Ramesh Rout Vs. Rabindra
Civil Appeal No. 4956
Civil Appeal No. 4962
R.M. Lodha, J.
returned candidate -- Ramesh Rout - whose election to the 14th Orissa Legislative
Assembly from 89-Athagarh Assembly Constituency has been set aside by the High Court
of Orissa has preferred these two appeals under Section 116A read with Section
116C of the Representation of the People Act, 1951 (for short, `the 1951 Act').
Election Commission of India (for short, `Commission') in order to constitute 14th
Legislative Assembly announced general elections in the State of Orissa to be
held in two phases on April 16, 2009 and April 23, 2009. Following this, the Governor
of the State of Orissa in exercise of powers conferred under Section 5(2) of
the 1951 Act issued a notification which was published in the official gazette on
March 28, 2009. The 89 - Athagarh Assembly constituency is one of the 147 Assembly
constituencies in the State of Orissa and is `General' constituency. The
Commission appointed the following schedule of election :
04.04.2009 = Period prescribed
for filing of "NOMINATIONS"
06.04.2009 = date fixed
for SCRUTINY OF NOMINATIONS.
08.04.2009 = last date
for WITHDRAWAL OF NOMINATIONS
23.04.2009 = date of POLLING.
16.05.2009 = date of
COUNTING OF VOTES.
28.05.2009 = date
before which the Election shall be completed."
April 4, 2009, at 11.25 A.M., the respondent in Civil Appeal No. 4962 of 2010 -
Ranendra Pratap Swain (hereinafter referred to as `proposed candidate') filed four
sets of nomination papers for 89-Athagarh Assembly constituency as a candidate of
2Biju Janata Dal (`BJD') - a registered and recognized political party in the State
of Orissa before the Returning Officer. Seven other candidates including the
present appellant also filed their nomination papers at the said election. The check
list (ticked original) was issued by the Returning Officer with his signature to
the proposed candidate at 11.45 a.m. A copy of the check list (ticked duplicate)
was retained by the Returning Officer.
the appointed date (i.e. April 6, 2009) and time for scrutiny of nominations, the
Returning Officer rejected the nomination papers of the proposed candidate on
the ground that the Form A and Form B filed by the proposed candidate along
with his first set of nomination paper were not duly signed in ink by the authorized
officer of the political party (BJD).
with the order of Returning Officer dated April 6, 2009, rejecting his nomination,
the proposed candidate filed a writ petition before the Orissa High Court.
However, the High Court did not entertain the writ petition and directed him to
pursue his grievance before the Commission or seek appropriate relief after
election process was over. The proposed candidate raised his grievance before
the Commission but without any success.
election to the 89-Athagarh Assembly constituency was held as per election
schedule and the appellant who contested the election as an independent
candidate was declared elected.
election petitions came to be filed before the Orissa High Court challenging
the election of the appellant to 89-Athagarh Assembly Constituency.
One by the proposed candidate
being Election Petition no. 4 of 2009 and the other by the proposer - respondent
in Civil Appeal No. 4956 of 2010 being Election Petition no. 6 of 2009. In both
election petitions, the election of the appellant was challenged on the ground of
improper rejection of nomination papers of the proposed candidate.
It was averred therein
that the proposed candidate had filed Form A and Form B signed in ink by the authorized
person along with first set of nomination paper showing that he had been duly
sponsored by the BJD to contest as a party nominee from 89-Athagarh Assembly
constituency and with other three sets of nomination, he had filed xerox copies
of original Forms A and B duly authenticated by a Notary Public. The election petitioners
raised diverse grounds in challenging the order of the Returning Officer dated April
6, 2009 whereby the nomination papers of the proposed candidate were rejected.
appellant -- (respondent therein) - contested the election petitions by filing separate
written statement. He raised objections about the maintainability of election
petitions on facts and in law. Inter alia, it was denied that the proposed candidate
filed original Form-A and Form-B signed in ink by the authorized person of BJD
as at the time of scrutiny original Form A and Form B were not available and
the Form A and Form B on record did not contain ink signature.
the respective pleadings of the parties, the High Court initially framed four
issues but later on framed additional issue no. 5. The relevant two issues,
namely, issue no. 3 and issue no. 5 read as follows : "3. Whether the
Returning Officer improperly rejected the nomination of the Election Petitioner
in violation of the statutory provisions and rules? 5. Whether the Returning
Officer improperly rejected the nomination of Sri Ranendra Pratap Swain, the official
candidate of Biju Janata Dal in violation of the instructions issued by the
Election Commission of India in exercise of its constitutional powers and the
principles of natural justice or not?"
election petitioners as well as the returned candidate tendered oral and
documentary evidence. On behalf of the election petitioners, three witnesses,
namely, proposer - Rabindra Nath Rout 5(PW-1); proposed candidate - Ranendra Pratap
Swain (PW-2) and authorised agent - Tarani Kanta Biswal (PW-3) were examined. On
the other hand, the returned candidate examined himself as RW-1 and one Magnicharan
Rout as (RW-2). The Returning Officer was examined by the Court as its witness (CW-1).
The documents tendered in evidence were marked separate exhibits.
High Court also called for all the original documents pertaining to the scrutiny
of nomination papers for 89-Athagarh Constituency and 87-Badamba Constituency. We
shall refer to relevant documentary evidence appropriately wherever necessary.
High Court on hearing the parties, at the time of decision in the election petitions,
framed an additional issue no. 6 namely, whether the election petitioner
(proposed candidate) filed the original Form A and Form B duly signed in ink by
the authorized person with the first set of his nomination paper.
The High Court
answered issue nos. 3, 5 and 6 in the affirmative and allowed both election
petitions on June 23, 2010 and declared the election of the appellant null and void.
The High Court declared that a casual vacancy is created relating to 89-Athagarh
Assembly Constituency and the Commission was directed to conduct fresh election
in respect of the said constituency in accordance with law.
is from this judgment that these two appeals have arisen.
have heard Mr. Gopal Subramanian, learned senior counsel for the appellant and Mr.
K.K. Venugopal, learned senior counsel for the proposed candidate.
Returning Officer plays an important role in the election management and to
ensure that there is no scope left for any complaint, the Commission has issued
a handbook for Returning Officers (for short, `the handbook')
The handbook, as it
states, has been designed to give to the Returning Officers the information and
guidance which they may need in performance of their functions; to acquaint them
with up-to-date rules and procedures prescribed for the conduct of elections and
to ensure that there is no scope for complaint of partiality on the part of any
official involved in the election management. We shall refer to the relevant
provisions of the handbook a little later. The handbook does not have statutory
character and is in the nature of guidance to the Returning Officers.
virtue of a notification dated February 10, 2009 (Exhibit 10) issued by the
Commission, for the first time, the issuance of check list to a candidate filing
nomination paper has been introduced. Prior thereto, there was no such
provision. It is provided that in respect of each candidate, the Returning Officer
should maintain, in duplicate, the check list of the documents/requirements
filed by the candidates.
When a candidate
files nomination paper, the Returning Officer shall indicate in the second
column of the check list whether the concerned documents have been filed or other
requirements fulfilled. If any of the documents has not been filed, it requires
the Returning Officer to clearly state in the bottom of the check list,
indicating the time limit by which such document/s can be submitted. The check
list in two sets with all requirements indicated is needed to be signed by the Returning
Officer as well as the candidate.
The check list (marked
original) is handed over to the candidate/proposer who files nomination paper, while
check list (marked copy) is retained by the Returning Officer. The notification
states that the copy of the check list will serve the dual purpose of acknowledging
the receipt of the documents submitted as well as of notices as directed in the
It is further provided
that no separate notice is required to be given to the candidate in respect of the
items mentioned in the check list. If and when a document is filed subsequent
to filing of nomination, an acknowledgment to that effect is issued to the
candidates, namely, mentioning the date and time at which it is filed and this is
also indicated in the appropriate place in 8the check list retained by the
Returning Officer. The proforma of the check list has also been notified with
the notification dated February 10, 2009.
33 of the 1951 Act makes provision for presentation of nomination paper and requirements
for a valid nomination. To the extent it is relevant for the purposes of the present
case, it is reproduced as follows : "S. 33. Presentation of nomination
paper and requirements for a valid nomination.-
(1) On or before the date
appointed under clause (a) of section 30 each candidate shall, either in person
or by his proposer, between the hours of eleven o' clock in the forenoon and
three o' clock in the afternoon deliver to the returning officer at the place specified
in this behalf in the notice issued under section 31 a nomination paper completed
in the prescribed form and signed by the candidate and by an elector of the constituency
as proposer: xxx xxx xxx
(4) On the presentation
of a nomination paper, the returning officer shall satisfy himself that the names
and electoral roll numbers of the candidate and his proposer as entered in the nomination
paper are the same as those entered in the electoral rolls:
Provided that no misnomer
or inaccurate description or clerical, technical or printing error in regard to
the name of the candidate or his proposer or any other person, or in regard to
any place, mentioned in the electoral roll or the nomination paper and no
clerical, technical or printing error in regard to the electoral roll numbers
of any such person in the electoral roll or the nomination paper, shall affect
the full operation of the electoral roll or the nomination paper with respect
to such person or place in any case where the 9 description in regard to the
name of the person or place is such as to be commonly understood; and the returning
officer shall permit any such misnomer or inaccurate description or clerical, technical
or printing error to be corrected and where necessary, direct that any such misnomer,
inaccurate description, clerical, technical or printing error in the electoral
roll or in the nomination paper shall be overlooked. xxx xxx xxx"
35 provides for notice of nominations and the time and place for their
provision concerning scrutiny of nomination is made in Section 36 of the 1951
Act. To the extent it is relevant, it reads as follows : "S. 36. Scrutiny of
(1) On the date fixed
for the scrutiny of nominations under section 30, the candidates, their election
agents, one proposer of each candidate, and one other person duly authorized in
writing by each candidate but no other person, may attend at such time and place
as the returning officer may appoint; and the returning officer shall give them
all reasonable facilities for examining the nomination papers of all candidates
which have been delivered within the time and in the manner laid down in
(2) The returning officer
shall then examine the nomination papers and shall decide all objections which may
be made to any nomination and may, either on such objection or on his own motion,
after such summary inquiry, if any, as he thinks necessary, reject any nomination
on any of the following grounds:- (a) xxx xxx xxx (b) that there has been a
failure to comply with any of the provisions of section 33 or section 34; or 10
(c) that the signature of the candidate or the proposer on the nomination paper
is not genuine. xxx xxx xxx
(4) The returning officer
shall not reject any nomination paper on the ground of any defect which is not of
a substantial character.
(5) The returning officer
shall hold the scrutiny on the date appointed in this behalf under clause (b)
of section 30 and shall not allow any adjournment of the proceedings except
when such proceedings are interrupted or obstructed by riot or open violence or
by causes beyond his control: Provided 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 it not later than the next day but one following the date
fixed for scrutiny, and the returning officer shall record his decision on the
date to which the proceedings have been adjourned. xxx xxx xxx"
Conduct of Elections Rules, 1961 (for short, `1961 Rules') have been framed
under the 1951 Act. Rule 4 provides that every nomination paper presented under
sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to
2E as may be appropriate. Proviso that follows Rule 4 makes a provision that a failure
to complete or defect in completing, the declaration as to symbols in a
nomination paper in Form 2A or Form 2B shall not be 11deemed to be a defect of
substantial character within the meaning of sub-section (4) of Section 36.
2B under Rule 4 is in three parts. Part-I is to be used by a candidate set up
by a recognised political party. Part-II is required to be filled by a candidate
for election to the legislative assembly not set up by a recognised political party
and it provides that there should be ten electors of the constituency as proposers.
Part-III of Form 2B is a declaration to be made by the candidate giving assent to
Clause (b)(i) is applicable
to a candidate who has been set up by a recognised political party with a request
that symbol reserved for such party be allotted to him. Clause (b)(ii), on the
other hand is applicable to a candidate not set up by any registered recognised
political party or a candidate who is contesting the election as an independent
candidate. A recognised political party means a political party recognised by
the Commission under the 1968 Order.
5 of the 1961 Rules makes a provision for symbols for elections in
parliamentary and assembly constituencies. Rule 10 of 1961 Rules provides for preparation
of list of contesting candidates.
exercise of the powers conferred by Article 324 of the Constitution of India
read with Section 29A of the 1951 Act and Rules 5 and 10 of the 1961 Rules, the
Commission made Election Symbols (Reservation and Allotment) Order, 1968 (for short
`1968 Order'). Unregistered political parties are out of its purview.
recognized and unrecognized political parties and independent candidates are
dealt with by the 1968 Order. 1968 Order came to be amended by notification no.
56/2000/Judl. III dated 1st December, 2000. Para 13 of the 1968 Order is
relevant for consideration of the present matter.
It reads as follows :
"13. When a candidate shall be deemed to be set up by a political party.--For
the purposes of an election form any Parliamentary or Assembly Constituency to which
this Order applies, a candidate shall be deemed to be set up by a political party
in any such Parliamentary or Assembly Constituency, if, and only if-
(a) the candidate has
made the prescribed declaration to this effect in his nomination paper, (aa)
the candidate is a member of that political party and his name is borne on the rolls
of members of the party;
(b) a notice by the
political party in writing in Form B, to that effect has, not later than 3.p.m.
on the last date for making nominations, been delivered to the Returning
Officer of the constituency;
(c) the said notice
in Form B is signed by the President, the Secretary or any other office-bearer
of the party, and the President, Secretary or such other office bearer sending
the notice has been authorised by the party to send such notice;
(d) the name and
specimen signature of such authorised person are communicated by the party, in
Form A, to the Returning Officer of the constituency and to the Chief Election Officer
of the State or Union Territory concerned, not later than 3 p.m. on the last
date for making nominations; and
(e) Forms A and B are
signed, in ink only, by the said office-bearer or person authorised by the
party: Provided that no fascimile signature or signature by means of rubber
stamp, etc. of any such office bearer or authorised person shall be accepted and
no form transmitted by fax shall be accepted."
VI of the handbook deals with the scrutiny of nominations by the Returning Officer.
Para 2 emphasises that scrutiny of nomination papers is an important quasi-judicial
function and the Returning Officer has to discharge this duty with complete
judicial detachment and in accordance with the highest judicial standards. Para
6 provides that even if no objection has been raised to a nomination paper, the
Returning Officer has to satisfy himself that the nomination paper is valid in
If any objection is
raised to any nomination paper, the Returning Officer has to hold a summary
inquiry to decide the same and treat the nomination paper to be either valid or
invalid. It states that brief reasons in support of the decision must be set
out, particularly, where an objection has been raised or the nomination paper has
been rejected. Para provides for presumption of validity of every nomination
paper unless the contrary 14is 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. Para 7 seeks to remind the Returning Officer that whenever a candidate's
nomination paper is improperly rejected and he is prevented from contesting the
election, there is a legal presumption that the result of the election has been
materially affected by such improper rejection and the election is liable to be
Para 9.6 sets out
some of the defects which may be treated by the Returning Officer as defects of
substantial nature. It, inter alia, provides that failure to submit written authorisation
form from the political party, within prescribed time and in prescribed form,
where a candidate claims to have been set up by a national or state party, is a
defect of substantial nature.
Para 10.3 says that
the nomination paper filed by a candidate claiming to have been set up by a recognised
national/state party subscribed by only an elector as proposer is liable to be rejected,
if a notice in writing to that effect has not been delivered to the Returning Officer
of the Constituency by an authorised office-bearer of that political party by 3
p.m. on the last date for making nominations in Forms A and B devised by the Commission
for the purpose under para 13 of the 1968 Order.
light of the above provisions, particularly Sections 33(1) and 36(1) of the
1951 Act, Rule 4 of the 1961 Rules, Part-III of Form 2B, para 13(e) of the 1968
Order and Forms A and B appended to 1968 Order and the guidelines issued to the
Returning Officers in the handbook, Mr. Gopal Subramanian, learned senior counsel
for the appellant submitted that where a candidate for the election to Assembly
has been set up by a recognised political party, the filing of original Forms A
and B duly signed in ink by an authorised person of such political party is non-negotiable
and non-filing of original Forms A and B signed in ink constitutes a defect of substantial
counsel argued that proviso to Rule 4 carves out an exception in respect of
declaration in relation to symbol by candidates of unrecognised political party
and independent candidates as per clause (b)(ii) of Part-III of Form 2-B and has
no application to the case of a candidate belonging to a recognised political
party who has to make a declaration as required by clause(b)(i) thereof.
According to Mr.
Gopal Subramanian, the proviso appended to Rule 4 and para 13 of the 1968 Order
operate in completely different fields without any overlap or conflict. He
vehemently contended that the present case squarely falls under Section 36(2)(b)
of the 1951 Act for failure to comply with the requirement of nomination paper completed
in 16prescribed form.
He would argue that the
nomination having been subscribed by one proposer, basing on the declaration
given by the election petitioner, it is intrinsic mandatory requirement of the 1968
Order that ink signed Forms A and B were filed prior to 3 P.M. on the last date
of making nomination so as to sustain the declaration of the candidate having
been set up by a recognised political party.
the other hand, Mr. K.K. Venugopal, learned senior counsel for the proposed
candidate contended that Section 36(4) of the 1951 Act read with proviso to
Rule 4 of the 1961 Rules and Form 2 B (Part III) would make the filing of xerox
copy of Form A and Form B permissible (assuming that xerox copy of Form A and
Form B were filed only) and cannot form the basis of the rejection of the
He submitted that failure
to file original Form A and Form B signed in ink was not defect of a substantial
character within the meaning of Section 36(4) of the 1951 Act. According to him,
para 13(e) of the 1968 Order that states "Forms A and B are signed, in ink
only, by the said office bearer or person authorised by the party" is only
an expression of hope and is not mandatory as it does not use the expression `shall
He referred to a decision
of this Court in the case of Jagan Nath v. Jaswant Singh & Ors.1 in support
of his submission that the election law is technical and unless 1 1954 SCR 892 express
provision is found, one cannot read the word "are" as
"shall". With reference to Section 33(1) of the 1951 Act, Mr.
Venugopal would submit that the expression "a nomination paper completed in
the prescribed form and signed by the candidate and by an elector of the constituency
as proposer" did not require the nomination paper to be accompanied by specified
documents. Rule 4 of the 1961 Rules deals with the nomination paper while para 13
of the 1968 Order deals with the political party's authorisation. The two are separate
and distinct and para 13 of 1968 Order cannot be read into Rule 4 of the 1961
K.K. Venugopal, learned senior counsel submitted that neither Section 33 nor
Section 34 of the 1951 Act required that the nomination should be accompanied by
the sponsorship or authorisation of a political party. Section 36(2) of the 1951
Act sets out the grounds on which nomination paper can be rejected. Neither
clause (a) which deals with qualifications and disqualifications nor clause (b)
that deals with failure to comply with Section 33 nor Section 34 or clause (c)
which deals with signature of the candidate or his proposer is relevant to the
the above contentions, the question presented for our consideration is, whether
it is mandatory for a candidate set up by a 18recognised political party to file
original ink signed Forms A and B appended to para 13 of the 1968 Order.
we consider the above question, it is important to recapitulate the general rule
relating to election law stated by the Constitution Bench of this Court in the case
of Jagan Nath1. This Court (at page 895) stated : "The general rule is well
settled that the statutory requirements of election law must be strictly
observed and that an election contest is not an action at law or a suit in equity
but is a purely statutory proceeding unknown to the common law and that the
court possesses no common law power.
It is also well
settled that it is a sound principle of natural justice that the success of a candidate
who has won at an election should not be lightly interfered with and any
petition seeking such interference must strictly conform to the requirements of
the law. None of these propositions, however, have any application if the special
law itself confers authority on a tribunal to proceed with a petition in accordance
with certain procedure and when it does not state the consequences of non-compliance
with certain procedural requirements laid down by it.
It is always to be borne
in mind that though the election of a successful candidate is not to be lightly
interfered with, one of the essentials of that law is also to safeguard the
purity of the election process and also to see that people do not get elected by
flagrant breaches of that law or by corrupt practices. In cases where the election
law does not prescribe the consequence or does not lay down penalty for
non-compliance with certain procedural requirements of that law, the jurisdiction
of the tribunal entrusted with the trial of the case is not affected."
33 of the 1951 Act enacts that a candidate shall file nomination paper on or before
the appointed date in the 19prescribed form. The form in which nomination paper
shall be presented and completed is provided in Rule 4 of the 1961 Rules.
According to Rule 4, every nomination paper presented under sub-section (1) of
Section 33 shall be completed in such one of the forms 2-A to 2-E, as may be appropriate.
Proviso that follows Rule 4 provides that a failure to complete or defect in completing,
the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B
shall not be deemed to be a defect of substantial character within the meaning of
Section 36(4) of 1951 Act.
The controversy in the
present case relates to a candidate set up by a recognised political party of the
State and, therefore, the relevant form in this regard is Form 2-B. Form 2-B is
in three parts. Part-II is not relevant and, therefore, it is not necessary to refer
to that. Part-I and Part-III of Form 2-B are relevant. Part-I of Form 2-B is
required to be completed by a candidate set up by a recognised political party.
Part-III of Form 2-B is a declaration to be made by the candidate giving assent
to his nomination.
The candidate is required
to declare, in case of a candidate set up by a recognised State party in terms of
para b(i), "that I am set up at this election by the .........party, which
is recognised national party/state party in this State and that the symbol reserved
for the above party be allotted to me". Para b (ii) of Part-III is 20applicable
to a candidate set up by any registered unrecognised political party or a candidate
who is contesting the election as an independent candidate.
A plain reading of
proviso that follows Rule 4 leaves no manner of doubt that a failure to complete
or defect in completing, the declaration as to symbols in a nomination paper in
Form 2A or Form 2B by a candidate set up by a recognised political party or a
candidate set up by registered unrecognised political party or a candidate who
seeks to contest the election as an independent candidate is not a defect of substantial
nature. It is not possible to catalogue defects contemplated by the proviso.
illustrate the few; wrong description of symbol, omission to fill blank space given
in proforma in respect of choice of symbols, selecting a symbol which is reserved,
etc., fall in the category of defects not of a substantial character. We are
fortified in our view by a decision of this Court in Krishna Mohini (Ms) v. Mohinder
Nath Sofat2 wherein this Court said in para 32 (Pg. 159) :
"32. Though Rule
4 of the Conduct of Elections Rules requires every nomination paper presented under
sub- section (1) of Section 33 to be complete in such one of the Forms 2-A to
2-E as may be appropriate and, therefore, the blank space meant for showing three
symbols in order of preference as symbols of the candidate's choice, has to be filled
in; however, non-filling of the space as to choice of symbol is not a defect of
a substantial character.
Such deficiency in
the nomination paper is saved by the proviso to Rule 4 of the Conduct of Elections
Rules, 1961 which 2 (2000) 1 SCC 145 21 provides that failure to complete or
defect in completing the declaration as to symbols in a nomination paper shall
not be deemed to be a defect of a substantial character within the meaning of
sub-section (4) of Section 36. Choosing a wrong symbol, leaving blank the space
meant for filling the choice of symbols and an error in describing the symbol
-- are all defects not of a substantial character.
candidate may mention as his preference the symbol reserved for a recognised political
party, but that again will not be a defect of a substantial character. Dealing
with such cases, this Court has held in K.S. Abdul Azeez v. Ramanathan Chettiar
(AIR 1967 SC 85) that the question of symbols should not play an important part
because symbols can be assigned by political parties till the date for
withdrawal and nomination paper should not be cancelled, on this ground, during
applicability of proviso that follows Rule 4, however, is limited to defect in the
declaration as to symbol made by a candidate in Form 2-A or 2-B appended to
1961 Rules. Its operation does not extend to the defects in forms required to be
filled or completed by a candidate set up by a recognised political party under
1968 Order or non-fulfilment of requirements set out in clauses (a) to (e) of
para 13 of the 1968 Order.
Order has been made by the Commission to provide for specification, reservation,
choice and allotment of symbols of elections in Parliamentary and Assembly Constituencies
for the registered political parties (recognised or unrecognised) and the
independent candidates. Para 13 provides in unmistakable terms that for a
candidate to be considered to have been set up by a political party in a
parliamentary or assembly constituency, he has to comply with the conditions
set out in clauses (a) to (e) thereof.
In Krishna Mohini
(Ms)2, this Court held that in order to be a candidate set up by a registered
and recognised political party so as to take advantage of being proposed by a
single elector, all the four requirements set out in clauses (a), (b), (c) and (d)
of para 13 of 1968 Order must be satisfied. The Court went on to say that if any
one or more of the requirements are not satisfied, the benefit of nomination being
proposed by a single elector is not available to him. Clause (e) of para 13 of the
1968 Order is equally important.
It reads, "Forms
A and B are signed, in ink only, by the said office-bearer or person authorised
by the party". Proviso appended to para 13 makes a provision that no
facsimile signature or signature by means of rubber stamp, etc. of any such office-bearer
or authorised person shall be accepted and no form transmitted by fax shall be
In other words, for a
candidate, proposed by a single elector alone, to be treated as a candidate set
up by a recognised political party, the filing of notice and communication in
Forms A and B referable to clauses (b), (c) and (d) and in accord with clause
(e) of para 13 of the 1968 Order is essential and on its non-compliance, the
nomination of such candidate is liable to be rejected.
clause (e) of para 13, 1968 Order does not use the expression "shall be
signed" is obvious from the bare reading of the provision but the significance
of the word "only" therein cannot be ignored.
Concise Oxford English Dictionary (Tenth Edition, Revised), the word `only' is
explained : Only adv. 1 and no one or nothing more besides.. . . . . . adj. alone
of its or their kind; single or solitary. . . . . . . .
Webster Comprehensive Dictionary, International Edition (Volume Two), the word
`only' is defined thus : Only (n'l) adv. . . . . . . . 2 In one manner or for one
purpose alone. . . . . . 4 Solely; merely; exclusively: limiting a statement to
a single defined person, thing, or number. - adj. 1 Alone in its class; having no
fellow or mate; sole; single; solitary:
word `only' is ordinarily used as an exclusionary term. In the American case of
Henry R. Towne v. Mark Eisner (245 US 418 at 425), the court said, "A word
is not a crystal, transparent and unchanged; it is the skin of a living thought
and may vary greatly in colour and content according to the circumstances and the
time in which it is used".
In ascertaining the
meaning of the word `only', its placement is material and so also the context
in which the word has been used. The use of the word `only' in clause (e), para
13, 1968 24Order emphasises that Forms A and B are to be signed in ink by the office
bearer or person authorised by the recognised party and in no other way. Thus,
it excludes any other mode of filing Forms A and B when a candidate is set up by
a recognised political party. In our view, therefore, the word `only' used in clause
(e) of para 13 is indicative of the mandatory character of that provision.
a candidate is set up by a recognised political party, clause (b)(i), Part-III of
Form 2-B becomes relevant as by making declaration therein the candidate makes a
request that symbol reserved for such party be allotted to him. It is for this
reason that the requirements of para 13 of the 1968
Order become integral
part of Form 2-B, Part-III under Rule 4 of the 1961 Rules where a candidate is
set up by a recognised political party. We are unable to accept the submission of
Mr. K.K. Venugopal that para 13 of the 1968 Order cannot be read into Rule 4. Non-compliance
of requirements of para 13 of the 1968
Order, in our view,
is a defect of substantial character and the nomination paper of a candidate
proposed by a single elector set up by a recognised political party having such
defect is liable to be rejected under Section 36(2)(b) as it tantamounts to non-compliance
of the provisions of Section 33, namely, the nomination paper having not been completed
in the prescribed form.
proposed candidate admittedly filed his nomination paper proposed by a single elector
having been set up by BJD, a recognised political party in the State of Orissa,
and, therefore, it was incumbent upon him that the requirements of para 13 of the
1968 Order were fully complied with. In other words, it was necessary for the
proposed candidate that Forms A and B referable to clauses (b), (c) and (d) of
para 13, 1968 Order were submitted to the Returning Officer duly signed in ink
by the authorised person of BJD not later than 3.00 p.m. on April 4, 2009.
held so, the other questions that need to be considered by us in these appeals
are, whether the High Court erred in framing issue no. 6 at the time of
decision in the election petitions, i.e., whether the election petitioner
Ranendra Pratap Swain filed the original Form-A and Form-B being duly signed in
ink by the authorised person with the first set of his nomination and whether
the finding recorded by the High Court on that issue suffers from any
pleadings of the parties as well as the evidence let in by them clearly show
that the parties were seriously in issue whether the original Form-A and Form-B
duly signed in ink by the authorised person of BJD were filed by the proposed
candidate with the first set of his nomination paper.
The election petitioners
(in both election petitions) asserted that the proposed candidate had filed original
Forms A and B duly signed in ink by Shri Navin Patnaik (authorised person of
BJD) before the Returning Officer on April 4, 2009 at the time of presentation of
nomination paper and check list was issued acknowledging receipt of these forms.
The returned candidate
disputed the said assertion made in the election petitions. The evidence of the
Returning Officer, who was examined as court witness no. 1, and his
cross-examination on behalf of the proposed candidate as well as the returned candidate
also indicate that the factual controversy in the election petitions centered around
on the filing of the original Form-A and Form-B duly signed in ink by the
authorised person of BJD with the first set of his nomination. It follows that
by framing issue no. 6 at the time of final decision of the election petitions,
no prejudice has been caused to the returned candidate.
As a matter of fact, no
ground of prejudice has been raised in the appeals nor such argument was advanced
before us by the learned senior counsel for the returned candidate. We,
accordingly, hold that the High Court did not commit any error in framing issue
no. 6 which 27was quite vital and material for decision in the election
petitions. We further hold that no prejudice has been caused to the returned candidate
by framing such additional issue at the time of the decision in the election
proposed candidate PW-2 deposed that he had contested Orissa Assembly Elections
held in 1990, 1995, 2000 and 2004 from 89-Athagarh Constituency and had won all
these four elections. While giving the details of nomination papers and the
documents presented personally by him on April 4, 2009 at 11.25 a.m., he stated
that in the first set of nomination, Rabindra Nath Rout (PW-1) was the proposer
and along with the first set of nomination paper, original Form-A and Form-B signed
in ink by Shri Naveen Patanaik, President and the authorised signatory of BJD were
filed. He deposed that he had presented four sets of nominations as the nominee
of BJD for 89-Athagarh Assembly Constituency and all his four sets of nominations
were complete in all respect.
He also deposed that immediately
after he presented four sets of nominations, as a nominee of BJD, the Returning
Officer asked him to take oath before him and he, accordingly, took oath before
the Returning Officer. From 11.25 a.m. to 11.45 a.m., the Returning Officer
examined the four sets of nominations presented by him and thereafter the
Returning Officer personally prepared the check list of documents; put his signature
on that and asked him (proposed candidate) to sign on the said documents. The Returning
Officer retained with him one of such check list ticked duplicate (Ex. 22) and
handed over another to him (proposed candidate) ticked original (Ex. 11).
deposition of the proposer--Rabindra Nath Rout (PW-1) is not of much help as he
has stated that he was not present in the office room of the Returning Officer when
the proposed candidate filed his nomination.
the Returning Officer (CW-1) in his deposition has not specifically denied that
Form-A and Form-B in original duly signed in ink by the authorised officer of
BJD were not filed by the proposed candidate. Rather he stated that had it come
to his notice that Form-A and Form-B duly signed in ink by the authorised signatory
were not filed by the proposed candidate, he would have made an endorsement on
the bottom of the check list to that effect and asked the proposed candidate to
file the original ink signed forms within time.
He admitted that no
such endorsement was made in the check list. The Returning Officer also stated in
his deposition that the nomination papers filed by the proposed candidate 29were
examined by him only from technical stand point and it was not his duty to examine
the correctness or validity of the documents at the time of filing of the same.
there is voluminous documentary evidence, in our view, the three documents viz;
the check list (Ex. 11), Form 3-A (Ex. 42/F) and the consolidated list of
nominated candidates (Ex. 44) are important. The check list marked `original' (Ex.
11) given to the proposed candidate is as follows :
filed (write yes/no)
as per the Commission's order dated 27.03.03
extract of electoral roll (when Not candidate is an elector of a different needed
A and B (applicable in the case of candidates set up by political parties)
caste certificate (if the Not needed candidate claims to belong to SC/ST)
deposit (whether made)
documents which have not been filed should be filed as indicated below :
be filed latest by __________.
be filed latest by __________.
(Signature of candidate)
Date & time : 04.04.2009
-- 11.45 a.m.
of nominated candidates--Checks If (Ex.44) to the extent it is relevant is as
follows : Name of Parliamentary/Assembly Constituency -89 AthagarhNo Name of
the Address of Symbols Name of political Whether Forms Whether . candidate candidate
chosen in Party `A' and `B' have main Order of (National/State or been received
candidate or preference registered) by by 3.00 p.m. on substitute by the which the
the last date for candidate of candidate. candidate claims making the party (as
to have been set nominations in per Party's up/independent respect of the intimation
candidate candidate in Form B)1 2 3 4 5 6 71 Ranendra At- Cunch Biju Janata Yes
Main Pratap Radhago Dal Candidate Swain vindapur P.O.- Dhaipur, P.S. Athagarh Dist.-
April 4, 2009, the Returning Officer published a notice in Form 3A on the notice
board of his office in respect of the nomination papers presented before him on
that day. In that notice - Form 3A (Ex. 42/F), it was mentioned in column no. 6
that proposed candidate was nominee of BJD. Pertinently, April 4, 2009 was the
last day of nominations. Form 3A was displayed on the notice board after 3 p.m.
Had the proposed candidate not filed Forms A and B as required, i.e., duly
signed in ink by an authorised person of BJD, he would not have been shown as a
nominee of that party in Form 3A.
behalf of the returned candidate it was contended before the High Court and reiterated
before us that none of these documents indicate that Forms A and B were filed
in original. It was submitted that these documents only indicate that Forms A and
B were filed as endorsed in the check list and were received before 3.00 p.m. on
the last date of making nominations but these documents do not prove that
original Forms A and B signed in ink by the authorised signatory of the party
is true that neither in the check list nor in the list of nominated candidates,
the word `original' before Forms A and B is mentioned but it was not required
to be mentioned as in the case of candidates set up by political parties; the requirement
is that such candidates file Form A and Form B duly signed in ink by the
authorised officer of the concerned political party.
In the event of
filing of Form A and Form B otherwise, an endorsement would obviously be made against
that column in the check list and time would be given to make up the deficiency
by 3.00 p.m. on the last day of nomination. In the circumstances, having regard
to the significance of the check list, if Forms A and B were not filed in original
by the proposed candidate, an endorsement would have been made by the Returning
Officer that only xerox copies of Forms A and B were filed.
No doubt under
Section 33(4) of the 1951 Act, the Returning Officer is not expected to make a
detailed scrutiny of the nomination paper presented before him but in the case
of a candidate who has filed his nomination paper as a candidate set up by a recognised
political party and in view of para 13 of the 1968 Order, the Returning Officer
would surely check whether Form A and Form B suffer from any defect.
a matter of fact, to obviate unnecessary dispute about presentation of
nomination paper by a candidate, the Commission in the handbook has provided for
guidelines pertaining to check list. Accordingly, a check list is required to
be prepared duly certified by the Returning Officer that all documents have been
received. Such check list is signed by the Returning Officer as well as by the candidate.
Where a check list certifies that Forms A and B (in the case of candidates set up
by a recognised political parties), have been filed, such certificate leads to
presumption that the procedural requirement of filing the documents as
prescribed in para 13 of the 1968 Order has been complied with.
The presumption is of
course rebuttable but there must be sufficient evidence by the other side to
displace such presumption. In the present case, the check list (Ex.11), Form 3A
(Ex. 42/F) and the list of the nominated candidates--checks IF (Ex. 44) give rise
to presumption in favour of the proposed candidate that he had filed Form-A and
Form-B duly signed in ink by the authorised person of BJD with the first set of
his nomination paper. The question is whether this presumption has been rebutted
by the returned candidate? We do not think so.
The oral evidence of
the returned candidate (RW-1) and his witness (RW-2) is not of much help insofar
as this aspect is concerned. The Returning Officer has not stated firmly and with
certainty in his evidence that the proposed candidate had not filed Form-A and
Form-B signed in ink by the authorised person of the BJD. Rather he stated that
had it come to his notice that the original Form-A and Form-B duly signed in ink
were not filed along with the nomination paper by the proposed candidate, he would
have made an endorsement to that effect in the check list.
11.46 a.m. when the check list was prepared by the Returning Officer and given to
the candidate and 3.00 p.m. on April 4, 2009 (last date of nominations) no intimation
was issued by the Returning Officer or received by the candidate with regard to
non-filing of original Forms A and B. No doubt, the burden is on the candidate set
up by a recognised political party to prove that he had filed Forms A and B
duly signed in ink by the authorised person of that party but that burden gets discharged
on production of evidence that raises presumption in his favour. In the present
case the proposed candidate has been successful in discharging the burden placed
evidence of the Returning Officer is the important part of the case. He
admitted in his evidence that the xerox copies of the nomination papers and
documents were got prepared through his officials for the purpose of displaying
on the notice board. He also admitted that since proposed candidate had filed all
documents required in the nomination form, no further endorsement was made in
the check list that he (proposed candidate) was required to file any documents.
Moreover, with regard
to another candidate, Janaki Rout in respect of 89-Athagarh Assembly Constituency,
the Returning Officer stated that he asked him to file the document which he
had not filed along with the nomination paper by 3.00 p.m. at the latest. In
respect of yet another candidate Bijaya Kumar Biswal, in the check list, he had
endorsed therein that the certified extract of the electoral roll was not filed
and asked him to file the same at 11.00 a.m. on April 6, 2009 at the latest. It
is, thus, seen that the Returning Officer was conscious of his duties as per the
statutory provisions and the guidelines issued by the Commission by way of handbook.
On presentation of
nomination papers by respective candidates wherever deficiencies were found, he
made endorsement in the check list and gave them time to make up the deficiency
as per law. A careful consideration of the evidence of Returning Officer leaves
no manner of doubt that he has not distorted the facts nor withheld anything
from the court with regard to presentation of nomination papers by the candidates
including the proposed candidate.
The evidence on
record, i.e, the evidence of the Returning Officer, the documentary evidence, namely,
the check list, Form 3A displayed on the notice board, the consolidated list of
nominated candidates and the evidence of PW-2 clearly establish that original
Form-A and Form-B signed in ink by authorised officer of the party (BJD) were
presented 36by the proposed candidate along with 1st set of nomination paper on
April 4, 2009. The finding returned by the High Court in this regard cannot be
said to be wrong or unjustified.
is a fact that the original Forms A and B were not available on record before
the Returning Officer on April 6, 2009 at the time of scrutiny. However, we are
not persuaded by the submission made on behalf of the returned candidate that in
the absence of original Forms A and B on record, the Returning Officer had to
proceed on the basis of records available before him on that day and he had no option
but to reject the nomination. The least expected of the Returning Officer, when
he found that original forms A and B were not available on record, was to make brief
enquiry about non-availability of the forms A and B. It was all the more
necessary as the nomination papers along with accompanying documents were sent
83 of the 1951 Act requires that an election petition shall contain a concise statement
of the material facts on which the petitioner relies. It has been repeatedly
held by this Court that Section 83 is peremptory. In Samant N. Balakrishna, etc.
v. George Fernandez and others etc. 3, this Court observed in para 29 (Pg.
1212) of the Report thus: 3 AIR 1969 SC 1201 37 ".........The section is mandatory
and requires first a concise statement of material facts and then requires the fullest
What is the difference
between material facts and particulars? The word `material' shows that the
facts necessary to formulate a complete cause of action must be stated. Omission
of a single material fact leads to an incomplete cause of action and the
statement of claim becomes bad. The function of particulars is to present as full
a picture of the cause of action with such further information in detail as to
make the opposite party understand the case he will have to meet. There may be some
overlapping between material facts and particulars but the two are quite
Azhar Hussain v. Rajiv Gandhi4, this Court held that an election petition must be
dismissed if the mandatory requirements enjoined by Section 83 to incorporate the
material facts and particulars relating to alleged corrupt practice in the
election petition are not complied with.
Hari Shanker Jain v. Sonia Gandhi5, this Court reiterated the mandatory provision
contained in Section 83(1)(a) of the 1951 Act and observed therein that the
material facts required to be stated are those facts which can be considered as
materials supporting the allegations made. In other words, this Court said that
they must be such facts as would afford the basis for the allegations made in the
petition and would constitute the cause of action as understood in the Code of
Civil Procedure, 1908.4 AIR 1986 SC 12535 (2001) 8 SCC 233
3-Judge Bench of this Court in Pothula Rama Rao v. Pendyala Venakata Krishna
Rao and Others6, stated in paragraph 8 (at Pg. 6) of the Report as follows : "If
an election petitioner wants to put forth a plea that a nomination was improperly
rejected, as a ground for declaring an election to be void, it is necessary to
set out the averments necessary for making out the said ground. The reason
given by the Returning Officer for rejection and the facts necessary to show that
the rejection was improper, should be set out.
If the nomination had
been rejected for non-compliance with the first proviso to Sub- section (1) of Section
33, that is, the candidate's nomination not being subscribed by ten voters as proposers,
the election petition should contain averments to the effect that the nomination
was subscribed by ten proposers who were electors of the Constituency and therefore,
the nomination was valid.
Alternatively, the election
petition should aver that the candidate was set up by a recognized political
party by issue of a valid 'B' Form and that his nomination was signed by an elector
of the Constituency as a proposer, and that the rejection was improper as there
was no need for ten proposers. In the absence of such averments, it cannot be said
that the election petition contains the material facts to make out a cause of
a recent decision in Nandiesha Reddy v. Kavitha Mahesh7, this Court observed that
where election petitioner alleges improper rejection of his/her nomination paper
by the Returning Officer, he/she must set out in election petition reasons
given by the Returning Officer for refusal to accept nomination paper and facts
necessary to show that refusal was improper. In paragraphs 36 and 37 of the
Report (at Pg. 734), this Court held as under :6 (2007) 11 SCC 17 (2011) 7 SCC
721 "36. Section 83 (1)(a) inter alia provides that an election petition shall
contain a concise statement of the material facts.
Further, Section 87
of the Act provides that subject to the provisions of the Act and the Rules
framed thereunder every election petition shall be tried in accordance with the
procedure applicable under the Code of Civil Procedure to the trial of suits.
Order VI of the Code of Civil Procedure is devoted to the pleadings generally and
Rule 2(i) thereof, inter alia, provides that every pleading shall contain a statement
in a concise form of all the material facts on which the party pleading relies for
claim. In an election petition, which does not contain material facts, no
relief can be granted.
37. The phrase
"material fact" as used in Section 83 (1) (a) of the Act or Order 6 Rule
2 of the Code of Civil Procedure has not been defined in the Act or the Code of
Civil Procedure. In our opinion all specific and primary facts which are required
to be proved by a party for the relief claimed are material facts. It is
settled legal position that all material facts must be pleaded by the party on
which the relief is founded. Its object and purpose is to enable the contesting
party to know the case which it has to meet. An election petition can be
summarily dismissed if it does not furnish the material facts to give rise to a
cause of action. However, what are the material facts always depend upon the
facts of each case and no rule of universal application is possible to be laid
down in this regard."
view of the above legal position, there is no doubt that in a case under Section
100(1)(c) of the 1951 Act, the only issue before the Court is improper rejection
of nomination paper and the court is required to examine the correctness and propriety
of the order by which the nomination paper of a candidate is rejected. The grounds
set out in the election petition challenging the order of rejection of
nomination paper, thus, form the basis of adjudication in the election
learned senior counsel for the appellant submitted that the material facts
relating to the ground on which election of the returned candidate has been set
aside have neither been pleaded in the election petition nor have been proved by
leading cogent evidence. We do not find any merit in this contention.
the Election Petition No. 4 of 2009 filed by the proposed candidate, the order of
rejection of nomination has been assailed, inter alia, on the following
grounds: "5(C) That the reasonings given in the decision of the Retuning Officer,
in his order of rejection dtd. 06.04.2009 is also not legally sustainable for the
following reasons :-(a) The Nominee of B.J.D. Nominee for 87-BARAMBA Assembly Constituency
was submitted on 03.04.2009. The Returning Officer had the occasion to examine
the same and grant the Check List on 03.04.2009 i.e. one day before the submission
of the Nomination of the Election Petitioner, whereas the Election Petitioner
submitted his Nomination on 04.04.2009.
If according to the
Returning Officer, "from comparison of two sets of Form A & B submitted
in 87- BARAMBA, he came to conclusion that the set of Form A & B, submitted
by the Election Petitioner along with his first set of Nomination was not
original and not signed in ink but a xerox copy, then in ordinary course of
human conduct and in view of instruction of the Election Commission", he would
have recorded an endorsement to that effect in the CHECK LIST which he himself gave
at 11.45 AM on 04.04.2009, and would have further called upon the Election
Petitioner to produce the same by 3 PM on the same day.(b)
The Returning Officer
instead of making a comparison with the Form A & B submitted along with the
Nominations of 87-BARAMBA, should have referred to the Form A & B, which was
communicated both to him & to the CEO under the provisions of Election
Symbol (Reservation & Allotment) Order - 1968. 41 5(D) That a plain reading
of four Orders of rejection recorded by the Returning Officer on four sets of Nominations
submitted by the Election Petitioner spells out so much so discrepancy that the
same itself is sufficient to conclude that the order suffers from inconsistency
and is an outcome of non application of mind. 5(E)
That on the date of
scrutiny no objection was raised by any of the contesting candidates or any
person on their behalf present at the time and place of scrutiny to the effect
that the Form A & B, filed by the Election Petitioner with his first set of
"NOMINATION" were not original not it contains the signature of the
authorised person IN INK were Xerox copies. The complaint was raised by the Returning
Officer himself who had received all the four sets of Nominations, along with other
affidavits, documents original money receipt and original Form A & B, duly signed
in ink, by the authorised person, and had signed the CHECK LIST which is a document
required to be signed & delivered to the candidate in exercise of his statutory
powers on 04.04.2009.
The partisan attitude
and hostility of the Returning Officer towards the Election Petitioner emanates
from his own conduct, when he refused minimum opportunity to the Election Petitioner
to REBUT the so called allegations regarding non-submission of original Form -
A & B containing signature of authorised person in ink, which a candidate
is entitled to as of right under the Rules of Election Law."
High Court, inter alia, considered the evidence of PW-2 and also the evidence of
the Returning Officer, the documentary evidence, namely, the check list (original-exhibit
11), Form 3-A (exhibit 42/F) and consolidated list of nominated candidates 42--checks
IF (exhibit-44) and the contentions of the returned candidate and held as under
: "13. As found from the evidence of P.Ws 1 and 2, the latter filed four sets
of Nomination along with other accompanying documents. In the 1st set of Nomination
Papers, he filed original ink signed Form A and Form B. Accordingly, the
Returning Officer issued the Check List to Sri Ranendra Pratap Swain. They further
deposed that while handing over the Check List, the Returning Officer stated that
"whatever original forms and documents that you have submitted and I have received
from you have been clearly mentioned by me in the Check List. You preserve the Check
List with you.
If in fact the Returning
Officer had stated so, it being a material fact, the same should have been averred
in the election petition. In absence of pleading this part of evidence of P.Ws
1 and 2 cannot be relied upon. According to the evidence of Returning Officer, on
examining the documents on technical stand point, he found the election Petitioner,
Sri Ranendra Pratap Swain to have filed all required documents and accordingly he
issued the Check List marked Ext. 22 to him. He fairly admitted in his evidence
that he can distinguish a xerox copy from its original.
He further deposed that
had it come to his notice that Sri Ranendra Pratap Swain filed the xerox copies
of the original ink signed Form A and Form B, he would have endorsed it in the bottom
of the Check List and directed him to file the original ones. Again on
04.04.2009 after the time fixed for filing the Nomination Papers was over, he prepared
copy of those documents in Form 3A to publish in the notice board. At that time
also he could not detect the filing of Xerox Copies of the original ink signed
Form A and Form B. Furthermore, when he prepared the consolidated "List of
Nominated Candidates-Checks if".
He could not detect the
so called defect. He mentioned the symbol "Conch" in the appropriate column
of the said form so also the name of political party, which set up the
candidate, Sri Ranendra Pratap Swain. Since the signature of P.W. 1 the proposer
of Ranendra Pratap Swain, partially got effected, the Returning Officer asked him
to put another signature and accordingly he did it. When the Returning Officer
was alive to find out an effaced signature in the Nomination, it appears some what
fishy how he filed to detect the Xerox 43 copies of the original ink signed Form
A and Form B, if filed.
The original ink
signed Form A and Form B, if filed. The contention of learned counsel for the
respondent that there was no pleading with regard to Form 3A and consolidated "List
of Nominated Candidates-Checks If" in either of the election petitions and
as such the same cannot be relied upon cannot be accepted. It is the fundamental
rule of pleadings that pleading must contain a statement of the material facts,
but not the evidence by which they are to be proved.
In the present case, it
has been averred in the election petitions that Shri Ranendra Pratap Swain filed
the Nomination along with required documents including original Form A and Form
B ink signed, before the Returning Officer. Moreover, Form 3A and consolidated
"List of Nominated Candidates-Checks if" have been admitted as Exts. 42/f
and 44 respectively without objection. So their validity cannot be questioned. As
per the decision State of Orissa and others (supra) their probative value is
also very high. Even if those documents were not referred to in the election
petitions, the evidence led in that respect can be accepted."
High Court finally concluded that the proposed candidate had filed the original
Form-A and Form-B duly signed in ink by the authorised person of BJD with the
first set of his nomination and, accordingly, decided Issue No. 6 in favour of
election petitioners. The consideration of the matter by the High Court in para
14 of the judgment may be reproduced as it is. "14. No doubt at the time of
filing of Nomination, the Returning Officer is not required to scrutinize the Nomination
and the accompanying documents in minor details, but he is duty bound to examine
the same on technical stand point.
Now the pertinent question
is whether he was expected to examine whether the original ink signed Form A
and Form B were filed, while examining the Nomination Paper along with the accompanying
documents, on technical stand point. In my considered 44 opinion, he had to do
so, particularly when he deposed that had it come to his notice that Sri
Ranendra Pratap Swain filed the Xerox copies of the original ink signed Form-A
and Form-B, he would have endorsed it in the bottom of the Check List and
directed him to file the original ones.
At this stage Mr. Palit,
learned counsel for the respondent submitted that unless, an election petitioner
fully established his case, it would not be proper to set aside the election. In
support of his submission, he relied on the decision in the case of Ram Phal Kundu
Vs. Kamal Sharma, AIR 2004 Supreme Court 1657, where the apex Court held as
follows. "Therefore, unless the election petitioner fully established his
case, it will not be legally correct to set aside the election of the
As found from the
evidence of P.Ws. 1 and 2 the latter filed the original ink signed Form A and
Form B in his 1st set of Nomination. This part of their evidence could not be shaken.
Even no suggestion was given to P.W. 1 that P.W. 2 did not file original ink
signed Form A and Form B in his 1st set of Nomination. So, the above decision is
not applicable to the present case. The Returning Officer has admitted in his
evidence that the Nominations along with all the accompanying documents of all
the eight candidates were Xeroxed outside in Anand Xerox of Athagarh.
He has also admitted that
on 04.04.2009 all the four sets of Nomination papers of Sri Ranendra Pratap
Swain were Xeroxed to display the same in his Notice Board. The possibility
that, in the process the original ink signed Form A and Form B were
inadvertently exchanged for the Xerox copies thereof, cannot be ruled out. Under
such premises, in my considered opinion, Sri Ranendra Pratap Swain had filed
the original Form-A and Form-B duly signed in ink by the authorised person with
the 1st set of his Nomination. Accordingly, issue no. 6 is answered in
what we have already discussed above, we do not find any error in the
consideration of the matter by the High Court.
election petitioner, as noticed above, in ground 5(E) set up the case that the
objection of non-filing of original Forms A and B signed in ink by the
authorised officer of the party was not raised by any of the contesting candidates
or any person on their behalf present at the time and place of scrutiny. It was
the Returning Officer who raised the issue of non-filing of original Forms A
and B but he refused minimum opportunity to the election petitioner to rebut the
In our view, the
Returning Officer ought to have acted in terms of proviso to Section 36(5) of the
1951 Act and afforded an opportunity to the election petitioner until next day to
rebut the objection and show to the Returning Officer that the proposed candidate
had filed Forms A and B duly singed in ink by the authorised person of BJD.
PW-3, the authorised representative of the election petitioner did state in his
evidence that he requested to the Returning Officer, when he raised the
objection that original Forms A and B were not filed, to enquire into the matter
about the missing Forms A and B. It was not necessary to state in the election
petition the evidence of PW-3 in support of ground 5(E)
The proviso that follows sub-section (5) of Section 36 of the 1951 Act provides
that in case an objection is raised by the returning officer or is made by any other
person the candidate 46concerned may be allowed time to rebut it not later than
the next day but one following the date fixed for scrutiny, and the returning
officer shall record his decision on the date to which the proceedings have been
Rakesh Kumar v. Sunil Kumar8, this Court held in para 21 (Pg. 500) as under: "21.
.........The use of the expression "not later than the next day but one following
the date fixed for scrutiny" under the proviso to Sub-section (5) of
Section 36 of the Act un-mistakably shows that the Returning Officer has been vested
with the discretion to fix time to enable a candidate to rebut an objection to the
validity of his nomination paper and such a discretion has to be fairly and judicially
The refusal to grant an
opportunity to the respondent and rejecting his nomination paper was clearly an
arbitrary exercise of the discretion vested in the Returning Officer. The Returning
Officer has also not given any cogent reasons for his refusal to grant an opportunity
as prayed for by the respondent. The Returning Officer appears to have been labouring
under some misconception when he recorded that the political party "cannot
be given further time to change such authorisation after scrutiny".
Under the proviso to
Section 36(5) of the Act, the scrutiny itself would have been postponed to the
adjourned time and, therefore, it was not a case of meeting the objection after
scrutiny of the nomination papers. The failure to exercise his jurisdiction to postpone
the decision as to the validity of the nomination paper of the respondent, even
after the respondent had sought time to meet the objection, indeed rendered the
rejection of the nomination paper of the respondent as both improper and illegal.
The Returning Officer
is not expected to reject a nomination paper, without giving an opportunity to the
candidate or his representative present at the time of scrutiny to meet an objection,
capable of being met, particularly where such an opportunity is sought for by the
candidate or his 8 (1999) 2 SCC 489 representative and no one present on behalf
of the other candidates had opposed the claim made by the respondent.
Having raised the objection
suo motu, the request of the respondent who was present and sought time in
writing to seek clarification from the BJP as to who was its official candidate,
the Returning Officer in all fairness was obliged to grant time to the respondent
as prayed for by him and postponed the scrutiny to the next day but he ought not
to have rejected his nomination paper in hot haste. The Returning Officer,
obviously, failed to exercise his jurisdiction under Section 36(5) of the Act properly
and thereby fell in a grave error in rejecting the nomination paper of the
the facts and circumstances of the present case, which have already been
noticed above, the Returning Officer erred in acting in hot haste in rejecting the
nomination paper of the proposed candidate and not postponing the scrutiny to
the next day, particularly, when a request was made by the authorised
representative of the proposed candidate. The election petitioners have been successful
in proving the improper rejection of the proposed candidate's nomination paper.
In other words, they have been able to prove the ground for setting aside
appellant's election to 89-Athagarh Assembly Constituency under Section 100(1)(c)
of the 1951 Act.
consideration of the matter by the High Court does not suffer from any factual or
illegal infirmity. In this view of the 48matter - and the factual and legal position
discussed above - we see no ground to interfere with the impugned judgment.
appeals, accordingly, fail and are dismissed with no order as to costs.
(JAGDISH SINGH KHEHAR )