respondent no.4 Returning Officer
passed it to the Assistants present in his Chamber to assist
the Returning Officer. The Assistants went through the
nomination paper of respondent no.4 together with the
enclosures appended therewith and as no defect was
found in the nomination paper a check slip was issued by
the Returning Officer indicating that no defect is found in
the nomination paper of respondent no.4. It is also stated
in the examination in chief by R.W. 2 that the Returning
Officer had also given a notice to respondent no.4
regarding receipt of the nomination paper and the date of
its scrutiny, which was scheduled for 11-4-2009. It is further
stated in the examination in chief by R.W. 2 that respondent
no.4 authorised him to attend the process of scrutiny on
his behalf and therefore he went to attend the process of
scrutiny of nomination paper on 11-4-2009 on behalf of
respondent no.4. He also stated that he did not require
any authorisation by respondent no.4 in writing because
he was proposer of respondent no.4 and the proposer
also have right to attend the scrutiny proceeding. It is
further stated by R. W. 2 in his examination in chief that he
reached the place of scrutiny at about 10.45 A.M. and the
Returning Officer took his seat at about 11 A.M. The
Returning Officer was being assisted in the scrutiny of
nomination paper by the Assistant Returning Officer and
the Assistants. Scrutiny was conducted in the court room
of the District Magistrate. The process of scrutiny was
taken up at 11 A.M., the candidate and/or their authorised
representative were provided opportunity to go through
the nomination paper of other candidates. The scrutiny of
nomination paper filed by the election petitioner was
undertaken at about 8 P.M. when his representative
Prabhakar Prasad Singh was present at the place of
scrutiny. The Returning Officer immediately after he had
taken up the nomination paper of the election petitioner
for scrutiny informed Sri Prabhakar Prasad Singh the
representative of the election petitioner about the defect
in Form 26 filed by the election petitioner along with his
nomination paper. The Returning Officer informed Sri
Prabhakar Prasad Singh that Form 26 is not supported by
an affidavit, as is required by law as there is neither seal
nor signature of the Magistrate of Ist Class or Notary
Public or Oath Commissioner appointed by the High Court
on Form 26 filed by the election petitioner is available and
thus the nomination paper of the election petitioner is
defective and liable to be rejected. Prabhakar Prasad Singh
the authorised representative of the election petitioner
did not say anything to the Returning Officer about the
defect. He did not even ask for time from the Returning
Officer so that the defects can be removed by getting
Form 26 supported by an affidavit. After having heard the
observations of the Returning Officer Sri Prabhakar Prasad
Singh left the place of scrutiny and thereafter neither
Prabhakar Prasad Singh nor the election petitioner nor
any representative on behalf of the election petitioner came
before, the Returning Officer for removal of the defects
and therefore, the Returning Officer rejected the
nomination paper of the election petitioner. It is also stated
in the examination in chief that R. W. 2 remained present at
the place of scrutiny till the process of scrutiny continued
and left the place of scrutiny when nothing was required
to be done by the Returning Officer for completing the
process of scrutiny. It is further stated in the examination
in chief by R. W. 2 that Prabhakar Prasad Singh the
authorised representative of the election petitioner had
never demanded any time either for removal of the defects
or for the purpose of hearing regarding the nature of defect
found in the nomination paper of the election petitioner. It
is also stated that P.W. 2 did not file any application before
the Returning Officer asking for adjournment of the
scrutiny proceeding or for any other purpose whatsoever.
In paragraph 1, 2 of the cross-examination R.W. 2 stated
that he is an agriculturist and came to Patna yesterday. In
paragraph 3 of the cross-examination R. W. 2 stated that
he has not met Sri Sone Lal Mehta. In paragraph 4 of the
cross-examination R. W. 2 stated that he is staying in the
MLA flat of Sri Surendra Mehta, BJP MLA. In paragraph 5
of the cross-examination R.W. 2 stated that he is Member
of the BJP State Executive Committee. In paragraphs 6 to 9
and 11 to 15 of the cross-examination R. W. 2 stated that in
the impugned election he was one of the proposer of
respondent no.4 and filed his nomination paper on
7-4-2009 and he had gone with respondent no.4 to file the
nomination paper which was presented by respondent
no.4 before the Returning Officer and he also signed and
took oath before him but he did not go through the contents
of nomination paper of respondent no.4 including
Annexure-1, Form 26 after presentation of nomination
paper the same was checked by Receiving Officer. After
checking of the nomination paper check slip was given to
the candidate who presented nomination paper. In
paragraph 10 of the cross-examination R. W. 2 stated that
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he is not aware whether other candidates also signed and
took oath before the Returning Officer while submitting
their nomination paper. In paragraph 16 of the cross-
examination R. W. 2 stated that on 11-4-2009, the date of
scrutiny, he had gone to the place of scrutiny at 11.30
A.M. In paragraphs 17 to 19 of the cross-examination
R. W. 2 stated that he is not aware about the number of
persons present during the scrutiny as also the name of
candidates who were themselves present during the
scrutiny proceeding together with the name of their
proposers. In paragraph 20 of the cross-examination R. W.
2 has stated that he does not recollect the time when the
scrutiny of the nomination paper of any other candidate
was taken up and scrutiny completed. In paragraph 21 of
the cross-examination R.W. 2 has stated that he does not
recollect the nature of the defects as also the candidate
other than the election petitioner in whose nomination
paper defect was pointed out by the Returning Officer
during the scrutiny proceeding. In paragraph 22 of the
cross-examination R.W. 2 has stated that he does not
recollect even the number of candidates, who filed
nomination paper. In paragraphs 23 to 25 of the cross-
examination R. W. 2 has stated that he does not remember
whether he was given any pass or authority letter for being
present in the scrutiny proceeding including the fact
whether he signed any attendance register in token of
having attended the scrutiny proceeding. In paragraph 26
of the cross-examination R.W. 2 has stated that he does
not recognize Sri Birendra Kumar Singh, Advocate,
Khagaria. In paragraph 27 of the cross-examination R.W. 2
has stated that Scrutiny of the nomination paper of the
Returned Candidate was over at about 11.45 A.M., but
even thereafter he remained present in the Hall where
scrutiny of the nomination paper of other candidates
continued. In paragraph 28, 29 of the cross-examination
R. W. 2 has stated that he came out of the Court Hall where
the scrutiny proceeding was going on at about 9.00 P.M.
and straightway came to his residence without giving
information about the result of the scrutiny proceeding to
anyone. In paragraph 30 of the cross-examination R. W. 2
has stated that he did not visit the office of the Returning
Officer the following day on which scrutiny was con-
ducted. In paragraph 31 of the cross-examination R.W. 2
has stated that he is not aware about the proceedings
conducted in the office of the Returning Officer on the
following day of the date of scrutiny. In paragraph 32 of
the cross-examination R.W. 2 has stated that the following
day, he could learn from others about the rejection of the
nomination paper of the election petitioner. In paragraph
33 of the cross-examination R. W. 2 has stated that it is
incorrect to suggest that he had not gone to the office of
the Returning Officer on the date of scrutiny and that he
has deposed falsely in these proceedings. In paragraph
34 of the cross-examination R.W. 2 has stated that it is
also incorrect to suggest that he has come here to depose
falsely at the instance of the Retuned Candidate. In
response to the question posed by this Court as to when
witness could learn about the rejection of the nomination
paper of the election petitioner the witness stated in
paragraph 35 of his cross-examination that having come
out of the hall where the scrutiny proceeding was being
conducted by the Returning Officer he learnt that the
nomination paper of the election petitioner has been
rejected.
14. Besides the two proposers of respondent no.4
who were examined as R.W. 1 and 2 the Returning Officer
and Assistant Returning Officer who conducted the
impugned election were also examined as R.W. 3 and 4.
R.W. 3 in his examination in chief has stated that he was
Returning Officer for the impugned election as at the
relevant time when the impugned election was announced
he was posted as the District Magistrate, Khagaria and in
the capacity of District Magistrate, Khagaria he was
appointed Returning Officer for the impugned election. In
paragraph 2 of the examination in chief R. W. 3 has stated
that election petitioner filed his nomination paper in four
sets before him on 6-4-2009 and at the time of presentation
of his nomination paper the preliminary examination in
terms of Sub-Section (4) of Section 33 of the Act was done
by the Assistant Returning Officer and the Assistants
posted to assist the Returning Officer for receiving the
nomination paper for the impugned election. In paragraph
3 of the examination in chief R.W. 3 has stated that after
going through the nomination paper filed by the election
petitioner it transpired that the petitioner attached Form
26 and Annexure-I affidavit in the format prescribed by
the Commission by its order no.3/EC/2003/JS-II dated
27-3-2003 duly sworn in before the competent authority.
Form 26 filed by the petitioner was duly filled in but was
not supported by affidavit affirmed before the Notary
Public or Oath Commissioner or before 1st Class Magistrate
as required under the instruction of the Commission. R.W.
3 further stated that petitioner also admitted the mistake
through petition dated 12-4-2009 that Form 26 filed by the
petitioner was not duly sworn before the competent
authority. In paragraph 4 of the examination in chief R. W.
3 has stated that under Chapter VI paragraph 9.6 failure to
support Form 26 by an affidavit has been mentioned as a
defect of substantial nature and entail rejection of the
nomination paper on the said ground. In the same
paragraph R. W. 3 further stated that the Commission
clearly instructs “non-furnishing of the affidavit by
candidate shall be considered to be a violation of the order
of the Hon’ble Supreme Court and the nomination paper
of the candidate concerned shall be liable to rejection by
Returning Officer at the time of scrutiny of nomination
paper for such non-furnishing of the affidavit". In
paragraph 5 of the examination in chief R. W. 3 has stated
that according to the instructions contained in the
Handbook the defect in the nomination paper of the
petitioner was of substantial nature and no attempt was
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made by representative (Prabhakar Prasad Singh) to
represent his case nor any request was made by him for
any adjournment of hearing or to postpone the process of
scrutiny of the nomination paper, though the process of
scrutiny continued up to 9 P.M. KW. 3 was left with no
option but to reject the nomination papers of the election
petitioner, which was done by passing reasoned order in
accordance with legal provisions. In paragraph 1 of the
cross-examination R.W. 3 has stated that in April, 2009, he
was District Magistrate, Khagaria and in such capacity he
was appointed Returning Officer for conducting election
to 25, Khagaria Parliamentary Constituency. In paragraph
2 of the cross-examination R W. 3 has stated that he was
Returning Officer for only 25, Khagaria Parliamentary
Constituency. In paragraph 3 of the cross-examination
R.W. 3 has stated that notification for conducting the
impugned election was issued on 02-04-2009. In paragraph
4 of the cross-examination R.W. 3 has stated that any
candidate who desired to contest the impugned election
had opportunity to file nomination paper between
02-04-2009—09-04-2009. In paragraph 5 of the cross-
examination R. W. 3 has stated that the scrutiny of the
nomination paper filed for contesting the impugned election
was fixed for 11-04-2009, which was also conducted on
that date. In paragraph of the cross-examination R.W. 3
has stated that 20 candidates filed nomination paper for
contesting the impugned election. In paragraphs 7, 38, 42
of the cross-examination R.W. 3 has stated that election
petitioner filed his nomination paper on 06-04-2009 in four
sets which has .been shown to him and is marked as Exts.
8, 8/1, 8/2, 8/3. In paragraph 8 of the cross-examination
R.W. 3 has stated that after scrutiny of the nomination
paper, 19 out of 20 candidates were allowed to contest the
impugned election, but one of the 19 candidates withdrew
his nomination paper on the date of withdrawal i.e.
13.04.2009. In paragraph 9 of the cross-examination R. W.
3 has stated that nomination paper of the election petitioner
was only rejected. In paragraph 10 of the cross-examination
R. W. 3 has stated that as Probationer, he witnessed
Panchayat election and as Sub-Divisional Officer,
conducted Municipal election and when he was posted as
District Magistrate, Khagaria he conducted the impugned
election as Returning Officer. In paragraph 11 of the cross-
examination R.W. 3 has stated that he went through the
guidelines issued by the Commission for conducting 2009
Parliamentary Election. In paragraph 12 of the cross-
examination R. W. 3 has stated that seven Assistant
Returning Officers were appointed by the Commission to
assist him in conducting the impugned election. In the
same paragraph the witness has clarified that six out of
the seven Assistant Returning Officers were appointed to
assist him in the six Assembly Constituency and the
seventh Assistant Returning Officer was appointed to
assist him in receiving the nomination paper. In paragraph
13 of the cross-examination R.W. 3 has stated that Sri
Shyamal Kishore Pathak, Director, District Rural
Development Agency, Khagaria was appointed as
Assistant Returning Officer for assisting him in connection
with receipt of the nomination paper. In paragraph 14 of
the cross-examination R.W, 3 has stated that Sri Pathak
did assist him in receiving the nomination paper during
the period between 02-04-2009—09-04-2009. In paragraph
15 of the cross-examination R.W. 3 has stated that on the
date of scrutiny of the nomination paper i.e. 11-04-2009,
Only Sri Shyamal Kishore Pathak, Assistant Returning
Officer assisted him in scrutiny of the nomination papers.
In paragraphs 16, 21 of the cross-examination R.W. 3 has
stated that the candidate filing nomination paper, presented
his nomination paper to the Assistant Returning Officer,
who went through the nomination paper and if necessary
document(s) was found not annexed with the nomination
paper then a check slip indicating the missing Document
was issued to the candidate. In paragraph 17 of the cross-
examination R.W. 3 has stated that after issue of the check
slip, in case the candidate was present for submitting his
nomination paper, he was administered oath by him but if
the candidate was in custody, the candidate had to take
oath before the Jail Superintendent, who had to
communicate that the candidate in custody had taken oath
before him before last date and time fixed for filing
nomination paper. In paragraph 18 of the cross-examination
R. W. 3 has stated that during the impugned election, one
candidate, namely, Sri Sanjay Yadav was in custody, who
took oath before the Jail Superintendent, which fact was
communicated to him by the Jail Superintendent before
last date and time fixed for filing nomination paper. In
paragraphs 19, 20 of the cross-examination R. W. 3 has
stated that he administered oath after ensuring the
identification and verification of the signature of the
Candidate. In paragraphs 22 to 24 of the cross-examination
R. W. 3 has stated that the check list concerning
nomination, which is shown to him, is the same check list
which he and his subordinates prepared for office
purposes after examining the nomination paper of the
election petitioner, which contains his signature as also
the signature of the Deputy Election Officer and Police
Officer designated to remain present at the time of
nomination and Senior Incharge Officer i.e. Assistant
Returning Officer, which is marked as Ext. 5. ln paragraphs
25 and 26 of the cross-examination R. W. 3 has stated that
the check list for handing over to the candidate who filed
his nomination paper is prepared in two copies and the
check list which is shown to him is check list which was
prepared for handing over to the election petitioner and is
marked as Ext. 6. In paragraph 27 of the cross-examination
R.W. 3 having seen Column No.7 of Ext.5, stated that answer
to the question posed in the said column has been
answered in affirmative. In paragraph 28 of the cross-
examination R. W. 3 having seen column no. 1 of Ext. 6
has· stated that answer to the question posed in the said
column with regard to affidavit in Form 26 is also answered
in affirmative. In paragraph 29 of the cross-examination
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R.W. 3 having seen Part 4 of the nomination paper has
stated that the same is acknowledgement of the fact that
election petitioner filed his nomination paper on 6.4.2009
at 1.25 P.M. which was numbered as 1. Part 4 of the
nomination form was marked as Ext.7. In paragraph 30 of
the cross-examination R.W. 3 has stated that he does not
remember whether specific notice was given to the
Candidate or his representative who presented the
nomination paper to appear for scrutiny on the date fixed.
In paragraph 31 of the cross-examination R.W. 3 has stated
that he allowed the Candidate and his three representatives
to remain present during the scrutiny of the nomination
paper. In paragraph 32 of the cross-examination R. W. 3
has stated that he does not remember whether passes
were issued for the Candidate and other three
representatives to be present at the time of scrutiny. In
paragraph 33 of the cross-examination R. W. 3 having seen
the instruction of the Commission in Chapter VI paragraph
3.1 has stated that during the scrutiny, Candidate, his
election agent, one of his proposers and a person duly
authorized by the Candidate were allowed to be present at
the time of scrutiny. In paragraph 34 of the cross-
examination R.W. 3 has stated that out of the four persons
referred to in paragraph 33 above who could be present at
the time of scrutiny, there could be only one proposer and
no other proposer could come to the Scrutiny Hall without
the authorization by the Candidate. In paragraph 35 of the
cross-examination R. W. 3 has stated that the authorization
for other person to be present at the time of scrutiny must
be in writing by the Candidate. In paragraph 36 of the
cross-examination R.W. 3 has stated that he does not
remember whether any prescribed format was there for the
Candidate to authorize the entry of the other person during
the scrutiny. In paragraph 37 of the cross-examination
R.W. 3 has stated that he does not remember whether
Respondent no.4 had authorized any other person to be
present at the time of scrutiny of his nomination paper. In
paragraph 39 of the cross-examination R.W. 3 has stated
that so far he remember, election petitioner had filed his
nomination paper along with Form 26. In paragraphs 40,
41, 47 of the cross-examination R.W. 3 having seen Form
26 filed by the election petitioner has stated that Form 26
was filled up and signed by the election petitioner, which
is already marked as Ext. A at the instance of respondent
no. 4. In paragraph 43 of the cross-examination R.W. 3
has stated that the signature on the Oath Form as also
Form 26 appended with the nomination paper of the
election petitioner is of the same person i.e. of the election
petitioner which was presented by the election petitioner
in person before him on 6-4-2009. In paragraph 44 of the
cross-examination R. W. 3 having seen the Oath Form,
P. W. 3 stated that he administered oath to the election
petitioner on 6-4-2009 at 2.20 P.M. and having administered
oath, in token thereof obtained the signature of the election
petitioner as also put his signature over the same. In
paragraph 45 of the cross-examination R. W. 3 has stated
that while serving as District Magistrate, he also discharged
the duties of an Executive Magistrate and in such capacity,
he has the authority to administer oath, but not in the
capacity of Returning Officer. In paragraph 46 of the cross-
examination R. W. 3 has stated that at the time of preliminary
examination of the nomination paper, he only saw whether
the nomination paper is accompanied by the documents
which are required to be annexed with the nomination paper.
In paragraph 48 of the cross-examination R.W. 3 has stated
that at the time of preliminary examination of the nomination
paper, he had to see whether the nomination paper is
accompanied by all the annexures and having seen the
nomination paper filed by the election petitioner, he was
satisfied that the nomination paper was accompanied by
all the documents including Form 26. In paragraph 49 of
the cross-examination R.W. 3 has stated that Form 26 is
required to be sworn in before the Notary Public, Oath
Commissioner or First Class Magistrate. In paragraph 50
of the cross-examination R. W. 3 has stated that at the time
of preliminary examination of the nomination paper filed
by the election petitioner, only Form 26 was there but
without the affidavit sworn in before the competent
authority. In paragraph 51 of the cross-examination R. W.
3 having seen paragraph 19.1 of Chapter (V) of the Hand
Book issued for the impugned election stated that in case
Form 26 is not annexed with the nomination paper then
the Returning Officer after preliminary examination of the
nomination paper is required to give written notice in
prescribed form to the Candidate that the nomination paper
is not accompanied with Form 26, but if the affidavit
supporting Form 26 is not available then such information
is not required to be given to the Candidate. In paragraph
52 of the cross-examination R.W. 3 has stated that notice
under Clause 19.1 of Chapter (V) of the Hand Book is
required to be given to the Candidate only when the
Candidate has not filed Form 26 along with the nomination
paper. In paragraph 53 of the cross-examination R.W. 3
has stated that he did not give any notice to the election
petitioner stating that Form 26 filed by him along with
nomination paper is defective as the same has not been
supported by an affidavit. In paragraph 54 of the cross-
examination R.W. 3 has stated that neither notice nor
intimation was given to the election petitioner with regard
to his failure to support Form 26 with an affidavit. In
paragraph 55 of the cross-examination R. W. 3 has stated
that Annexure-l affidavit was filed by the election petitioner
along with his nomination paper. In paragraph 56 of the
cross-examination R.W. 3 has stated that having received
the nomination paper and made preliminary examination
of the nomination paper check list is issued to the
Candidate and the nomination paper is kept separately
under lock and key whereafter there is no occasion to
discover any defect. In paragraph 57 of the cross-
examination R. W. 3 has stated that defect in the nomination
paper discovered at the time of scrutiny can be allowed to
be corrected provided the same is permissible under the
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[PART II—SEC. 3(iii)]
Act and the guidelines of the Commission. In paragraph
58 of the cross-examination R. W. 3 has stated that defects
in the nomination paper in regard to the affidavit including
affidavit supporting Form 26 can be permitted to be filed
until 3.00 P.M. of the last date for filing the nomination
paper and not thereafter. In paragraph 59 of the cross-
examination R.W. 3 has stated that swearing of affidavit
supporting Form 26 cannot be allowed on the date of
scrutiny of the nomination paper. In paragraph 60 of the
cross-examination R.W. 3 has stated that during scrutiny
he could not notice any defect in the nomination paper of
other Candidates which could not be removed by the
Candidate on the date of scrutiny. In paragraph 61 of the
cross-examination R. W. 3 has stated that scrutiny of the
nomination paper received in connection with impugned
election began at 11.00 A.M. on 11.4.2009 in the Court Hall
of the Collector, Khagaria and continued until 9.00 P.M. of
that day. In paragraph 62 of the cross-examination R. W. 3
has stated that scrutiny of the nomination paper of the
election petitioner had begun at about 7.00 - 7.30 P.M. and
concluded at 9.00 P.M. In paragraph 63 of the cross-
examination R.W. 3 has stated that he does not remember
the exact time when the scrutiny of the nomination paper
of the Returned Candidate had begun and concluded. In
paragraph 64 of the cross- examination R. W. 3 has stated
that he does not remember the exact time of scrutiny of the
nomination paper of any other Candidate also but the
sequence in which scrutiny of the different nomination
papers received for the impugned election was done is
noted in the order sheet. In paragraph 65 of the cross-
examination R.W. 3 has stated that four candidates filed
single nomination paper. In paragraph 66 of the cross-
examination R.W. 3 has stated that scrutiny of the
nomination paper of the Candidate who filed the same in
four sets took 20-30 minutes and scrutiny of the nomination
paper of the Candidate who filed single nomination was
completed within 5-7 minutes. In other cases, it may take
even longer time as the Elector Roll number of the
proposers of the respective Candidate is to be verified. In
the case of Independent Candidate there are 10 proposers
and in the case of the Candidate of recognized party, there
is one proposer. In paragraph 67 of the cross-examination
R.W. 3 has stated that the exercise of scrutiny had begun
with the scrutiny of nomination paper of Returned
Candidate, which commenced at 11.00 A.M. and concluded
perhaps by 11.30 A.M. In paragraph 68 of the cross-
examination R.W. 3 has stated that during scrutiny, besides
him, designated Assistant Returning Officer and Deputy
Election Officer were also present. In paragraph 69 of the
cross-examination R.W. 3 has stated that the scrutiny of
the nomination paper of the election petitioner was
conducted at the last. In paragraph 70 of the cross-
examination R. W. 3 has stated that after scrutiny of the
nomination paper of a particular Candidate, that particular
Candidate and his representative could have remained in
the Hall or left the hall he has no idea as few of the
candidate/representative continued in the Hall until 9.00
P.M., but others left in the meantime. In paragraph 71 of
the cross-examination R. W. 3 has stated that during the
process of scrutiny no written objection was raised by
any Candidate or his representative. In paragraph 72 of
the cross-examination R. W. 3 has stated that during the
scrutiny representative of the election petitioner was
present. In paragraph 73 of the cross-examination R.W. 3
has stated that no written objection regarding the
nomination paper of the election petitioner was raised by
any Candidate or his representative. In paragraph 74 of
the cross-examination R. W. 3 has stated that on the date
of scrutiny before taking up scrutiny, he had no occasion
to make announcement about the affidavit in Annexure-l
or Form 26. In paragraph 75 of the cross-examination
R. W. 3 has stated that failure to support Form 26 by an
affidavit duly sworn in before a competent authority is a
defect of substantial nature. In paragraph 76 of the cross-
examination R.W. 3 has stated that reasoned order was
passed rejecting the nomination paper of the election
petitioner no sooner the nomination paper of the election
petitioner was rejected. In paragraph 77 of the cross-
examination R.W. 3 has stated that reason for rejecting the
nomination paper of the election petitioner is mentioned
in the order by which his nomination paper was rejected.
In paragraph 78 of the cross-examination R.W. 3 has stated
that the order which is shown to him is the same order
which he passed rejecting the nomination paper of the
election petitioner, which is marked as Ext. 9. In paragraph
79 of the cross-examination R.W. 3 has stated that perusal
of the order rejecting nomination paper of the election
petitioner would indicate that the nomination paper of the
election petitioner was rejected for his failure to support
his Form 26 by an affidavit sworn before the competent
authority. Aforesaid rejection order was passed relying
on Clause 9.6 of Chapter VI of the Hand Book issued for
the 2009 Parliamentary Election, which is also mentioned
in the day to day order sheet maintained by R.W. 3. In
paragraphs 80, 81 of the cross-examination R. W. 3 has
stated that perusal of Clause 9.6 of Chapter VI of the
handbook indicate what may constitute defect of
substantial nature in the nomination paper including the
grounds for rejection of the nomination paper. In paragraph
82 of the cross-examination R. W. 3 has stated that Form
26 is referred to in sub-clause (viii) of Clause II of Chapter
VI of the Hand Book. In paragraph 83 of the cross-
examination R.W. 3 having seen N.B. below sub-clause
(viii) of Clause 10.1 of Chapter VI stated that if the
prescribed affidavits have been filed, but are found or
considered to be defective or containing false information,
the nomination should not be rejected on this ground.
The witness volunteers" that the present case is in the
grey area of sub-clause (viii) and the note below, which
has been taken note in the reasoned order. In paragraph
84 of the cross-examination R. W. 3 has stated that the
grey area referred to above is taken note in the order
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rejecting nomination paper of the election petitioner as it
is stated in the order that election petitioner did not file
affidavit sworn before the competent authority supporting
contents of Form 26. In paragraph 85 of the cross-
examination R. W. 3 has stated that the order rejecting the
nomination paper of the election petitioner does not refer
to the specific sub-clause of Clause 10.1 whereunder the
nomination paper of the election petitioner was rejected.
In paragraph 86 of the cross-examination R.W. 3 has stated
that the order by which he rejected the nomination paper
of the election petitioner refers to sub-clauses (1),
(2) and (3), of Clause 5 of the order dated 27-3-2003 of the
Commission. In paragraph 87 of the cross-examination
R.W. 3 has stated that he is unable to pin point the sub-
clause of Clause 5 of order dated 27-3-2003 of the
Commission whereunder Form 26 is referred to. In
paragraph 88 of the cross-examination R.W. 3 has stated
that sub-clause (1) of Clause 5 of letter dated 27-3-2003 of
the Commission refers to affidavit supporting format,
Annexure-I. In paragraph 89 of the cross-examination
R. W. 3 has stated that affidavit supporting Annexure-I
of' the nomination paper of the election petitioner was
without any defect. In paragraph 90 of the cross-
examination R. W. 3 has stated that sub-clauses (1) and (2)
of Clause 5 of letter dated 27-3-2003 of the Commission
not only refers to Annexure-1 of the nomination paper but
also the contents of Form 26. In paragraph 91 of the cross-
examination R. W. 3 has stated that the word ‘the said
affidavit’ in sub-clause (2) of Clause 5 of letter dated
27-3-2003 of the Commission refers to affidavit supporting
Annexure-1. In paragraph 92 of the cross-examination
R.W. 3 has stated that it is true that the affidavit referred to
in sub-clause (2) of Clause 5 of the letter dated 27-3-2003
of the Commission does not refer to Form 26 but the other
informations which are required thereunder are the same
informations which is contained in sub-clauses (1) and (2)
of Clause 3 of letter dated 27-3-2003 which is part of Form
26. In paragraph 93 of the cross-examination R.W. 3 has
stated that there is no objection in regard to the information
given by the election petitioner in Form 26 appended with
his nomination paper. In paragraph 94 of the cross-
examination R.W. 3 has stated that it is incorrect to suggest
that the scrutiny proceeding in regard to the scrutiny of
the nomination paper of the election petitioner was
postponed to the next day as having found the defect in
Form 26 appended with nomination paper of the election
petitioner, the same was shown to the representative of
the election petitioner who having seen the defect,
admitted that the affidavit supporting Form 26 has not
been sworn before the competent authority and in such
view of the matter, nomination paper of the election
petitioner was rejected on the date of scrutiny itself and
list of validly nominated Candidates was finalized on the
date of scrutiny itself. The application explaining the defect
was filed on 12-4-2009 by which time scrutiny process
was already over and the nomination paper of the election
petitioner stood rejected. In paragraph 95 of the cross-
examination R. W. 3 has stated that after rejection of the
nomination paper of the election petitioner on 11-4-2009,
election petitioner along with his Lawyers and
representatives had come to his chambers in the forenoon
of 12-4-2009 and tried to persuade him to reconsider the
order rejecting the nomination paper of the election
petitioner. In the evening of 12-4-2009 at 5.20 P.M. election
petitioner filed representation before the Deputy Election
Officer, which was put up before R. W. 3 at 7.30 P.M. The
time of filing of the representation on 12-4-2009 including
the time when the same was put up before R. W. 3 has
been indicated in the left margin of the petition dated
12-4-2009 by R.W. 3 in his own pen. In paragraph 96 of the
cross-examination R. W. 3 has stated that he has not
mentioned the details of deliberations held on 12-4-2009
in his order sheet as the scrutiny process was already
over on 11-4-2009. In paragraph 97 of the cross-examination
R. W. 3 has stated that it is incorrect to suggest that
nomination paper of the election petitioner has been
wrongly rejected by his violating the instructions of the
Commission. In paragraph 98 of the cross-examination
R. W. 3 has stated that it is incorrect to suggest that order
rejecting nomination paper of the election petitioner was
passed on 12-4-2009 or on some other future date but the
same has been antedated. In paragraph 99 of the cross-
examination R.W. 3 has stated that it is absolutely wrong
and incorrect to suggest that during the scrutiny of the
nomination paper of the election petitioner, request was
made by Sri Prabhakar Prasad Singh, proposer of the
election petitioner and M/s. Prabha Shankar Singh and
Birendra Kumar Singh, Advocate to permit the election
petitioner to remove the defect as he was available in the
Collectorate campus and to postpone the scrutiny
proceedings of the nomination paper of the election
petitioner for tomorrow. In paragraph 100 of the cross-
examination R.W. 3 has stated that it is absolutely incorrect
to suggest that on 11.4-2009, he was requested by the
election petitioner or his representative to adjourn the
scrutiny proceedings for tomorrow, in response whereto,
he gave them time for hearing on 12-4-2009 at 11.00 A.M.
In paragraph 101 of the cross-examination R. W. 3 has
stated that the suggestion that pursuant to adjournment
granted for considering the scrutiny of the nomination
paper of the election petitioner, election petitioner and his
Advocates came to his chamber on 12-4-2009 in the
forenoon is absolutely incorrect as earlier itself he has
stated that they had come on their own in delegation.
15. Sri Shayamal Kishore Pathak, R.W. 4 has stated
in his examination in chief that while he was posted as
Director, Accounts Administration and Self Employment,
DRDA, at Khagaria the Commission announced
Parliamentary Election in 2009. R.W. 4 was notified to act
as Assistant Returning Officer to aid and assist the
Returning Officer as and when required. In paragraph 3 of
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the examination in chief R.W. 4 has stated that election
petitioner has filed his nomination paper in four sets before
the Returning Officer on 6-4-2009. At the time of
presentation of the nomination paper the preliminary
verification was done. In paragraph 4 of the examination
in chief R.W. 4 has stated that in course of scrutiny made
by the authority concerned, it was found that petitioner
deposited Annexure-1 in prescribed format duly supported
by an affidavit as per instruction of the Commission bearing
no.3/ER/2003/JS-II dated 27-3-2003 but admittedly attached
Form 26 though found filled up but not supported by an
affidavit. In paragraph 5 of the examination in chief R.W. 4
has stated that under Chapter VI, paragraph 9.6 of the
Handbook, failure to file affidavit in Form 26 has been
mentioned as the defect of substantial nature requiring
rejection of nomination paper in view of Commission order
no. 3/ER/2003/JS-II dated 27-3-2003 which reads as
follows :—“Non-furnishing of the affidavit by any
candidate shall be considered to be violation of the order
of the Hon'ble Supreme court and the nomination of the
candidate concerned shall be liable to rejection by the
Returning Officer at the time of scrutiny of nominations
for such non-furnishing of the affidavit." In paragraph I of
the cross-examination R.W. 4 has stated that he was
appointed as Assistant Returning Officer by the
Commission. He further stated in the same paragraph that
Returning Officer had appointed him Specified Assistant
Retuning Officer under Form 8 for receiving nomination
paper from the Candidates. In paragraph 2 of the cross-
examination R. W. 4 has stated that he does not remember
the exact number of Assistant Returning Officers, who
were appointed besides him. In paragraph 3 of the cross-
examination R. W. 4 has stated that the nomination paper
for the impugned election could be filed during the period
between 02-04-2009 - 09-04-2009 until 3.00 P.M. In paragraph
4 of the cross-examination R.W. 4 has stated that 20
Candidates had filed their nomination paper for contesting
the impugned election. In paragraph 5 of the cross-
examination R.W. 4 has stated that different Candidates
filed nomination paper in different sets. In paragraph 6 of
the cross-examination R. W. 4 has stated that election
petitioner had also filed nomination paper on 06-04-2009
in four sets. In paragraph 7 of the cross-examination R.W.
4 has stated that the nomination paper was presented by
the election petitioner himself along with his proposers.
In paragraph 8 of the cross-examination R.W. 4 has stated
that after the election petitioner presented his nomination
paper, he was also administered oath by the Returning
Officer, R. W. 3, the then Collector, Khagaria. In paragraph
9 of the cross-examination R.W. 4 has stated that the
nomination paper of the election petitioner was received
by the Returning Officer himself in his presence, which
was checked by R.W. 4, Sub-Election Officer and the
Assistants present considering only technical aspect. In
paragraph 10 of the cross-examination R. W. 4 has stated
that after having technically checked the nomination paper
of the election petitioner, a check list was prepared. In
paragraph II of the cross-examination R.W. 4 has stated
that check list shown to him was prepared by him, other
officers present after receipt of the nomination paper from
the petitioner but for their convenience. In paragraph 12
of the cross-examination R.W. 4 has stated that the check
list shown to him, though contains the signature of the
officers, but it was for their use and not part of the official
election record. In paragraph 13 of the cross-examination
R. W-, 4 has stated that information included in the check
list was included therein as the information included therein
was then found correct by them. In paragraph 14 of the
cross-examination R.W. 4 has stated that having seen the
question posed in Column no. 7 of the aforesaid check
list, Ext.5, the witness stated that the answer to the said
question has been given in affirmative. In paragraph 15 of
the cross-examination R. W. 4 having seen column no. 7 in
Ext.5 and its answer stated that it was not the stage to
examine the defects in Form 26. In paragraph 16 of the
cross-examination R. W. 4 has stated that having seen
paragraph 19.1 of Chapter V of the Hand Book, the witness
stated that notice as contemplated in the said provision
was not issued to the election petitioner because Form 26
was filed along with the nomination paper. In paragraph
17 of the cross-examination R. W. 4 has stated that at the
time of receipt of the nomination paper, no notice regarding
lack of affidavit supporting Form 26 was given to the
election petitioner. In paragraph 18 of the cross-
examination R.W.4 has stated that on the date of receipt of
the nomination paper, election petitioner was not given
any opportunity to submit the affidavit supporting Form
26 appended with .the nomination paper. In paragraph 19
of the cross-examination R. W. 4. has stated that last date
for filing the nomination paper was 09-04-2009 until 3.00
P.M. In paragraph 20 of the cross-examination R.W. 4 has
stated that Form 8 referred to in paragraph 1 of his cross-
examination is incorrectly typed for Form 1. In paragraphs
21, 22 of the cross-examination R.W. 4 has stated that
Check list, Ext.6 was drawn by him on 6-4-2009 which bears
the signature of Returning Officer. In paragraph 23 of the
cross-examination R. W. 4 has stated that in response to
the question posed in Column no. 2 of Ext.6 concerning
the affidavit in Form 26, the witness stated that the answer
to the said question is rerrdered in affirmative. In paragraph
24 of the cross-examination R.W. 4 has stated that he is
not aware about the instructions sent by the Commission
to the Returning Officer for conducting the election. In
paragraph 26 of the cross-examination R.W. 4 has stated
that there is a provision in the instructions issued by the
Commission for conducting Parliamentary election to issue
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copy of the check list to the Candidate or the proposer
who has presented the nomination paper. In paragraph 27
of the cross-examination R.W. 4 has stated that there is
also provision in the instructions to retain one copy of the
check list issued to the Candidate in the office of the
Returning Officer. In paragraph 28 of the cross-examination
R.W. 4 has stated that the check list is given to the
Candidate with a view to enable the Candidate to remove
the defect, if any, in the nomination paper or the documents
appended therewith. In paragraph 29 of the cross-
examination R. W. 4 has stated that he has stated in his
examination-in-chief that Form 26 filed by the election
petitioner was suffering with a substantial defect as the
same was not supported by an affidavit. In paragraph 30
of the cross-examination R. W. 4 has stated that any defect
in Form 26 could have been removed by the Candidate by
3.00 P.M. of the last date fixed for filing of the nomination
paper i.e. 9-04-2009. In paragraph 31 of the cross-
examination R.W. 4 has stated that no notice or intimation
for removal of defect in Form 26 filed by the election
petitioner was given to him or his proposers until 3.00
P.M. of 9-04-2009. The witness further volunteered in the
same paragraph that as Form 26 had already been filed
along with the nomination paper, no such notice was given.
In paragraph 32 of the cross-examination R. W. 4 has stated
that Ext. A/l shown to him is the same Form 26 which was
filed by the election petitioner along with his nomination
paper. In . paragraph 33 of the cross-examination R. W. 4
has stated that at the time of receipt of the nomination
paper, he had examined the documents appended
therewith, including Form 26 technically, meaning thereby
only with reference to the Electoral Roll number of the
Candidate and the proposer. In paragraph 34 of the cross-
examination R.W. 4 has stated that contents of the affidavit
either in Annexure-l or Form 26 are required to be enquired
into at the time of scrutiny of the nomination paper and
not at the time of presentation. In the same paragraph he
further stated that even if the affidavit, Annexure-1 and
Form 26 is blank, the same shall be looked into at the time
of scrutiny. In paragraph 35 of the cross-examination R.W.
4 has stated that the suggestion that he has deposed
contrary to the instructions of the Commission in regard
to verification of the documents with technical stand point,
is not correct as at the time of receipt of the nomination
paper, the authorities are only required to verify the
Electoral Roll number of the Candidate and the proposers.
In paragraph 36 of the cross-examination R.W. 4 has stated
that there is clear cut instruction of the Commission
providing for acceptance, rejection of the nomination
paper. In paragraph 37 of the cross-examination R. W. 4
has stated that he is not in a position to indicate on what
consideration the Returning Officer may accept or reject
the nomination paper. In paragraph 38 of the cross-
examination R. W. 4 has stated that in clause 10.1 of Chapter
VI of the Guidelines issued by the Commission, grounds
for rejection of nomination paper have been indicated. In
paragraph 39 of the cross-examination R.W. 4 has stated
that he is not aware on which ground the nomination paper
of the election petitioner was rejected. In paragraph 40 of
the cross-examination R.W. 4 has stated that in sub-clause
(viii) of Clause 10.1 of Chapter VI, there is provision for
rejecting the nomination paper of the-Candidate for failure
to file affidavit. In the same paragraph he further stated
that besides the aforesaid provision, there is yet another
letter of the Commission dated 4.7.2008 which provides
for rejection of nomination paper for failure of the
Candidate to file affidavit. In paragraph 41 of the cross-
examination R. W. 4 has stated that in sub-clause (viii) of
Clause 10.1, aforesaid affidavits have been mentioned
which shall include both the affidavit in Annexure-1 as
also Form 26. In paragraph 42 of the cross-examination R.
W. 4 has stated that failure to support Form 26 by an
affidavit is not within the purview of N.B. beneath sub-
clause (viii) of Clause 10.1 of the instructions. In paragraph
43 of the cross-examination R. W. 4 has stated that it is
incorrect to suggest that the nomination paper of the
election petitioner has been rejected in contravention of
the instructions of the Commission because Clause 9.6 of
Chapter VI specifically provides for rejection of the
nomination paper for failure to support Form 26 by an
affidavit. In paragraph 44 of the cross-examination R.W. 4
has stated that it is incorrect to suggest that under Clause
9.6 of Chapter VI, there is no provision for rejection of
nomination paper. In paragraph 45 of the cross-examination
R. W. 4 has stated that it is incorrect to suggest that he
has come to depose at the instance of Respondent no.4,
as he has come to depose in response to the summons
issued by the High Court.
16. Learned counsel for the election petitioner
submitted that the order of rejection of nomination paper
of the election petitioner is beyond jurisdiction and
contrary to the statutory provisions contained in Section
36 of the Act. According to counsel for the petitioner
Section 36 of the Act does not contemplate rejection of
the nomination paper on any ground other than the
grounds prescribed in Section 36 i.e. disqualification of
the candidate or defect in the form of nomination filed by
the candidate. Section 33 of the Act read with Rule 4 of the
Rules prescribe the form of nomination paper which is
numbered as Form 2A to 2E. There being no defect in the
nomination paper submitted by the election petitioner in
Form 2A and the parts appended therewith his nomination
paper could not have been rejected. In this connection, it
is further submitted that Form 26 is prescribed separately
under Rule 4A of the Rules to be furnished additionally
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along with the nomination paper but is not part of the
nomination paper. According to learned counsel for the
petitioner Form 26 being not the part of the nomination
paper, any defect in Form 26 does not come within the
grounds enumerated under Sub-section (2) of Section 36
of the Act for rejection of nomination paper. Reliance in
this connection is placed on the judgment of this Court in
the case of Mahesh Prasad Singh Vs. Shatrughan Sinha,
2012(4) PLJR 1010, paragraph 38. In this connection,
learned counsel for the petitioner also submitted that
Section 36 of the Act also does not refer to any of the
requirement mentioned under Section 33A of the Act as a
ground for rejection of the nomination paper. Learned
counsel further submitted that even otherwise the
information required to be furnished under Section 33A
(1) of the Act has admittedly been furnished by the election
petitioner in the prescribed format, Form 26 duly signed
by the election petitioner at the time of filing of the
nomination paper which was accepted without any
objection about correctness of such information.
According to learned counsel there is substantial
compliance of Section 33A of the Act by the election
petitioner. Defect of not affirming affidavit as per Sub-
section (2) of Section 33A of the Act cannot be the basis
for rejection of nomination paper as the same has not been
envisaged under Section 36 of the Act. Learned counsel
for the petitioner submitted that order of rejection of
nomination paper on the ground that there was defect in
Form 26 filed by the election petitioner is illegal, improper
and beyond jurisdiction.
17. Learned counsel for the petitioner further
submitted that order of rejection of nomination paper is
also illegal and improper because neither any defect about
Form 26 was pointed out by the Returning Officer at the
time of presentation of nomination paper nor any notice
was given to him for rectification of defect in Form 26. In
this connection, it is submitted that having received the
nomination paper and the additional information in Form
26 vide check list Ext. 5 prepared under the signature of
three officials including the Returning Officer R.W. 3 and
no further requirement found or noted therein with regard
to any correction vide Item-7 of Ext. 5 the nomination paper
could not have been rejected without disclosing such
requirement to the candidate and without giving
reasonable opportunity to remove the defect, more so when
copy of check list indicating no further requirement or
defect as regards Form 26 vide Item No.1 of the check list,
Ext. 6 was given to the election petitioner by the Returning
Officer after receiving the nomination paper on 6.4.2009.
In this connection, it is also submitted that the instructions
given by the Commission in the Handbook clearly provides
in Chapter V that notice is to be given to the candidate for
any requirement or defect at the time of presentation of
the nomination paper. Paragraph 19.1 of Chapter V
contemplates that in case a candidate fails to file the
affidavit the Returning Officer should bring this
requirement to the notice of the candidate, for which a
standard format has been prescribed In Form 11 of the
Handbook. The Handbook further instructs the Returning
Officer in paragraph 19.1 to serve on the candidate or his
proposer immediately on presentation of the nomination
paper and the candidate should be asked to file duly sworn
affidavit latest by 3 P.M. on the last date of filing of
nomination paper. In this connection, reliance is placed
over the contents of the protest petition dated 12.4.2009,
Annexure-4 to the election petition and marked as Ext. 3 as
also to the assertion of the election petitioner, P.W. 1 in his
examination in chief. The relevant contents of both the
protest petition dated 12.4.2009 as also the examination in
chief of P.W. 1 is quoted below :—
“.............the concerned election authority has not
pointed out about any mistake regarding the affidavit
in Form 26 till the last date of nomination i.e. on 9-4-
2009 and in this regard no any direction has been
made by the concerned authority to me or my
proposer.” “Neither before scrutiny i.e. before passing
of order dated 11-4-2009 nor during scrutiny on
11-4-2009, I was ever informed by the authority about
such defect in Form 26 nor I was ever given any
opportunity to correct the said defect.” Further :—
“That at the time of scrutiny my proposer Prabhakar
Prasad Singh in absence of me requested the
concerned authority to given an opportunity for
correction of the mistake but it is not admitted by
the concerned authority.”
Aforesaid assertion of the election petitioner is also
admitted by the Returning Officer, R.W. 3 in paragraphs 24
to 29 of his cross examination where he has admitted that in
check list Ext. 5 and 6 no defect with regard to Form 26 was
pointed out to the election petitioner after presentation of
the nomination form and issue of check list to the election
petitioner as answer to the question posed in column-7 of
Ext. 5 and column 1 of Ext. 6 has been rendered in affirmative,
meaning thereby that there is no defect in Form 26. Further
reference is also made to the admission of the Returning
Officer in paragraphs 52 to 54 that notice under Clause 19.1
of Chapter V of the Handbook was not given to the election
petitioner after presentation of the nomination paper by
him stating that Form 26 filed by the election petitioner
along with nomination paper is defective as the contents of
Form 26 has not been supported by an affidavit.
18. Learned counsel for the election petitioner
further submitted that it is also admitted that even at the
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time of scrutiny neither any candidate nor any person on
behalf of the candidate raised any objection with regard
to any defect in Form 26 nor any objection was raised with
respect to information/statement made by the election
petitioner in the said Form 26. It was the Returning Officer
who himself raised the issue of defect in Form 26 and
rejected the nomination paper without giving the election
petitioner opportunity to rebut the objection. According
to learned counsel for the petitioner Returning Officer
having acted in contravention of the instructions of the
Commission by not giving any notice and opportunity to
rectify the defect in Form 26 Returning Officer has
improperly rejected the nomination paper of the election
petitioner. In this connection, learned counsel further relied
on the well settled principle of law that nomination paper
should not be rejected for technical defects without the
same being pointed out and reasonable opportunity for
correction/removal given to the candidate for removing
the defect by even postponing the scrutiny to the next
day. Reliance in this connection is placed on the judgment
of the Supreme Court in the case of Nandiesha Reddy Vs.
Kavitha Mahesh, (2011) 7 SCC. 721, paragraph 24 and in
the case of Ramesh Rout Vs. Rabindra Nath Rout, (2012) 1
SCC 762, paragraph 76 to 78 and 81.
19. Learned counsel for the petitioner further
submitted that the ground for rejecting the nomination
paper of the election petitioner as indicated in the order
dated 11-4-2009 passed in English, Annexure-3/Ext. 9 and
communicated to the election petitioner is also erroneous
as the ground taken therein is neither supported by law
nor facts. Rejection order has been passed for failure to
support the statement made in Form 26 by an affidavit as
according to Returning Officer affidavit supporting the
contents of Form 26 is necessary because it concerns
disqualification of the candidate as mentioned in Article
102(1) of the Constitution and Section 8 of the Act.
According to learned counsel for the petitioner, perusal of
Form 26, Ext. A would reveal that the information sought
therein does not concern any disqualification as envisaged
under Section 8 of the Act or Article 102(1) of the
Constitution. Information sought under Form 26 concerns
information other than referred to in Section 8 of the Act.
According to learned counsel for the election petitioner
the order dated 27-3-2003 referred to in the rejection order
dated 11-4-2009, Annexure-3/Ext.9 also does not refer to
any affidavit in Form 26. Order dated 27-3-2003 is only
limited to the information in Annexure-1 as per paragraph
16 of the order dated 27-3-2003 of the Commission. In the
instant case, election petitioner having furnished the
required information as per paragraph 16 of order dated
27-3-2003 in Annexure-I duly supported by an affidavit
and the other information in Part 3 of the nomination paper
that he is not. disqualified under Section 8 of the Act. The
order rejecting his nomination paper for failure to support
the information in Form 26 by an affidavit is wholly
improper.
20. Learned counsel for the election petitioner
challenged the so called order dated 11-4-2009 passed by
the Returning Officer in Hindi and preserved in the order
sheet without serving copy thereof on the election
petitioner and marked as Ext. 9 on the ground that the
same is post script and has been passed with the object to
supplant the order of rejection passed in English dated
11-4-2009, Annexure-3, certified copy whereof was given
to the election petitioner and also marked as Ext. 9 on the
ground that the same is factually illegally, erroneous and
has been passed only for the purpose to refute the
assertion of the petitioner that during the scrutiny of his
nomination paper on 11-4-2009 his proposer Prabhakar
Prasad Singh had requested the Returning Officer to grant
opportunity for removing the defect in Form 26, which
request was not accepted and for technical defect
nomination paper of the election petitioner was rejected.
In this connection, it is further submitted that the Returning
Officer R. W. 3 on the one hand admits in paragraph 55 of
his cross-examination that the election petitioner along
with his lawyer and representative had come to his Chamber
in the forenoon of 12-4-2009 and tried to persuade him to
reconsider the order rejecting the nomination paper of the
election petitioner but the protest petition was submitted
in the evening at 5.20 P.M. before Deputy Election Officer.
In this connection, it is submitted that it is quite absurd
that the lawyers would appear in forenoon and the protest
petition would be filed in the evening. According to the
learned counsel for the petitioner evidently the receiving
of the protest petition was ante-timed and the explanatory
order sheet of rejection was then passed in Hindi.
According to him no reliance can be placed on the veracity
of the order sheet in Hindi, which was produced in this
Court along with records. According to learned counsel
for the petitioner the aforesaid order in Hindi regarding
time being not asked for during scrutiny stands
contradicted by the election petitioner, P.W. 1 in his
examination in chief as well as in the objection dated
12-4-2009, Ext. 9. Reference in this connection, is also made
to the evidence of Prabhakar Prasad Singh, P.W. 2 who
was present during scrutiny on behalf of election petitioner
and made the following assertion in his examination in
chief:- "I immediately requested the Returning Officer to
allow the removal of that defect which was possible as Sri
Satya Narayan Babu was in the campus of the Collectorate
itself. But, the same was not accepted." "I called Sri Prabha
Shankar Singh, one communist party leader and told about
it. He also-came there with two Advocates, namely,
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Sri Durgesh Prasad Singh and Sri Birendra Kumar Singh
and they made the submissions before the Returning
Officer. But the Returning Officer did not accept it."
Reference is also made to paragraphs 54 and 55 of the
cross-examination of P.W. 2 where he has categorically
stated that he made verbal request for granting time but
the same was refused by the Returning Officer. P.W. 3
Prabha Shankar Singh has also contradicted the Returning
Officer in his examination in chief where he states that on
receipt of information from P.W. 2 on mobile he reached
the scrutiny hall along with two Advocates in the evening
of 11-4-2009 and requested for time and permission to
remove the defects immediately but the same was not
accepted. Further reference is made to the evidence of
P.W. 4 Birendra Kumar Singh, Advocate who also stated
in his examination in chief and cross-examination that on
the request of P. W. 3 he along with Durgesh Prasad Singh,
Senior Advocate had appeared before the Returning
Officer in the evening on the date of scrutiny 11-4-2009
and had made submissions and argument that "there is no
defect in furnishing of the affidavit in Form 26 as it has
been duly affirmed stated, sworn, signed and presented
by the election petitioner before the District Magistrate-
cum-Returning Officer who was also a Class-I Magistrate
and had power to administer oath." "Even if he considers it
as defect then it was minor, clerical defect which must be
ignored and the nomination paper cannot be rejected on
that ground." Further the Returning Officer was requested
to take instruction from the Commission on this issue.
Returning Officer, however, refused to do so in case of defect
in the nomination paper of another candidate Sri Bharat
Kumar Yadav the Returning Officer talked to the Commission
and accepted his nomination paper. In view of the aforesaid
assertion of P.W. 4 learned counsel for the petitioner
submitted that the order sheet in Hindi, Ext. 9 mentioning
that no one prayed for any time or made submission on
behalf of the election petitioner at the time of scrutiny stands
completely falsified and contradicted. According to learned
counsel order sheet in Hindi has actually been prepared by
the Returning Officer as an afterthought to justify his
previous action of not giving notice to the election
petitioner about the defect in Form 26 as also granting time
to remove the defect in Form 26, which is also evident from
paragraph 59 of his cross-examination as in the said
paragraph Returning Officer admitted that swearing of
affidavit supporting Form 26 cannot be allowed on the date
of scrutiny of the nomination paper.
21. Learned counsel for the petitioner also submitted
that rejection of the nomination paper was also improper
for the reason that the statement in Form 26 was duly
filled in and signed by the election petitioner on the date
and time of presentation of the nomination paper i.e. on
6-4-2009 before the District Magistrate-cum-Returning
Officer who himself has the power of Ist Class Magistrate
to administer oath. The duly signed Form 26 was presented
by the election petitioner in person before the District
Magistrate cum Returning Officer who not only accepted
but also identified the election petitioner, which fact is
admitted by the Returning Officer, R.W. 3 in paragraph 39
to 44 of his cross examination, as such, according to
counsel for the petitioner all formalities for supporting the
contents of From 26 by an affidavit on the part of the
election petitioner having been completed before the
District Magistrate-cum- Returning Officer who is
Magistrate of Ist Class, the oath supporting Form 26 is
deemed to have been taken and absence of signature of
the Magistrate in token of oath having not been recorded
cannot be the basis to nullify the oath taken by the election
petitioner before the District Magistrate-cum-Returning
Officer. In the light of the aforesaid submission learned
counsel for the petitioner submitted that Form 26 was
rightly received by the Returning Officer at the time of
presentation of the nomination paper on 6-4-2009 and
having received Form 26 without pointing out defect the
nomination paper could not have been subsequently
rejected at the time of scrutiny on the ground that Form 26
was defective.
22. Learned counsel for the petitioner also submitted
that Returning Officer also committed error in the order
dated 11-4-2009 written in Hindi by placing reliance on
Clause 9.6 of' Chapter VI of Handbook to justify the
rejection of nomination paper on the ground of substantial
defect. According to learned counsel Clause 9.6(c) refers
to a complete failure to file affidavit in Form 26 and/or
affidavit provided by the Commission for disclosing
criminal antecedents, assets liabilities and educational
qualification, which obviously means non-submission of
the Form itself, wherein necessary disclosures are required
to be made. Once the required Form duly filled in and
signed by the concerned candidate is submitted disclosing
the necessary information Clause 9.6(c) of Chapter VI of
the Handbook is not attracted as the case will not come
within the meaning of defect of substantial nature
contemplated in . clause 9.6 of Chapter VI of the Handbook.
To buttress the aforesaid submission learned counsel for
the election petitioner placed reliance on Clause 10.1 (viii)
of Chapter VI of the Handbook, which instructs the
Returning Officer to reject the nomination paper if the
prescribed affidavit has not been filed at all by the
candidate. According to learned counsel the use of
expression "at all" in the aforesaid clause (viii) indicates
the nature of direction issued by the Commission to the
Returning Officer to reject the nomination paper of the
candidate only in such case in which information required
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to be furnished in Form 26 and Annexure-1 has not been
furnished by the candidate. Reference in this connection,
is also made to the N.B. beneath the aforesaid clause (viii)
preceded by 'or' to clarify clause (viii) by instructing the
Returning Officer NOT to reject a nomination paper if the
prescribed affidavits have been filed but are found or
considered to be defective or containing false information.
In this connection, learned counsel relied on the deposition
of the Returning Officer, R. W. 3 in paragraph 3 of the
examination in chief and paragraph 40 of the cross-
examination and the order dated 11-4-2009 passed by the
Returning Officer in Hindi whereunder Returning Officer
has admitted that election petitioner filed Form 26 along
with nomination paper, which was not only duly filled in
but also singed by him including the oath part and
according to learned counsel the present case was within
the four corners of N.B. beneath sub-clause (viii) of Clause
10.1 of Chapter VI of the Handbook and the nomination
paper of the election petitioner should not have been
rejected.
23. Learned counsel for the petitioner next submitted
that Returning Officer has admitted in paragraphs 82 to 84
of his cross-examination that the case of the petitioner
is in the grey area of sub-clause-(viii) of Clause 10.1 of
Chapter VI of the Handbook and taking note of the grey
area he preferred to reject the nomination paper though he
never referred to clause 10.1 of Chapter VI of the Handbook
in his order dated 11-4-2009, Annexure-3, which was served
on the petitioner or the other order dated 11-4-2009 passed
in Hindi and retained in the file but not served on the
petitioner at the relevant time. Learned counsel submits
that decision of the Returning Officer to reject the
nomination paper even when he was in doubt, as the matter
fell in grey area, is evidently improper and incorrect as the
benefit of doubt in such cases always goes in favour of
the candidate. In this connection, learned counsel referred
to the instructions of the Commission given in clause-7 of
Chapter VI of the Handbook relating to scrutiny informing
the Returning Officer that there is presumption that every
nomination paper is valid unless the contrary is prima facie
obvious or has been made out. In case of a reasonable
doubt as to the validity of a nomination paper, the benefit
of such doubt must go to the candidate concerned and
the nomination paper should be held to be valid. By
improperly rejecting a nomination paper the candidate is
prevented from contesting the election. There is legal
presumption that the result of the election has been
materially affected by such improper rejection and the
election will, therefore, be set aside. There is no such legal
presumption necessarily in the converse case where a
candidate's nomination has been improperly accepted. It
is always safer, therefore, to adopt a comparatively liberal
approach in dealing with minor technical or clerical errors.
24. Learned counsel for the petitioner finally
submitted that the election petition is maintainable and
has been filed complying the provisions of Sections 81,
82, 83 of the Act. The result of the election was declared
on 16-5-2009 and the election petition was presented by
the election petitioner within 45 days on 23.6.2009 on the
ground of improper rejection of the nomination paper as
enumerated under Section 100(1)(c) of the Act
accompanying with additional copies thereof duly attested
by the petitioner as true copy as per the number of
respondents. Since the election petitioner has not claimed
further declaration for himself being elected only the
returned candidate, respondent no.4 has been joined as
respondent along with other officials. A concise statement
of material facts stated in the election petition, specifically
raising the grounds for the improper rejection. The
necessary enclosures have been added as annexures
which are part of election petition clearly sets out the case
of the election petitioner with respect to non-furnishing
of necessary notice etc. by the Returning Officer and/or
pointing any defect and giving opportunity before
rejecting the nomination paper, which is complete cause
of action. In the light of the aforesaid submission, it is
submitted that there is no application of any of the
provisions under Order 7 Rule 11 C.P.C.
25. Learned counsel for respondent no.4 opened his
submission with reference to the judgment of the Supreme
Court in the case of Shri Baru Ram Vs. Smt. Prasanni and
others, AIR 1959 Supreme Court 93, paragraph 14 and
placed reliance over the following passage :-
"Whenever the Statute requires a particular Act to
be done in a particular manner and also lays down that
failure to comply the said requirement leads to a specific
consequence it would be difficult to accept the argument
that the failure to comply with the said requirement should
lead to any other consequence."
26. Learned counsel then referred to Part V, Chapter I
of the Act, which provides for conduct of elections and
nomination of candidate for contesting the elections to
the House of Parliament and to the House and Houses of
the Legislature of each State. Chapter I of Part V of the Act
begins with Section 30 of the Act, which provides for
appointment of dates for nomination etc. Section 31 of the
Act provides for public notice of elections. Section 32 of
the Act lays down that any person may be nominated as
candidate if he is qualified to be chosen to fill that seat
under the provisions of Constitution and the Act. Section
33 of the Act provides for presentation of nomination paper
and the requirement for a valid nomination. Sub-section
(I) of Section 33 of the Act according to the counsel for
respondent no.4 is important for this case which provides
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[PART II—SEC. 3(iii)]
for the date and time of presentation of the nomination
paper by the candidate before the Returning Officer either
in person or through his proposer at the place specified in
this behalf in the notice issued under Section 31 of the
Act. Sub-section (4) of Section 33 of the Act requires the
satisfaction of the Returning Officer that the name and the
electoral roll number of the candidate and his proposer is
the same as those entered in the electoral roll and any
misnomer, inaccurate description, clerical, technical or
printing error in regard to the name of the candidate or his
proposer or any other person, place mentioned in the
electoral roll or the nomination paper shall not affect the
validity of the nomination paper or the electoral roll and is
required to be overlooked. Learned counsel for respondent
no.4 then referred to the judgment of the Supreme Court in
the case of Union of India Vs. Association for Democratic
Reforms and Another, (2002) 5 SCC 294 and submitted
that Supreme Court recognized the right of electors under
Article 19(1 )(a) of the Constitution to know the antecedent
including criminal past of a candidate contesting election
to the Parliament or State Legislature, which is fundamental
and basic for survival of democracy. The little man may
think over before making his choice of electing law breaker
as law maker. The Supreme Court in the said judgment
having read right to information as a facet of right to
freedom of speech and expression enshrined under Article
19(1)(a) of the Constitution vide paragraph 48 of the
judgment dated 2.5.2002 directed the Commission to issue
order under Article 324 of the Constitution calling for
information on affidavit from each candidate seeking
election to Parliament/State Legislature as part of his
nomination paper about the antecedent, assets, liabilities
of the candidate, spouse and other dependents. To comply
the aforesaid direction of the Supreme Court Commission
issued order no.3/ER/2002/JS-II/Vol. III dated 28.6.2002
authorising the Returning Officer to cal1 for information
on affidavit about the antecedent, assets, liabilities of the
candidate, spouse and other dependents with further
direction to the Returning Officer to reject the nomination
paper of the candidate who furnished any wrong,
incomplete or suppressed material information about his
antecedent, assets, liabilities of self, spouse and
dependents in the affidavit filed along with nomination
paper. The Parliament in order to give effect to the direction
of the Supreme Court rendered in the case of Union of
India Vs. Association for Democratic Reforms and
others(supra) inserted Sections 33A, 33 B in the Act by
Act no.72 of 2002 with effect from 28.4.2002. Section 33A
requires the candidate to furnish information under the
Act or the Rules made thereunder together with his
antecedent. Section 33A of the Act requires the candidate
to disclose only those informations which are required
under the Act and the Rules and no other information
directed to be disclosed/furnished under judgment, decree
or order of any court. Validity of Section 33B of the Act
was challenged before the Supreme Court in the case of
People's Union for Civil Liberties(PUCL) and another Vs.
Union of India and the Supreme Court under judgment
dated 13-03-2003 reported in (2003) 4 SCC 399 declared
Section 33B of the Act ultra vires with prospective effect
i.e. from the date of judgment after observing in paragraph
73, 123 that no exception can be taken to the insistence of
affidavit with regard to the matters specified in the
judgment of the Supreme Court in the case of Union of
India Vs. Association for Democratic Reforms(supra). In
order to give effect to the aforesaid judgment of the
Supreme Court Commission issued order no.3ER/2003/JS-
II dated 27-3-2003 in exercise of power under Article 324 of
the Constitution and required the candidates contesting
the election of Parliament, State Legislature to furnish the
required information on affidavit in Annexure-I.
27. Learned counsel for respondent no.4 in the light
of the provisions of Section 33A of the Act as also the
judgment of the Supreme Court in the case of People's
Union for Civil Liberties(supra) submitted that the
candidate contesting the election in terms of the
provisions of the Act is required to furnish information as
per the provisions of Sub-section (1 )(i), (ii) of Section 33A
of the Act to the Returning Officer by way of affidavit filed
under Sub-section( 1) of Section 33 of the Act, as is required
under Sub-section (2) of Section 33A of the Act. Learned
Counsel also submitted that for furnishing information by
the candidate contesting the election under the Act,
information required under Sub-section (1 )(i),(ii) of Section
33-A of the Act is required to be furnished. For furnishing
such information Rule 4A of the Rules was inserted in the
Rules providing for information in Form 26 duly supported
by affidavit which is required to be delivered to the
Returning Officer along with nomination paper under Sub-
section (1) of Section 33 of the Act. Learned Counsel for
respondent no.4 also submitted that conjoint reading of
Sections 33(1) and 33-A(2) of the Act would make it
obvious that the intendment of Parliament is to ensure
that Form 26 is filed by the candidate or his proposer before
the Returning Officer along with nomination paper.
Nomination paper filed without affidavit supporting Form
26 cannot be said to be a complete nomination paper as
provided under Section 33(1) of the Act.
28. Learned Counsel further submitted that in case,
Form 26 duly supported by an affidavit is not filed along
with nomination paper the same may be filed until 3 P.M.
of the last date for filing nomination paper but once the
time is over for filing nomination paper affidavit supporting
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Form 26 cannot be filed to remove the defect in the
nomination paper and for non-filing of the said affidavit
supporting. Form 26 the nomination paper of the candidate
concerned is incomplete the Returning Officer is left with
no option but to reject the nomination paper of the
candidate concerned as on the date of scrutiny the
Returning Officer cannot permit the candidate to remove
the defect by filing affidavit supporting Form 26 and/or
allowing the candidate concerned to support Form 26 by
an affidavit on the date of scrutiny though Form 26 filed
with the nomination paper at the time of presentation of
the nomination but without affidavit.
29. Learned counsel further submitted that the
election petitioner is well educated person and has
practiced as a lawyer also for sometime and therefore he
cannot say that he was not aware about the procedures
by which an affidavit is affirmed. In his evidence itself
election petitioner has admitted the fact that he worked as
lawyer for sometime and therefore he was aware about the
affidavits, yet he filed his nomination paper with Form 26
but without supporting the same with an affidavit. In his
deposition before the court also he has stated that no
attestation by any 1st Class Magistrate or Oath
Commissioner appointed by the High Court or Notary
Public is required. Reference in this connection, was made
by the leaned counsel for respondent no.4 to paragraphs 1
to 12 of the cross examination of the election petitioner.
30. Learned counsel for respondent no. 4 also
submitted that Sub-section (2)(b) of Section 36 of the Act
provides that the Returning Officer may reject a nomination
paper for failure to comply with any of the provisions of
Section 33 or Section 34 of the Act. Sub-section (5) of
Section 36 of the Act cast a duty on the Returning Officer
to hold the scrutiny on the date appointed in this behalf as
per sub-clause-(b) of Section 30 of the Act and shall not
allow any adjournment of the scrutiny proceeding unless
interrupted or obstructed by riot or open violence or cause
beyond his control. Proviso to Sub-section (5) of Section
36, however, provides that in case an objection is raised by
the Returning Officer or is made by any other person, the
candidate concerned may be allowed time to rebut the
objection not later than the next day but one following the
date fixed for scrutiny. According to learned counsel proviso
to Sub-section (5) of Section 36 provides for adjournment
for rebuttal but this adjournment could be granted by the
Returning Officer only if it is asked for. The object behind
this adjournment was that if any objection is raised at the
time of scrutiny since it is by 'surprise, the candidate
concerned may be allowed time so that he could be heard
in rebuttal and if he is intending to produce any document
in rebuttal he should get opportunity for being heard in
rebuttal.
31. Learned counsel for respondent no. 4 has given
example by stating that if any nomination is objected to by
raising objection there could be a purpose for adjournment
if the candidate concerned or his representative would ask
for time for rebuttal but if the candidate or his representative
is not interested for rebuttal of the objection and is not
asking for any adjournment or time there is no purpose to
adjourn the proceeding of scrutiny for the next date by the
Returning Officer suo motu. To grant time is the discretion
of the Returning Officer but the discretion he will be
exercising only when an adjournment is prayed for not suo
motu. Having made such submission learned counsel for
respondent no.4 stated that admittedly Form 26 was filed
without affidavit. When the petitioner presented his
nomination paper before the Returning Officer in view of
the provisions contained in Sub-section (4) of Section 33,
the four sets of nomination paper so filed was verified from
technical point of view and as Form 26 was filed without
affidavit with the nomination paper, it was not indicated in
the memo issued to the election petitioner that he is required
to file affidavit in Form 26. The prescribed format for issue
of memo to the candidate concerned does not provide for
any column regarding any defect in Form 26. According to
Form prescribed the candidate concerned is required to be
informed only when no Form 26 is filed with the nomination
paper which is not the case here. Form 26 was filed by the
petitioner along with nomination paper but without affidavit
and thus neither the Returning Officer can be blamed for
failure in his duty to inform the election petitioner through
the memo for filing of another Form 26 on affidavit or for
getting the Form 26 filed by the petitioner supported by an
affidavit which the election petitioner has filed along with
his nomination paper. In this connection, learned counsel
for respondent no.4 at the cost of repeatation submitted
that since the election petitioner was himself a lawyer and
was thus aware of the process in which affidavit is sworn,
he cannot be permitted to take benefit of his own wrong
particularly in view of his evidence in cross-examination,
paragraph 8.
32. Learned counsel for respondent no.4 further
submitted that it is also the admitted position in the case
that on the date of scrutiny the election petitioner was
himself not present before the Returning Officer. His
representative Prabhakar Prasad Singh was there when the
nomination paper of the election petitioner was taken up
for scrutiny, the objection was raised by the Returning
Officer himself about the defect in Form 26. From the detailed
order sheet maintained by the Returning Officer for the
impugned election, it is evidently clear that when this
objection was raised by the Returning Officer in Form 26,
the representative of the election petitioner accepted the
fact that Form 26 is not supported by an affidavit but he
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did not ask for any hearing or adjournment of scrutiny of
the nomination paper of his candidate, though according
to order sheet process of scrutiny continued until 9 P.M.
33. Learned counsel for respondent no.4 refuted the
submission made by the counsel for the petitioner that
order dated 11-4-2009 passed in Hindi and kept in the order
sheet without serving a copy thereof on the petitioner is
not only post script but also ante-timed to explain and
establish that representative of the election petitioner did
not ask for any adjournment to explain the objection raised
by the Returning Officer at the time of scrutiny of the
nomination paper of the election petitioner that Form 26
filed -by the election petitioner along with nomination paper
was defective is afterthought and has been raised by the
petitioner for the first time during the argument as such
plea is neither taken in the election petition nor put to the
Returning Officer in cross-examination which continued
for couple of days. In this connection, counsel for
respondent no.4 also submitted that nothing has been
brought on record to disbelieve the Returning Officer to
draw any adverse inference against him that he maintained
the detailed order sheet only with a view to help respondent
no.4. Counsel for the respondent no.4 also made reference
to the Handbook which is issued by the Commission in
exercise of power under Article 324 of the Constitution.
34. Before placing reliance on the relevant portion of
the Handbook learned counsel for respondent no.4 relied
on following passage of the judgment of the Supreme Court
in the case of Kuldip Nayar and others Vs. Union of India
and others, (2006) 7 SCC 1, paragraph 427.
“In this context, we would say that where the law on
the subject is silent, Article 324 is a reservoir of power
for the Election Commission to act for the avowed
purpose of pursuing the goal of a free and fair
election, and in this view it also assumes the role of
an adviser. But the power to make law Under Article
327 vests in Parliament, which is supreme and so,
not bound by such advice. We would reject the
argument by referring to what this court has already
said in Mohinder Singh Gill and what bears reiteration
here is that the limitations on the exercise of "plenary
character" of the Election Commission include one
to the effect that "when parliament or any State
Legislature has made valid law relating to or in
connection with elections, the Commission, shall act
in conformity with, not in violation of, such
provisions."
35. Having relied on the aforesaid paragraph of the
judgment of the Supreme Court learned counsel for
respondent no.4 referred to Chapter V of the Handbook
which deals with nomination. Paragraph 7.2 of the said
Chapter cast a duty upon the Returning Officer that he
should also attach to nomination form, a copy of Form 26
and a copy of the Commission's order no.3/ERl2003/JS-II
dated 27-3-2003 and paragraph no. 10.3 of the said Chapter
provides that no one should be allowed to enter the
Returning Officer's room after 3 P.M. for the purpose of
delivery of any such document to any intending candidate.
He also referred to paragraph 15.1, which provides for
preliminary examination of nomination paper and states
that no sooner a nomination paper is presented the
Retuning Officer or the Assistant Returning Officer, as the
case may be, is required by law to examine then and there
from the technical stand point “but Returning Officer/
Assistant Returning Officer” is not required to hold any
formal scrutiny of any nomination paper at that stage.”
36. Learned counsel for respondent no.4 also referred
to paragraph 19.1 of Chapter V, which cast a duty upon the
Returning Officer to bring to the notice of the candidate
the requirement of filing an affidavit in Form 26 but such
duty casts upon the Returning Officer only when no affidavit
in Form 26 has been filed. Returning Officer has been further
directed to receive any document like affidavit in Form 26
latest by 3 P.M. on the last date of filing nomination.
According to learned counsel paragraph 19.1 of Chapter V
lays down the Returning Officer from accepting any
affidavit in Form 26 after expiry of time for filing of
nomination paper. In view of the aforesaid contents of
Chapter V of the Handbook, learned counsel for respondent
no.4 submitted that on the date of scrutiny the Returning
Officer had no authority to accept any document or affidavit
in Form 26. He further referred to Chapter VI of the
Handbook, which deals with scrutiny of nomination paper
Paragraph 9.6 is the list of defects of substantial nature,
which also include failure to file affidavit in Form 26 and/or
affidavit provided by the Commission for disclosing the
criminal antecedent, assets, liabilities and education
qualification. Paragraph 10.1 of Chapter VI deals with
grounds for rejection of nomination paper and provides
that Returning Officer must reject the nomination paper if
the prescribed affidavit has not been filed at all by the
candidates.
37. Learned counsel for respondent no.4 also referred
to the submission made by the counsel for the petitioner
with reference to N.B. below clause (viii) of paragraph 10.1
of Chapter VI and submitted that in paragraph 10.1
nomination should not be rejected if the prescribed
affidavits have been filed and thus according to learned
counsel filing of affidavit along with nomination paper is a
must, but in the present case as Form 26 was filed along
with nomination paper without supporting the same with
affidavit, Returning Officer was duty bound to reject the
same in compliance of the instruction of the Commission
contained in clause (viii) of paragraph 10.1.
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38. Learned counsel for respondent no. 4 further
submitted that in view of the provisions of Article 324 of
the Constitution the power of superintendence, direction
and control of election is vested in the Commission and in
exercise of such power if the Commission has issued
direction through the Handbook, which requires the
Returning Officer to reject a nomination paper if the
prescribed affidavit has not been filed. The Returning Officer
had committed no mistake when he rejected the nomination
paper of the petitioner for not filing Form 26 duly supported
by an affidavit.
39. Learned counsel further submitted that Sub-
section (2)(b) of Section 36 of the Act confers power upon
the Returning Officer to reject a nomination if there has
been a failure to comply with any of the provisions of
Sections 33, 34. In this connection, it is pointed out that
Section 33A requires filing of an affidavit along with
nomination paper under Section 33(1) and according to
counsel, nomination paper filed without the affidavit
required under Section 33A cannot be said to be complete,
unless the required affidavit is filed along with nomination
paper and in such circumstances, the Returning Officer
had committed no mistake when he rejected the nomination
paper of the election petitioner.
40. Learned counsel for respondent no.4 also referred
to Rule 4 of the Rules, which requires a candidate to file his
nomination paper in one of the Form 2A to 2E which is to
be presented under Sub-section (1) of Section 33 of the
Act. Rule 4A requires the candidate or his proposer, as the
case may be, to deliver affidavit supporting Form 26 along
with nomination paper under Sub-section (1) of Section 33.
Thus the affidavit in Form 26 has to be filed along with
nomination paper until 3 P.M. of the last date for filing of
nomination paper. Such requirement of filing of Form 26
supported by an affidavit along with nomination paper
would make it clear that affidavit in Form 26 is part of
nomination paper and unless an affidavit in Form 26 is filed
the nomination paper is not complete as required under
Section 33 of the Act. Reliance in this connection is placed
on the judgment of the Andhra Pradesh High Court in the
case of Mohd. Chand Pasha Vs. T. Madhusudhan Reddy
and another, 2006(3) ALD 105. Reference is also made to
judgment of the Allahabad High Court in the case of Hari
Krishna Lal Vs. Atal Bihari Bajpai, AIR 2003, Allahabad 128
as also to the judgment of the Supreme Court in the case of
Shaligram Shrivastava Vs. Naresh Singh Patel, (2003) 2 SCC
176.
41. Finally learned counsel for respondent no.4
submitted that the judgment in the case of Ramesh Rout
Vs. Rabindra Nath Rout, (2012) 1 SCC 762 relied upon by
the counsel for the election petitioner is not applicable to
the facts of the present case because in the case of Ramesh
Rout(supra) the symbol allotment form in original was
available when the nomination paper was presented and
therefore, presumption was drawn that the original might
have been lost when nomination form was sent for preparing
the photostat copy. In the present case, it is admitted
position that Form 26 which is filed along with nomination
paper was not supported by an affidavit at the time of
presentation of nomination paper, which defect was not
cured until 3 P.M. of the last date for filing of nomination
paper. The requirement of filing of affidavit is the
requirement of law as declared by the Supreme Court in the
case of Union of India Vs. Association for Democratic
Reforms and Another (supra), which is also the law of land
under Article 141 of the Constitution. In case, failure to
support the prescribed form by an affidavit is held not to
be sufficient ground for rejection of nomination paper, the
two judgments of the Supreme Court in the case of Union
of India Vs. Association for Democratic Reforms and
Another (Supra) and People's Union for Civil Liberties
(supra) would become teethless as direction of the Supreme
Court to furnish information required under Section 33(1)
of the Act in Form 26 duly supported by an affidavit shall
thereby become ineffective and without any force of law
as for such failure the nomination could not be rejected.
42. In order to consider the correctness or otherwise
of the rival submissions made on behalf of the election
petitioner and respondent no.4, it is necessary to first notice
the admitted facts. Impugned election was notified on
2.4.2009, as would appear from Annexure-I issued by the
Commission fixing 9.4.2009 as the last date for making
nomination. Election petitioner filed his nomination paper
in person in four sets on 6.4.2009 at 1.25 P.M. in Form 2A
comprising six parts along with required documents
including Form 26, as required by Rule 4A of th Rules and
affidavit Annexure-I in compliance of the order of the
Commission bearing no.3/ER/2003/JS-II dated 27-3-2003.
Returning Officer having received the nomination paper of
the election petitioner in four sets subjected the documents
filed along with nomination paper to preliminary
examination from the technical stand point, as is required
of him in terms of instruction of the Commission contained
in Handbook for 2009 General Election vide instructions
contained in paragraph 15.1 of Chapter V of the Handbook.
The Returning Officer, Senior Incharge Officer, Deputy
Election Officer and Designated Police Officer examined
the documents appended with the nomination paper of the
petitioner from technical stand point prepared check list
dated 6-4-2009, Ext. 5 and 6 indicating that petitioner filed
two affidavits one in Form 26 and the other Annexure-1 in
compliance of the order of the Commission dated
27-3-2003, which is not defective. Copy of the check list,
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[PART II—SEC. 3(iii)]
Annexure-2 was given to the petitioner and the other
copy retained in the office of the Returning Officer. Both
the check list of documents has been marked as Exts. 5
and 6 vide paragraphs 24 to 29 of the cross-examination
of Returning Officer, R. W. 3. Having received the check
list dated 6-4-2009 petitioner became satisfied that there
is no defect in the documents submitted by him along
with his nomination paper including Form 26 as no
notice was issued to him pointing out any defect in
Form 26 under clause 19.1 of Chapter V of the Handbook
vide paragraphs 52 to 54 of the cross-examination of
Returning Officer, R.W. 3 and instructed his proposer
Sri Prabhakar Prasad Singh, P.W. 2 to appear before the
Returning Officer on his behalf on the date and time
fixed for scrutiny of the nominations i.e.
11-4-2009. In the light of the authorization made by the
election petitioner Sri Prabhakar Prasad Singh P.W. 2
appeared before the Returning Officer on 11-4-2009 the
date fixed for scrutiny. During the scrutiny of the
nominations Returning Officer perused the nomination
papers filed by the election petitioner along with other
documents including Form 26 and affidavit Annexure-1
and having found Form 26 submitted by the petitioner
along with his nomination papers not been supported
by an affidavit duly sworn before a Magistrate of 1st
Class or Notary Public or Oath Commissioner appointed
by the High Court rejected the four sets of nomination
paper of the petitioner bearing serial no. 1 to 4 by four
separate orders dated 11-4-2009 passed in English,
which is appended with Part 5 of each of the four
nomination paper marked Exts. 8, 8/1, 8/2 and 8/3, copy
whereof was also given to the petitioner on 12-4-2009
at 10 A.M. Petitioner in order to register his protest
before the Returning Officer that his nomination paper
has been erroneously rejected under order dated
11-4-2009 on the ground that Form 26, Ext. A/3 submitted
by the election petitioner along with his nomination
paper on 6-4-2009 was not defective, filed petition dated
12-4-2009, Ext. 3 stating that From 26 was filed by the
petitioner along with nomination paper on 6-4-2009
which was subjected to technical examination by the
Returning Officer and others on 6-4-2009 but no defect
was communicated to the petitioner, as would appear
from the check slip dated 6-4.2009, Ext. 5, 6. For the first
time such objection was raised by the Returning Officer
during scrutiny on 11-4-2009 and without giving
opportunity either to the representative of the petitioner
Sri Prabhakar Prasad Singh, P.W. 2 who was present
during scrutiny or to the petitioner order dated
11-4-2009 rejecting the nomination of the petitioner was
passed, though representative of the petitioner, P.W. 2
requested the Returning Officer to adjourn the scrutiny
proceeding so as to enable the representative of the
petitioner as also the petitioner to explain the position
with reference to the check slip dated 6-4-2009, Exts. 5,
6 and the provisions of the Act and the Rules. In the
representation dated 12-4-2009, Ext. 3 it was further
stated that certified copy of the order dated 11-4-2009
was delivered to the election petitioner on 12-4-2009 at
10 A.M. From perusal of complete order sheet
maintained by the Returning Officer in connection with
impugned election in Hindi which has also been marked
as Ext.9 it appears that scrutiny of the nomination papers
filed by the different prospective candidate(s) for
contesting the impugned election was taken up on
11-4-2009. The scrutiny of the nomination paper of the
election petitioner was taken up at the end of the
scrutiny proceeding which continued until 9 P.M. In
the ordersheet, Ext. 9 Returning Officer besides
incorporating the reason for rejecting the nomination
paper of the election petitioner that petitioner filed Form
26 without supporting the contents of Form 26 by an
affidavit also incorporated in the ordersheet, Ext. 9 that
neither representative of the petitioner present during
scrutiny sought for adjournment to explain the position
nor prayed for time to adjourn the scrutiny proceeding
for removal of defect. It has, however, not been disputed
before this Court that copy of order dated 11-4-2009
passed in Hindi, Ext. 9 incorporating the conduct of the
representative of the election petitioner during scrutiny
of the nomination paper of the petitioner was not served
on the petitioner.
43. Aforesaid factual position is to be considered
in the light of the provisions of Part V of Chapter I of
the Act, which includes Sections 30, 33, 33A and 36 of
the Act and Rule 4, 4A of the Rules. In the light of
Section 30 of the Act, Commission notified the election
under notification dated 2.4.2009 fixing 9-4-2009 as the
last date for filing nomination paper(s). Petitioner filed
his nomination paper on 6-4-2009 in Form 2A providing
the necessary information as is required by different
parts of the nomination form 2A along with other
information required under Sub-section (1)(i)(ii) of
Section 33-A inserted by Act 72 of 2002 with effect from
24-8-2002 and Rule 4A inserted by S.O. No.935(E) dated
3-9-2002 providing for further information required under
Section 33-A(1)(i)(ii) of the Act vide Form 26 and
affidavit in Annexure-l in compliance of the order of the
Commission no.3/ER/2003/JS-ll dated 27-3-2003.
Returning Officer, Specified Assistant Returning Officer
and Deputy Election Officer having received the
nomination paper of the petitioner subjected the same
including Form 26 and Annexure-1 filed by the petitioner
along with his nomination papers to preliminary
examination from the technical stand point as per the
instruction of the Commission in paragraph 15.1 of
Chapter V of the Handbook which clearly instructs the
Returning Officer to examine the documents submitted
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along with the nomination paper from the technical stand
point but not to hold any formal scrutiny of the
nomination paper at that stage. Returning Officer,
Specified Assistant Returning Officer, Deputy Election
Officer and Designated Police Officer examined the
documents submitted by the election petitioner along
with his nomination paper no sooner the same was
delivered to the Returning Officer on 6-4-2009 and after
being satisfied that there was no defect in the
document(s) submitted by the petitioner along with his
nomination paper issued check slip dated 6-4-2009, Ext.
6 to the petitioner indicating that there was no defect in
the documents submitted by the petitioner along with
nomination papers including Form 26 and kept another
copy of check slip dated 6-4-2009 also Ext. 5 duly signed
by the Specified Assistant Returning Officer,
Designated Police Officer, Deputy Election Officer and
the Returning Officer for official use. Having examined
the documents appended with the nomination paper on
the date of presentation/receipt of the nomination paper
i.e. 6-4-2009 and issued check slip of the documents
dated 6-4-2009, Exts. 6, 5 indicating that there is no defect
in the document(s) filed by the petitioner along with
nomination paper, the Returning Officer is required to
examine the nomination paper, Form 2A and its parts
during scrutiny to decide all objections which may be
made to any nomination either by the candidate or his
representative or by the Returning Officer on his own
motion after summary enquiry as he thinks necessary
for ascertaining (a) that the candidate either is not
qualified or is disqualified (b) that there has been 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.
44. During scrutiny of the nomination paper on
11-4-2009 the Returning Officer did not find any mistake
in the nomination form, 2A presented by the petitioner
on 6-4-2009 including its different parts. Returning
Officer, however, during scrutiny on his own noticed
defect in Form 26 submitted by the petitioner alongwith
his nomination form in terms of Section 33-A of the Act
and Rule 4A of the Rules as Form 26 filed by the
petitioner along with his nomination form was not
supported by an affidavit affirmed before a Magistrate
of 1st Class, Notary Public or Oath Commissioner of
the High Court. Having noticed such defect the
Returning Officer, R.W. 3 rejected the nomination paper
of the petitioner on the date of scrutiny under order
dated 11-4-2009, Annexure-3 appended with part 5 of
the four sets of the nomination paper of the petitioner
Exts. 8, 8/1, 8/2, 8/3 and Ext. 9 passed in Hindi as
Returning Officer was of the view vide paragraphs 58
to 62 of his cross examination that the defect in
nomination paper in regard to affidavit including
affidavit supporting Form 26 can be permitted to be
removed until 3 P.M. of the last date for filing the
nomination paper and not thereafter on the date of
scrutiny of the nomination paper. In paragraphs 79 to
84 of the cross examination, Returning Officer, R. W. 3
stated that he passed the rejection order relying on
clause 9.6 of Chapter VI of the Handbook, which is
referred to in the order sheet maintained by him in Hindi
in connection with impugned election dated 11-4-2009,
Ext. 9 giving further reasons for rejection of the
nomination paper of the election petitioner. According
to Returning Officer clause 9.6 of Chapter VI of the
Handbook provides for defect of substantial nature in
the nomination paper and ground for rejection of the
nomination paper vide clause 10.1 (viii) of Chapter VI of
the Handbook. In paragraph 83 of cross examination
attention of the Returning Officer has been invited
towards N.B. beneath sub-clause (viii) of clause 10.1 of
Chapter VI, Returning Officer stated thereafter that if
the prescribed affidavit is filed but found or considered
to be defective or containing false information the
nomination should not be rejected on this ground.
Returning Officer, however, volunteered in the same
paragraph that the present case is in the grey area of
sub-clause (viii) and the note below yet ignoring the
instruction contained in clause 7 of Chapter VI of the
Handbook that there is presumption that every
nomination paper is valid unless the contrary is prima
facie obvious or has been made out. In case of a
reasonable doubt as to the validity of a nomination
paper, the benefit of such doubt must go to the candidate
concerned and the nomination paper should be held to
be valid as in case of improper rejection candidate is
prevented from contesting the election. There is legal
presumption that the result of the election has been
materially affected by improper rejection of the
nomination but there is no such legal presumption
necessarily in' the converse case where a candidate's
nomination has been improperly accepted. The
Returning Officer ignoring the aforesaid instruction of
the Commission placing reliance on clause 9.6 of Chapter
VI of the Handbook proceeded to reject the nomination
paper of the election petitioner under the impugned
order, which even otherwise is contrary to the mandate
of Sub-section (2) of Section 36 of the Act whereunder
Returning Officer is empowered to reject a nomination
paper on three grounds. In the instant case, Form 2A
filed by the petitioner together with its six parts can be
rejected only on the ground (a) that the candidate either
is not qualified or is disqualified (b) that there has been
a failure to comply with the provisions of Section 33 or
34 of the Act or (c) that the signature of the candidate
orthe proposer on the nomination paper is not genuine.
From the order of the Returning Officer dated 11-4-2009,
Annexure-3 passed in English, certified copy whereof
was given to the election petitioner on 12-4-2009 at
10 A.M. as also from the other order dated 11-4-2009,
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Ext. 9 passed by the Returning Officer in Hindi, certified
copy whereof was not served on the petitioner, it does
not appear that any of the aforesaid three grounds as
incorporated in Sub-Sections (2)(a)(b)(c) of Section 36
of the Act is made out against the petitioner, as such,
order rejecting the nomination paper of the petitioner
placing reliance on clause 9.6 of Chapter Vl of the
Handbook is not in accordance with law as instructions
of the Commission issued under Article 324 of the
Constitution cannot be allowed to supplant the
statutory provisions contained in Sub-section (2) of
Section 36 of the Act and the Rules framed thereunder.
Nomination paper can be rejected only on the grounds
specified in Sub-section (2) of Section 36 of the Act as
also for failure of the candidate to furnish any
information required under Form 2A and its six parts by
the last date fixed for filing of nomination paper. The
nomination paper of the election petitioner, in my
opinion, should not have been rejected for his failure to
support the contents of Form 26 by an affidavit, all the
more when no such defect was pointed out to the
petitioner after technical examination of Form 26 in the
check slip dated 6-4-2009, Exts. 5, 6. Form 26 being not
the part of the nomination paper Form 2A, which is in
terms of Rule 4 of the Rules, any defect noticed in Form
26 envisaged under Rule 4A of the Rules could have
been removed by the petitioner until the date of scrutiny
by granting him reasonable opportunity to remove the
same. It was the Returning Officer who noticed the
defect in Form 26 filed by the petitioner during scrutiny
on his own, as such, Returning Officer should have
granted the petitioner or his representative, P.W. 2 who
was present during scrutiny reasonable opportunity to
remove the defect in Form 26 by supporting the same
by an affidavit within a reasonable time, either on the
same day or by adjourning the scrutiny proceeding to
the next day even if representative of the election
petitioner, P. W. 2 had neither sought opportunity to
explain the defect nor to adjourn the scrutiny proceeding
to the next day, as is sought to be made out in the order
dated 11-4-2009 passed by Returning Officer in Hindi
and kept in the order sheet but admittedly not served
on the election petitioner. In this connection, I may refer
to the evidence of P. W. 2 in paragraphs 54, 55 where he
has categorically stated that he made verbal request
during Scrutiny proceeding for grant of time but the
same was refused by the Returning Officer. P.Ws. 3, 4
have also contradicted the Returning Officer in the
examination in chief and cross examination by
categorically stating that they appeared before the
Returning Officer in the evening of 11-4-2009 and
requested the Returning Officer to either ignore the
defect in Form 26 or to permit the election petitioner to
remove the defect by obtaining affidavit supporting the
contents of Form 26 but the Returning Officer in view
of his understanding of the legal position that affidavit
in support of Form 26 cannot be allowed on the date of
scrutiny of the nomination paper did not allow the
election petitioner and his representatives to remove
the defect.
45. Reliance placed by the counsel for respondent
no.4 on the judgment of the Andhra Pradesh High Court
in the case of Mohd Chand Pasha (supra) is
misconceived for the reason that thereunder
opportunity was granted to the election petitioner to
furnish Form 26 by a particular date and time but he
failed to furnish the same within the time granted, as
such, the said case has no application to the case in
hand as in the instant case no opportunity whatsoever
was granted to the petitioner to furnish the affidavit
supporting the contents of Form 26. Reliance placed by
the counsel for respondent No. 4 on the judgment of
the Allahabad High Court in the case of Hari Krishna
Lal (supra) and of the Supreme Court in the case of
Shaligram Shrivastava (supra) is also misconceived as
the judgment in the aforesaid cases has been rendered
in connection with election held for 13th Lok Sabha in
the year 1999 and bye election held in February, 2000
respectively when there was neither Section 33-A
inserted in the Act nor Rule 4A inserted in the Rules nor
Part IlIA appended with the nomination form 2A
requiring the candidate contesting the election to
furnish information concerning conviction for any
offence(s) under Sub-section (1) or for contravention
of any law specified in Sub-section (2) of Section 8 of
the Act or for any other offence(s) for which the
candidate has been sentenced to undergo imprisonment
for 2 years or more. Aforesaid insertions in the Act,
Rules and Form 2A having been made with effect from
24-8-2002, 3-9-2002 and 27-3-2003 much after the
judgment rendered in the case of Hari Krishna Lal (supra)
and Shaligram Shrivastava (supra), the Court had no
occasion to consider the provisions referred to above
while rendering the judgment in the case of Hari Krishna
Lal (supra) and Shaligram Shrivastava (supra), as such
reliance placed over the two judgments is misconceived.
46. In view of my discussion above, I am of the
view that the nomination of the election petitioner for
contesting the impugned election was improperly
rejected by the Returning Officer under order dated
11-4-2009, Annexure-3, Ext. 9, which is set aside and the
impugned election of the returned candidate i.e.
respondent no.4 is held to be void with direction to the
Commission to hold bye election for 25 Khagaria
Parliamentary Constituency within reasonable time from
the date of receipt/production of a copy of this judgment
before the Secretary to the Commission.
Patna High Court, Patna
(V. N. SINHA, J)
Dated 6th day of
[No. 82/BR-HP/(1/2009)/2013]
February, 2013
By Order,
TAPAS KUMAR, Pr. Secy.
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THE GAZETTE OF INDIA : MARCH 9, 2013/PHALGUNA 18, 1934
[PART II—SEC. 3(iii)]
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ORDER
New Delhi, the 4th March, 2013
O.N. 16.—Whereas, the Election Commission of India is satisfied that each of the contesting candidate specified in
column 4 of the Table below at the General Election to the Legislative Assembly, 2011 from the state of Tamil Nadu specified
in column 2 and held from the constituency specified in column 3 against his/her name has failed to lodge the account of his/
her election expenses as shown in column 5 of the said Table as required by the Representation of the People Act, 1951 and
the Rules made thereunder:
And whereas, the said candidates have either not furnished any reason or explanation for the said failure even after
due notice by the Election Commission or after considering the representation made by them, if any, the Election Commission
is satisfied that they have no good reason or justification for the said failure:
Now, therefore, in pursuance of Section 10A of the said Act, the Election Commission hereby declares the persons
specified in column 4 of the Table below to be disqualified for being chosen as and for being a member of either house of
Parliament or the Legislative Assembly or Legislative Council of a State of Union Territory for a period of three years from
the date of this order :—
Sl. Particulars of Election
Sl. No. and Name of
Name and Address of
Reasons for
No.
Assembly
Contesting Candidate
Disqualification
Constituency
1
2
3
4
5
1.
General Election to the
77-Ulundurpettai
Chandra Sekaran N.
Failed to lodge any account
Legislative Assembly, 2011
716, Amman Koil Street,
of his election expenses.
Sengurichi Ulundurpet (TK)
Viluppuram District
1
2
3
4
5
114
THE GAZETTE OF INDIA : MARCH 9, 2013/PHALGUNA 18, 1934
[PART II—SEC. 3(iii)]
1
2
3
4
5
2.
General Election to the
77-Ulundurpettai
Devar M.
Failed to lodge any account
Legislative Assembly, 2011
North Street, Kanaiyar Post
of his election expenses.
Ulundurpet (TK)
Viluppuram District
3.
-do-
-do-
Muthaiyan G.
-do-
Kulathukarai Street,
Ulundurpet (TK)
Viluppuram District
4.
-do-
-do-
Jagatheesan L.
-do-
46-26, Reddykuppam Road,
Saidapettai Chennai-600002
5.
-do-
80-Kallakurichi (SC)
Rajesh N.
-do-
48, Kottaimedu,
Siruvangur Road,
Kallakurichi
Villupuram-606202 Town
6.
-do-
193-Madurai Central
R. Radhakrishnan
-do-
9, Northlane, 1st Street,
Northvelistreet Simmakal
Madurai-625001
7.
-do-
-do-
K.M. Muthuraj
-do-
No. 42, Chokkalinga Nagar
Second Street
Madurai-625010
8.
-do-
189-Madurai East
P. Rajkumar
-do-
Mayandipatty,
Posaripatty Post
Therkutheru Via
Madurai District
9.
-do-
-do-
K. Tamilselvi
-do-
5, Kaliamman Kovil Street,
Sellur Madurai District
10.
-do-
190-Sholavandan
A. Ananthakumar
-do-
(SC)
D. No. 17.3.63—10.8.17,
Ponperumal Kovil ST
Ramanaickenpatti, Vadipatti
Madurai District
11.
-do-
-do-
M. Vazhipiranthal
-do-
75-90, Mandugal Kovil
Street Ayyankottai,
Aathur Taluk,
Dindugul Dt.
12.
-do-
-do-
A. Veeran
-do-
1E/NA Malaisamypuram
Kodikulam, YA. Othakadai
Post, Madurai District
¹Hkkx II—[k.M 3(iii)º
Hkkjr dk jkti=k % ekpZ 9] 2013@iQkYxqu 18] 1934
115
13. General Election to the
190-Sholavand AN
N. Krishnaveni
Failed to lodge any account
Legislative Assembly, 2011
(SC)
3-99 T Ayyankottai
of his election expenses.
Thanichiyam Via Vadipatti
TK, Madurai District
14.
-do-
196-Thirumang Alam
M. Muthumani
-do-
569/3/160 Melakkottai
Thirumangalam Taluk
Madurai-625706
15.
-do-
-do-
P. Muthu
-do-
Kandal, West Street
Sathangudi Post
Thirumangalm Taluk
Madurai District
16.
-do-
-do-
P. Jayapandi
-do-
54/16 Pandeeswarar Nagar
Sholavandan Road
Thirumangalam-625706
17.
-do-
197-Usilampatti
N. Nagarajan
-do-
1-1-23A South Street
Elumalai Peraiyur Taluk
Madurai District
18.
-do-
-do-
P. Muthiah
-do-
197, Usilampatti Road,
Thirumangalam
Madurai District
19.
-do-
-do-
K. Rajeev
-do-
Ramathevar Street,
Ward 22, Peraiyur Road,
Usilampatti Taluk
Madurai District
[No. 76/TN-LA/2011]
By Order,
TAPAS KUMAR, Pr. Secy.
ubZ fnYyh] 8 ekpZ] 2013
vk-v- 17-—yksd izfrfuf/Ro vf/fu;e 1950 (1950 dk 43) dh /kjk 13&d dh mi&/kjk (1) }kjk iznÙk 'kfDr;ksa dk iz;ksx djrs
gq, Hkkjr fuokZpu vk;ksx v:.kkpy izns'k jkT; ljdkj ds ijke'kZ ls ,rn~}kjk] Jh pUnz Hkw"k.k] vkbZ-,-,l- (,-th-,e-;w- % 95)] dks muds
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2- Jh pUnz Hkw"k.k] vkbZ-,-,l-] v:.kkpy izns'k jkT; ljdkj ds v/hu lHkh inHkkj ;k fdlh dk;Z ds inHkkjksa dks rRdky lkSai nsaxs
;k /kj.k djuk lekIr dj nsaxs] tks fd os ,slk inHkkj xzg.k djus ls igys /kj.k dj jgs Fks A
3- Jh pUnz Hkw"k.k] vkbZ-,-,l-] eq[; fuokzpu vf/dkjh] v:.kkpy izns'k jkT; ds :i esa dk;Z djrs gq, v:.kkpy izns'k jkT;
ljdkj ds v/hu fdlh Hkh izdkj dk dksbZ vfrfjDr dk;ZHkkj xzg.k ugha djsaxs flok; blds fd mudks jkT; lfpoky; esa fuokZpu foHkkx ds
izHkkjh] ljdkj dk lfpo inkfHkfgr fd;k tk;sxk A
¹la- [email protected]@2013@fu-;ks-v-º
vkns'k ls]
lqfer eq[kthZ] lfpo
1
2
3
4
5
116
THE GAZETTE OF INDIA : MARCH 9, 2013/PHALGUNA 18, 1934
[PART II—SEC. 3(iii)]
New Delhi, the 8th March, 2013
O.N. 17.—In exercise of the powers conferred by sub-section (1) of Section 13A of the Representation of the People
Act, 1950 (43 of 1950), the Election Commission of India, in consultation with the Government of Arunachal Pradesh, hereby
nominates Sh. Chandra Bhushan, IAS (AGMU-95) as the Chief Electoral Officer for the State of Arunachal Pradesh with
effect from the date he takes over charge and until further orders.
2. Sh. Chandra Bhushan, IAS shall cease to hold and hand over forthwith the charge of all or any charges of work
under the Government of Arunachal Pradesh, which he may be holding before such assumption of office.
3. Sh. Chandra Bhushan, IAS while functioning as the Chief Electoral Officer, Arunachal Pradesh shall not hold any
additional charge whatsoever under the Government of Arunachal Pradesh except that he should be designated Secretary
to the Government in charge of Election Department in the State Secretariat.
[No. 154/ARUN/2013-EPS]
By Order,
SUMIT MUKHERJEE, Secy.
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.