ORDER
D.N. Prasad, J.
1. An application under Order VII, Rule 11, CPC read with Sections 81 and 86 of the Representation of People Act, 1951 (hereafter referred to ‘as the Act’) has been filed on behalf of the respondent praying therein to reject the Election Petition on the ground that it does not disclose any cause of action and the election petitioner lacks locus standi to file such petition under Section 81 of the Act.
2. It is stated that the petitioner has neither been duly nominated nor even claims
to have been duly nominated as a candidate at any election. There is only a bald allegation in the election petition that the election petitioner was a candidate. The power under Article 324 of the Constitution is plenary and the election commission is competent to issue such orders as are considered by it to be expedient for the superintendence, directions and control of the preparation of the electoral rolls for, and the conduct of, all elections of Parliament, and the Election Commission has issued of direction on 6.1.1998 (Annexure A) which requires the filing of an affidavit and non-filing of the said affidavit by the election petitioner itself disqualifies for being nominated and her nomination paper has rightly been rejected by the Returning Officer. Merely filing a nomination paper does not make a person candidate as there are many other requirements which have to be fulfilled including the filing of an affidavit and the directions issued by the Election Commission was mandatory and as such the Election petition is liable to be rejected.
3. Another petition has also been filed on behalf of the respondent stating therein that the Election petitioner is not a duly nominated candidate within the meaning of Section 79(b) of the act and thus lacks locus standi to file an election petition under Section 81 of the Act. Therefore, additional issue may be framed in order to adjudicate the contentions raised by the parties i.e. “Whether the election petition is entertainable as the petitioner not being a duly nominated candidate lacks locus standi.”
4. Heard the learned counsel for both sides.
Mr. K.K. Sahay, the learned counsel appearing on behalf of the respondent submitted, at the very outset, that in view of power under Article 324 of the Constitution the Election commission of India is competent to issue such orders as are considered by it to be expedient for the Superintendence, directions and control of the preparation of the electoral rolls and Election Commission of India has already issued a letter dated 6.1.1998 for furnishing the requisites information in the form of affidavit to the Returning Officer as regards to the criminal activity but the election petitioner admittedly had not furnished the said requisite affidavit with the nomination paper and due to which her nomination petition was rejected rightly by the Returning Officer. He further, argued that the Election Petition has neither been duly nominated nor even claims to have been duly nominated as a candidate at any election and merely filing a nomination paper does not make her a candidate and, therefore, the election petitioner lacks locus standi to maintain the election petition. The counsel for the respondent also relied upon the cases of Election Commission of India through Secretary v. Ashok Kumar and Ors., 2000 (8) SCC 216. Mathura Prasad v. (Sic) Khan. AIR 1990 SC. 2274.
5. Mr. H.K. Lal, the counsel for the petitioner, on the other hand, contended before me that it is true that Election Commission has got the power of Superintendence, direction and control of the preparation of electoral rolls, but the said direction of the Election Commission cannot over-ride the provisions of Representation of People Act. 1951, nor the law passed by the Parliament is subject to the direction issued by the Election Commission. It is further submitted that the election petition in the High Court is an original proceeding and it is not an appeal against the order of the Returning Officer. The enquiry before the Returning Officer is summary in nature as there is no scope for elaborate enquiry and it is open to the authority to place fresh or additional material before the High Court to show that the Returning Officer order rejecting the nomination paper was improper as we as in the instant case, the respondent has also filed written statement and on the pleadings of, both sides, several issues have already been framed. It is also contended that the Election petitioner had already filed nomination paper and as soon as the Nomination paper was filed the Election petitioner would be deemed to be a candidate on the date it was filed and she becomes a candidate for election in question after filing the Nomination paper. It is also argued that an Election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the Election petition does not
comply with either of the provisions of Section 81, 82 or Section 107 of the Act, whereas there is no defect in the election petition as regards to Sections 81 or 82 of 107 of the Act. Moreover, the whole matters can be thrashed on the basis of the evidence adduced from both sides oral or documentary so that the matter in question may be set at rest once for over.
6. The counsel for the Election petitioner also relied upon the cases of A.C. Jose v. Sivan Pillai, AIR 1984 SC 921, Krishna Mohini v. Mohinder Nath Safat, AIR 2000 SC 317, and Subhash Desai v. Sharad J. Rao and Ors., AIR 1994 SC 2277.
7. Obviously, as many as five issues have already/been framed by the Order dated 24.3.2000 and one of the issues is “Whether the present election petition is maintainable.”?
8. One more petition has been filed by the respondent for framing additional issues being as “whether the election petition is entertainable as the petitioner not being a duly nominated candidate lacks locus standi.”?
9. An election petition is liable to be dismissed in limine under Section 86(1) of the Representation of the People Act, 1951 only if the Election petition does not comply with either of the provisions of Section 81 or 82 or Section 107 of the act, but there appears no defect or non compliance of the provisions of Sections 81 & 82 and 107 of the Act. It is true that Election commission of India issued a letter dated 6.1.1998 to furnish the requisite information in the form of affidavit to the Returning Officer before commencement of scrutiny of nomination which is in respect of disqualifications on conviction for offences as laid down under Section 8 of the Representations of People Act, 1951. Section 8(3) of the said Act reads as follows :
“A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in Sub-section (1) or Sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”
10. In the case of Mathura Prasad. (supra) it was held that though the candidate was not identified as per electoral roll and neither the candidate nor any representative on his behalf were ready to assist the Returning Officer in curing the defect
and in proving the correct identity of candidate and in fact they did not remain present when the nomination paper was taken up for scrutiny it cannot be said that the Returning Officer committed any error in rejecting the nomination appear of the candidate.
11. The above case was decided after framing issues arid evidences led by both parties in support of their case. But the instant case is quite distinguishable as no any evidence has been adduced from either side. It is also correct that the Returning Officer should not reject the nomination paper merely on a mistake of technical or formal defect which is not of a substantial character. It actually depends upon facts and circumstances of each case to find what mistake in a nomination paper can be considered a mistake of substantial character and that can be assessed and considered by the evidence oral or documentary adduced from both sides.
12. In the case of Ashwini Kumar Sharma v. Jadubansh Singh and Ors.,
reported in AIR 1998 SC 337, the Apex Court held to the extent that the Election petition cannot be rejected at a preliminary stage on the ground that it does not contain a concise statement of material facts or they are vague as well as it cannot be rejected even for not disclosing complete cause of action,
13. On this score, the entire election petition will be considered and assessed to this effect.
All the matters in law and facts involved are subject to consideration on merit itself issue’s wise as several issues have already been framed in the instant case. Thus, it will not be justified in rejecting the election petition in limine without affording the opportunity to the petitioner.
14. Thus, in my view, the election petition is not liable to be dismissed in limine. Hence, the petition filed by the respondent is rejected.
Another petition filed on behalf of the respondent for framing additional issue is, hereby, allowed.
Let an additional issue be framed accordingly.
“4(A) Whether the Election petition is entertainable and the petitioner not being a duly nominated candidate lacks focus standi.”?
15. Both parties have already filed the list of witnesses to be summoned, let sum-
mons be issued against the witnesses of Elections petitioner fixing 4.5.2001 for evidence.
16. Petition for rejecting election petition rejected petition for framing additional issue allowed.