REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4956 OF 2010
Ramesh Rout .... Appellant
Versus
Rabindra Nath Rout ....Respondent
WITH
CIVIL APPEAL NO. 4962 OF 2010
JUDGMENT
R.M. Lodha, J.
The 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’).
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2. The 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 :
“28.3.2009
To
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."
3. On 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
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Biju 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.
4. On 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).
5. Upset 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.
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6. The 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.
7. Two 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.
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8. The 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.
9. On 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?”
10. The 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
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(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.
11. The 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.
12. The 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.
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13. It is from this judgment that these two appeals have
arisen.
14. We have heard Mr. Gopal Subramanian, learned senior
counsel for the appellant and Mr. K.K. Venugopal, learned senior
counsel for the proposed candidate.
15. The 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.
16. By 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
7
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 handbook. 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
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the check list retained by the Returning Officer. The proforma of the
check list has also been notified with the notification dated February
10, 2009.
17. Section 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
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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”
18. Section 35 provides for notice of nominations and the
time and place for their scrutiny.
19. The 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 nomination.–(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 section 33.
(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
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(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”
20. The 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
11
deemed to be a defect of substantial character within the meaning of
sub-section (4) of Section 36.
21. Form 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 his nomination. 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.
22. Rule 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.
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23. In 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. The registered
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;
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(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.”
24. Chapter 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 law. 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 7 provides for
presumption of validity of every nomination paper unless the contrary
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is prima facie obvious or has been made out. In case of a reasonable
doubt, as to the validity of a nomination paper, the benefit of such
doubt must go to the candidate concerned and the nomination paper
should be held to be valid. 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 set
aside. 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.
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25. In 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 nature.
Learned senior 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
16
prescribed 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.
26. On 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 nomination
paper. 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 be signed’. 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
17
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 Rules.
27. Mr. 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 present controversy.
28. On the above contentions, the question presented for our
consideration is, whether it is mandatory for a candidate set up by a
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recognised political party to file original ink signed Forms A and B
appended to para 13 of the 1968 Order.
29. Before 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.”
30. Section 33 of the 1951 Act enacts that a candidate shall
file nomination paper on or before the appointed date in the
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prescribed 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
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applicable 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. However, to 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
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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. An
independent 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 the interval.”
31. The 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.
32. 1968 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
22
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 accepted. 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.
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33. That 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.
34. In 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. . . . . . . .
35. In 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:
36. The 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
24
Order 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.
37. Where 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,
25
namely, the nomination paper having not been completed in the
prescribed form.
38. The 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.
39. Having 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
illegality.
40. The pleadings of the parties as well as the evidence let in
by them clearly show that the parties were seriously in issue whether
26
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
27
was 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 petitions.
41. The 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
28
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).
42. The 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.
43. Significantly, 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
29
were 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.
44. Although 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 :
Sl. Documents Whether filed
No. (write yes/no)
1. Affidavit in Form-26 yes
2. Affidavit as per the Commission’s order yes
dated 27.03.03
3. Certified extract of electoral roll (when Not
candidate is an elector of a different needed
constituency)
4. Forms A and B (applicable in the case yes
of candidates set up by political parties)
5. Copy of caste certificate (if the Not needed
candidate claims to belong to SC/ST)
6. Security deposit (whether made) yes
7. Oath/affirmation (whether taken) yes
30
The following documents which have not been filed should
be filed as indicated below :
(a) ____________should be filed latest by __________.
(b) ____________should be filed latest by __________.
Received.
……………………….
(Signature of candidate)
Date & time : 04.04.2009 -- 11.45 a.m.
Place : ATHAGARH"
45. List of nominated candidates–Checks If (Ex.44) to the
extent it is relevant is as follows :
Name of Parliamentary/Assembly Constituency -89 Athagarh
No 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 7
1 Ranendra At- Cunch Biju Janata Yes Main
Pratap Radhago Dal Candidate
Swain vindapur
P.O.-
Dhaipur,
P.S.
Athagarh
Dist.-
Cuttack
31
46. On 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.
47. On 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 were filed.
48. It 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
32
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.
49. As 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
33
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
34
paper by the proposed candidate, he would have made an
endorsement to that effect in the check list. Moreover, between 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
upon him.
50. The 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
35
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
36
by 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.
51. It 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 for xeroxing.
52. Section 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 possible particulars. 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 distinct……….”
53. In 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.
54. In 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 1253
5 (2001) 8 SCC 233
38
55. A 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 action.”
56. In 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 1
7 (2011) 7 SCC 721
39
“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.”
57. In 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 petition.
40
58. The 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.
59. In 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.”
60. The 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.”
61. The 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 appellant.”
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 affirmative.
62. In what we have already discussed above, we do not find
any error in the consideration of the matter by the High Court.
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63. The 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
same. 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).
64. 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
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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.
65. In 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 exercised. 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
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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 respondent……….”
66. In 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.
67. The consideration of the matter by the High Court does
not suffer from any factual or illegal infirmity. In this view of the
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matter – and the factual and legal position discussed above – we
see no ground to interfere with the impugned judgment.
68. The appeals, accordingly, fail and are dismissed with no
order as to costs.
………………………J
(R.M. LODHA)
………………………………..J.
(JAGDISH SINGH KHEHAR )
NEW DELHI
DECEMBER 9, 2011.
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