Bihar Gazette, 02 July 2009

िनबंधन सं(cid:8)या पी0ट(cid:15)0-40 (cid:18)बहार गजट(cid:18)बहार गजट(cid:18)बहार गजट(cid:18)बहार गजट

असाधारण अंकअसाधारण अंकअसाधारण अंकअसाधारण अंक (cid:18)बहार सरकार (cid:26)ारा ूकािशत(cid:18)बहार सरकार (cid:26)ारा ूकािशत(cid:18)बहार सरकार (cid:26)ारा ूकािशत(cid:18)बहार सरकार (cid:26)ारा ूकािशत 11111111 आषाआषाआषाआषाढ़ढ़ढ़ढ़ 1931 1931 1931 1931 ((((शशशश0000))))

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——— अधिसूचनाअधिसूचनाअधिसूचनाअधिसूचना 22 जून 200922 जून 200922 जून 200922 जून 2009

संख्या-एम-1-003/2009-41—भारत निर्वाचन आयोग की अधिसूचना सं0 82/BR- LC/4/2003/ 2008, दिनांक 1 जनवरी 2009 एवं निर्वाचन अर्जी संख्या 4/2003 में दिनांक 19 सितम्बर 2008 को पारित आदेष को सर्वसाधारण की जानकारी के लिए प्रकाषित किया जाता है।

बिहार-राज्यपाल के आदेष से, सोहन कुमार ठाकुर, सहायक मुख्य निर्वाचन पदाधिकारी, -सह-सरकार के अवर सचिव।2 (cid:18)बहार गजट (असाधारण)] 2 जुलाई 2009

भारत निर्वाचन आयोगभारत निर्वाचन आयोगभारत निर्वाचन आयोगभारत निर्वाचन आयोग

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अधिसूचनाअधिसूचनाअधिसूचनाअधिसूचना

निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001,,,, दिनाकः 1 जनवरी, 2009दिनाकः 1 जनवरी, 2009दिनाकः 1 जनवरी, 2009दिनाकः 1 जनवरी, 2009/11 पौश, 1930 (षक)11 पौश, 1930 (षक)11 पौश, 1930 (षक)11 पौश, 1930 (षक) निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001 निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001 निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001

सं0 82/बिहार-वि0प0/4/2003/2008ः- लोक प्रतिनिधित्व अधिनियम, 1951 (1951 का 43) की धारा-106 के अनुसरण में भारत निर्वाचन आयोग सहरसा-एवं-मधेपुरा-एवं-सुपौल स्थानीय प्राधिकारी निर्वाचन क्षेत्र से बिहार विधान परिशद के लिए 10 जुलाई, 2003 को संपन्न निर्वाचन में श्री बलराम सिंह यादव उर्फ बलराम सिंह के निर्वाचन को प्रष्नगत करते हुए श्री अभय कुमार सिंह द्वारा दाखिल की गई 2003 की निर्वाचन याचिका संख्या 4 में पटना उच्च न्यायालय के दिनांक 19 सितंबर, 2008 के आदेष को एतदद्वारा प्रकाषित करता है।

आदेश से,

आर0 के0 श्रीवास्तव,

सचिव, भारत निर्वाचन आयोग।

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ELECTION COMMISSION OF INDIA

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NOTIFICATION

Nirvachan Sadan, Ashoka Road, New Delhi- Dated : 1st January, 2009/11 Pausa, 1930 (Saka)

No. 82/BR-LC/4/2003/2008:- In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India hereby publishes the order of the High Court of Judicature at Patna dated 19th Septemeber, 2008 in Election Petition No. 4 of 2003 filed by Shri Abhay Kumar Singh calling in question the election of Shri Balram Singh Yadav alias Balram Singh to the Bihar Legislative Council from Saharsa-cum-Madhepura-cum- Supaul Local Authorities Constituency held on 10th July, 2003

By order,

R.K. SRIVASTAVA,

Secretary

ELECTION PETITION No. 4 OF 2003

I n t h e ma t t e r o f an a p p l i c a t i o n u n d e r s e c t i o ns 80 , 8 0 A a nd 8 1 of t he Re p r e s e n t a t i on o f t h e p e o pl e A ct , 1 95 1 A B H A Y K UM A R SI N G H ( Pe t i t i on e r ) V E R S U S B A L RA M S I NG H Y A D AV al i a s B AL A RA M S I NG H ( R e sp o nd e nt ) Fo r Th e Pe t i t i on e r M / s S. N .P. S h ar ma , S r . Ad v o c at e a n d M r . A. K . S i n g h , Ad vo c a t e Fo r t h e Re s po n d e nt M /s . S. B .K M a ng al am a n d P ar a s Na t h Adv o c at e s

- - - - - - - - - PR ES E N T TH E H O N' B L E M R . J US T I C E A J AY K UM AR T RI P A T H I

A.K. Tripathi, J.—The present election petition has been filed by the petitioner calling in question the election of t he returned candidate, namel y Balram Singh Yadav alias Balram Singh as a member of the Bi har Legislative Council from 20-Saharsa- cum-Madhepura-cumSupaul Local Aut hority Election Constituency. The prayer is for declaring the election of the respondent to be illegal and void on the ground of improper rejection of the nomi nation of the petitioner under section 100(1),(c) of the Represent ation of Peopl e Act, 1951.

On 2nd June 2003 based on the communication and the letter issued by the Election Commission of I ndia election for 24 Local Authorities Constituency i n the State of Bihar was announced. The Collector, Saharsa was designat ed as the Returning Officer for Sharsa-cum-Madhepura-cum-Supaul Local Authorities Constituency t o fill up a vacanc y for the Legislative Council from the said Constituency. The election was announced on 2nd June 2003, nomination papers ware to be filed upto 16th June 2003. The date of scr utiny of the nomination papers was fi xed on 24th June 2003 and the date of polling was fi xed on 10th Jul y 2003. The date for final declaration of the result was 14th July 2003.

P etitioner's case is that he had all the eligibility for cont esting the elction aforesaid and decided to file his nomination. Altogether 51 candidates filed their nomination papers including the present petitioner. On 24th June 2003 the nomination papers of all the candidates were serutinized and all the nomination papers were declared to be valid except the nomination of this petitioner. In otherwords, out of 51 candidates the sole rejection of a nomination paper was that of the petitioner.

P etitioner thereafter obtained a certified copy of the order of refection which was furnished to hi m on 26th June 2003 The order in question has been brought on record along with the election petition an annexure-1.

Aft er going through the reasoning and verif ying the facts and on due declarati on of result of the election declaring Balram Singh Yadav as the successful candidate, the petitioner in his wisdom decided to file the present election petition under the Represent ation of Peopl e Act, 1951.

It is necessary to reproduce the reason for rejection of the nomination paper (Ext.2) of petitioner because not only the issues have been formulated for deciding the election petition based on the same but the final adjudication in the present election petition will have to be rendered on the same.

भाग - 4भाग - 4भाग - 4भाग - 4 नाम निर्देषन-पत्र को प्रतिगृहीत या रदद्‌ करने वाले रिटर्निंग ऑफिसर का विनिष्चय नाम निर्देषन-पत्र को प्रतिगृहीत या रदद्‌ करने वाले रिटर्निंग ऑफिसर का विनिष्चय नाम निर्देषन-पत्र को प्रतिगृहीत या रदद्‌ करने वाले रिटर्निंग ऑफिसर का विनिष्चय नाम निर्देषन-पत्र को प्रतिगृहीत या रदद्‌ करने वाले रिटर्निंग ऑफिसर का विनिष्चय मैंने इस नाम निर्देषन-पत्र को लोक प्रतिनिधित्व अधिनियम, 1951 की धारा-36 के अनुसार परीक्षित कर लिया है और मैं निम्नलिखित रूप में विनिष्चय करता हूँ/कि अस्वीकृत करता हूँ क्योंकि 1 जनवरी 2002 की अर्हता के आधार पर मतदाता सूची की अद्यतन सत्यापित प्रति नहीं जमा किया है (निर्धारित अवधि तक) तारीख 24-6-2003

(ह॰)-अस्पष्ट, निर्वाची पदाधिकारी, सहरसा-सह-मधेपुरा-सह-सुपौल स्थानीय प्राधिकार निर्वाचन क्षेत्र, सहरसा।4 (cid:18)बहार गजट (असाधारण)] 2 जुलाई 2009 The above reason for rejection has been ext ract ed from ext. I which is the nomination paper of the petitioner. Four issues therefore came to be framed which are noted below.—

(1) Whether this election petition, as framed is maintainable ? (2) Whether this election petition is vitiated by non-joinder of necessary parties ? (3) Whether the nomination paper of the petitioner was improperly rejected by the Returning officer ?

(4) Whether the petitioner is entitled to any relief or reliefs ?

Of the above four i ssues the primar y issue for consideration is Issue No.3 relating to improper rejection and t he consequential relief in terms of Issue No.4.

Learned Senior counsel appearing on behal f of the petitioner submits that the improper rejection of the nomination paper is a valid ground for setting aside the election in terms of Section 100 (1) ( c ) of the Representation of the People Act 1951 and that is the primary relief which the petitioner is looki ng for. He starts with the definition of the word "Constituency" which is contained in section 2 (b), (c ) and (f ) of the 1950 Act. Reading of the above provisions would show that there are different definitions and territorial boundaries for different "Constituencies". Since the election in the present case was to the Legislative Council under the Local Authority Constituenc y in includes 14 Assembl y Constituencies within what is known as Bihar Legislati ve Council Constituency No.20 of Saharsa-cum-Madhepura-cum-Supaul (hereinaft er referred to as the Constituency).

Submission is now made with regard to the conditions contained in section 33 (5) of Representation of People Act 1951. Section 33 (5) of the Representation of the P eople Act, 1951 is reproduced herein below for ready reference: Section 33(5).— "Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny." According to t he section a candidate is required to furnish certified copy of the electoral roll or the relevant entries of such roll along with his nomination paper if he is an elector of a different constituency. In the present case since the petitioner belongs to the 'constituency" encompassing territorial boundary of the Assembly constituency in question, there was no occasi on or requirement for hi m to furnish or annex a voter list or extract thereof. P etitioner belongs t o the 110, Raghopur Assembly Constituency which forms part and parcel of the constituenc y. If that is the legal requirement then even if the petitioner had not annexed any extr act of the electoral roll for the year, 2002 he did not commit any breach of the statute. If t he extract of 1995 electoral roll was annexed with the nomi nation paper which continued to be a valid electoral roll even for the subsequent years then the reason recorded by t he r eturning officer that the petitioner did not have the required Aharta (qualification) as on 1st January 2002 and non-furnishing of certified copy of the voter list was a mispl aced kind of reasoni ng. Petitioner's cat egorical statement is that there was a deliberate mischief pla yed with his nomination paper and the rejection for the ground indi cated by the Ret urning Officer is not a valid reason in the e ye of law. To buttress his submission he further submits that all the 50 other candidates had furnished extracts of electoral roll for various periods. There were a few of 1995, majority for the year , 1998, two for the year 2000 and 2002 and one candidate furnished nothing with his nomination paper except annexing the photo identify card issued by the Election Commission. Ironically even the returned candidate, Balram Singh Yadav had furnished extract of 1998 voter list with his nomination paper whi ch was found to be valid. This fact is borne out from the perusal of the nomi nation papers and also from a chart furnished by the petitioner which is on record and not disputed b y respondent. With such varied kinds of extracts having been annexed with the nomi nation papers of other candidates, the Returning Officer did not find any fault whatsoever with their nominations but from where he got this illusion that the petitioner alone had to furnish extract of the certified copy of the voter list of 2002 and must have 'Aharta' of 1.12002 seems to be in violation of the provision cont ained in section 33 (5) of the 1951 Act. In otherwords, the rejection of the nomination paper of the petitioner prima facie was not based on any legal or statutor y ground but on a nonest ground and this is good enough for election of the respondent to be set aside.

Submission of learned Senior counsel thereafter is that even f or the sake of argument if the petitioner or any other candidates had not even attached any extract of the vot er list of the constituency in question the Returning Officer was dut y bound to scrutinize the nomination papers based on t he voter list of the constituency in question as per the details of t he entries provided in the nomination paper. If there was omissi on to scrutinize the nomination papers from the electoral roll of the constituency t hen he cannot be made to suff er on the ground of failure of the Returning Officer to perform his statutor y dut y. The next limb of submission of learned Senior Counsel for t he petitioner is that acceptance of nomination paper is more of a rule and rejection is exceptional. The position or this stand is based on a reading of the provision and rulings in this regard on section 36 (5) of the 1951 Act. The nomination paper can be rejected on ver y limited ground. The object of the scrutiny is not to find faults in it but to detect defects of substantial nature or character. In this regard r eliance has been pl aced on a decision of the Hon'ble Supreme Court in the case of Ram Awadhesh Singh Vrs Smt. Sumitra Devi reported in AIR 1972 SC 580. Similar view has also been expressed by the Hon'ble Supreme Court in the case of Viveka Nand Giri vrs. Naw al Kishore Shahi reported in AIR 1984 SC 856. It is contended further that if the Returning Officer had completed the process of scrutiny in accordance with section 33 (4) read with section 33 (5) of the provision of the Representation of the People Act, 1951, there would have been no occasion for rejection of the nomination paper. Learned counsel appearing for the respondent, namel y, Balram Singh Yadav submits that the election petition does not disclose the material fact nor are the pleadi ngs in place in support of the allegation of illegal rejection of the nomination paper. If the material facts are not pleaded t he Court would not get into the nitty-gritty of so called illegal rejection of nomination paper of the petitioner. He further pleads that in terms of section 86 of the Act the election petition in fit to be dismissed for non-compliance of sections 81, 82 and 117 of the Representation of the P eople Act, 1951. Submission has been made as to what constitutes material facts. It is also urged that the petitioner was not a serious candi date because on the date of scrutiny he did not appear before the Returning Officer. A m emo was issued to the petitioner by the Returning Officer which was received by one of his proposers about the date and time of the scrutiny but the same was ignored by him. If the petitioner was careful and vi gilant enough then ma y be the present rejection of his nomination would not have happened. The Court has to examine therefore whether the grounds urged by the respondent agai nst t he maintainability of the election petition and the gr ounds indicated above are cogent or valid. Attention of the Court has been dr awn to the elction petition with emphasis on narration of facts and events where a categorical assertion has been m ade by the petitioner that the rejection or the reason for rejection of the nomination paper of the petitioner was an improper rejection and the r easoning further assi gned is i n conflict with section 33 (5) of the Representation of P eople Act, 1951. Since there was no legal dut y or requirement cast upon the petitioner or any candidates to annex voter list of the constituency, mere declaration with regard to the P art, the Serial Number and the name of the constituency was more than enough. It was incumbent upon the Returning Officer thereafter to verif y from the vot er list of the constituency and then either rej ect or accept the nomination papers. Since the same had not been done and pleadings of the petitioner in this regard and categori cal, therefore, the objection raised on behalf of the respondent that the material facts have not been pl eaded is not correct . Learned counsel for the petitioner has drawn the attention of the Court to the written statement whi ch had been filed b y t he respondent to the el ection petition. In the first written st atement even the r espondent is not ver y sure as to the requirement of annexing extract of the voter list and what was the voter list which was required to be filed. He sums up the position in paragraph-13 of the written statement which is quoted herein below for ready reference as to the stand of the respondent on the issue: "That the statement made in paragraph no.-11 is misleading and misconceived. The petitioner belongs to the another district and he was required to produce the certified copy of the electoral roll as per the notification of the Election Commission."6 (cid:18)बहार गजट (असाधारण)] 2 जुलाई 2009 Subsequently in paragraph-15 of the written statement a stand has been taken that the candidates ware required to fil e extract of the electoral of the year 1998. An additional written statement was subsequently filed on behalf of the respondent. A reading of the same coupled with the cat egorical stand taken in the first written statement onl y muddies the water as to what was required to be filed or not filed or was actually filed along with the nomination paper. P etitioner does not deny that he had filed an extract of 1995 electoral roll and even in the electoral roll of 1998 the Part and Serial Number where the petitioner's name figured was identical. If the Retuning Officer had bothered to turn the pages of 1998 electoral roll at the time of scrutiny then the above declaration of the petitioner in the nomination paper would have stood verified and corroborated. But then the reason for rejection of the nomination of the petitioner is not that the petitioner had not annexed 1998 electoral roll. The reason assi gned is that he did not have the Aharta as on 1st January 2002 and he had not annexed Styapit (certified) extract of the el ectoral roll in the regard. Learned counsel for the petitioner therefore sums up his submission on this issued that the Returning Officer has committ ed error b y illegal rejection of nomination paper of petitioner by im posing a burden upon him which was not required under Representation of People. Act, 1951 or any other provisions in this regard. THE Returning Officer has appli ed vari ed standards in scrutiny of the nomination papers and even the reason assigned by him that the petitioner did not have the Aharta (Qualification) as on 1st January 2002 is not based on any requirement of law. The next submission of the petitioner is to the objection of the respondent that petitioner was not a serious candidate and he did not present himself for scrutiny on the date fixed even when a memo was issued by the Returning Officer which is Mem o No.10 dated 23rd June 2003. The said memo is on record along with the nomination paper which is annexure-1 as well as annexure-A to the written st atement. The Court is surprised to find that much emphasis is being placed on t his m emo b y the respondent but the memo does not disclose anything. It is a blank memo with nothing indicated as to what purpose and object it was issued and even otherwise it was not received by the candidate or his agent but supposedly by one Samrendra Nath Singh, a proposer of the petitioner. The memo therefore is neither here nor ther e. On the submission of the respondent t hat the petitioner was not a serious candidate he submits that since he was a serious candidate therefor e he had been t argeted by getting his nomination paper reject ed, without any valid rhyme or reason available under the law. The Court also decides to have a look at the oral evidences which have been adduced on t his score. Five witnesses were produced on behalf of the petitioner. P.W. 1 is the petitioner himself where he has stated that he was one of the candidates for the "Constituency" of the Local Bod y and was a voter of 110-Raghopur Assembly Constituency. He stated that his nomination papers were illegally rejected. He filed two sets of nomination papers which were dul y signed by hi m and his proposers. In one of the nomination papers a detailed reason for rejection was recorded but in the second nomination paper the word "Aswikrit Karta Hun" (rejected) onl y mentioned. He has furnished the details of his name, the P art and the Seri al Number of 110-Rahgopur Assembly Constituency which is reflected in the voter list of 1998. His name figured at serial no. 444 in Part 11. He also states that a demand of voter list for the year, 2002 was made from hi m orally but there was no voter list of the year available to his knowl edge. He also denied that he had received an y ki nd of memo much less memo no. 10. He does accept that he was personally not present at the time of scrutiny but he had authorized one Sri Prabhakar Singh, Advocate to participate in the same but he was not allowed to go the place of scrutiny. The other witnesses on behalf of the petitioner more or less state similar kind of things and there is nothing glaring pointed out by the respondent which requires to be taken not of. On behalf of t he respondent, 16 witnesses have been examined. The respondent's witnesses in question were either candidates in the said election or proposers of the respondent in question or voters. In the varied statements made in the evidence led by them, majorit y of them have submitted that 1998 vot er list was the current voter list and there is no voter list as such of 2002. It also emerges that most of the candidates had7 (cid:18)बहार गजट (असाधारण)] 2 जुलाई 2009 annexed voter list of the year 1998 and that was the voter list in operation at the relevant tim e. In otherwords there is nothing to support that there was a requirement upon the candidates to annex vot er list of t he year 2002 or there was need for Aharta (qualification) of 1st Januar y 2002. The Returning Officer was also summoned as an official witness who is Mr. R.L. Chongthu. In his evidence in examination-i n-chief he has accepted that he was the Returning Officer by virtue of being the D.M. of Saharsa. 51 candidates had filed their nominations and he remembers r ej ecting one nomination paper as that of the petitioner. But significantly he also accepts in his examination-in-chief theat certified cop y of the electoral roll of the yea r 1998 was the valid document which was required to be filed along with the nomination papers as far as he could remember. But in his cross- examination he accepted that he rejected the nomination paper of the petitioner because he did not annex the voter list of the qualif ying date of 1 s t Januar y, 2002. He did accept that 1998 voter list was the mother roll. In otherwords, the Ret urning Officer coul d not satisfactorily expl ain in his evidence as to why he chose to reject the nomination of the petitioner for a voter list with qualifying date of 1st January 2002 whcn 1998 voter list was the mother roll and the Part and Serial Number furnished by the petitioner was the same as that of 1998 voter list. Though he admits that he had submitted extract of 1995 vot er list which was no different from 1998 voter list. Another significant aspect which emerges is that the Returning Officer states that certified copy of the electoral roll of 1998 was a vali d document which was required to be filed along with the nomination papers of the candidates. Form where does the Returning Officer gets this motion has not been explained either by him or by learned counsel appearing on behalf of the respondent. The Court gets a feeling that the Returning Officer did not even know the basic requirement of law and the provisions including the provisi ons specifically provi ded in section 33 (5) of the Representation of the People Act, 1951. The Court therefore comes to a considered opinion that t here was no cogent or legal reason for rejection of the nomination of the petitioner. The Returning Officer had rejected the nomination paper without any valid reason or breach of law. He has totally failed to expl ain t he considerations which went into the decision making of rej ecting the nomination of the petitioner. He does not seem to be well versed with the requirement of law and rules while scrutinizing nomination papers filed by the candidates in this regard. In totalit y therefore it is declared that the election petition as framed is maintainable and that the rejection of the nomination of the petitioner was an improper rejection under section 100 (1) (c) of the Represent ation of the People Act, 1951. The election petition is in order and petitioner has m ade out a case for interference. Issue No. 1, 3 and 4 are answered i n favour of the petitioner. Issue no. 2 is misplaced. The Court declares the election of respondent no. 1, namely Bal ram Singh Yadav alias Balram Singh for Constituency No. 20 of Local Government of Saharsa-cum- Madhepura-cum-Supaul to be illegal and void and sets asi de his election as such. Let the substance of the decision be communicated to Election Commission and the Chairm an of the Bi har Legislative Council. The election petition is allowed.

AJAY KUMAR TRIPATHI, J. Patna High Court, Patna Dated the 19th September, 2008 NAFR./RPS./Sr. Secy.

IN THE HIGH COURT OF JUDICATURE AT PATNA E.P. No.4 of 2003 ABHAY KUMAR SINGH VERSUS BALRAM SINGH YADAV alias BALRAM YADAV …………

133 24.09.2008—In the Judgment dated 19th September 2008 there is a typographical mistake in the name of the respondent. His alias name is Balram Yadav not Balram Singh.

In that view of the matter let @ name of the respondent be read as Balram Yadav instead of Balram Singh wherever it has been used in the judgment including the cause title of the case.

Ajay Kumar Tripathi, J.

———— अधी/क, सिचवालय मुिणालय,

(cid:18)बहार, पटना (cid:26)ारा ूकािशत एवं मु4ित।

(cid:18)बहार गजट (असाधारण) 308-571+100-ड(cid:15)0ट(cid:15)0पी0।

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