ORDER
S.P. Khare, J.
1. This is an election petition by the defeated candidate under Section 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) for declaring the election of the returned candidate as void on the ground that the nomination of Bhagwan Singh, a third candidate, has been improperly rejected.
2. In the bye-election to Bhojpur assembly constituency in Madhya Pradesh held in February, 2000, respondent Shri Naresh Singh Patel was declared elected. Petitioner Shallgram Shrivastava is a defeated candidate. Bhagwan Singh had also filed his nomination paper. A certified copy of that
nomination paper is Ex. P. 1. It was on the prescribed form 2-B under Rule 4 of the Conduct of Elections Rules, 1961. It was declared by Bhagwan Singh in this form “1 am qualified and not also disqualified” for being chosen to fill the seat. The scrutiny of the nomination papers took place on 1-2-2000. It was discovered that Bhagwan Singh had not filled up the pro forma prescribed by the Election Commission by the letter dated 28-8-1997 (Ex.P.8 page 54) to ascertain whether the candidate had been convicted or not for any of the offences mentioned in Section 8 of the Act. The sample of this pro forma is Ex. 9. Bhagwan Singh did submit an affidavit (Annexure 1) in support of the said pro forma in which it was sworn by him that the information given in the pro forma is correct. This affidavit was of no significance as the pro forma was left blank. The gist of this pro forma is that the candidate is required to declare that he has not been convicted for any offence mentioned in Section 8 of the Act and if he has been convicted, the details thereof. Bhagwan Singh was not present at the time of the scrutiny of the nomination papers by the returning officer on 1-2-2000. The Returning Officer passed an order on the nomination paper of Bhagwan Singh that as the pro forma prescribed by the Election Commission has not been filled up by him it cannot be ascertained whether he has been convicted or not for any offence mentioned in Section 8 of the Act and therefore, the nomination paper was rejected. Bhagwan Singh has not challenged the rejection of his nomination paper.
3. The petitioner’s case is that Bhagwan Singh had declared in the nomination form that he was qualified and not disqualified to fill the seat. It was implicit in this declaration that he has not been convicted for any offence. Therefore, his nomination form could not be rejected. There was no defect of a substantial character within the meaning of Section 36(4) of the Act. It has been further pleaded that Bhagwan Singh’s nomination paper fully complied with the requirements of law under the Act and the rules framed thereunder and it was not necessary to fill up the pro forma prescribed by the Election Commission. It is stated that the instruction of the Election Commission in the letter dated 28-8-1997 (Ex. P. 8 page 55) is only ah executive fiat and failure to fill up that pro forma could not be a ground for rejection of the nomination paper.
4. The case of the respondent is that the nomination paper of Bhagwan Singh was rightly rejected by the Returning Officer as he had not filled up the pro forma prescribed by the Election Commission. Bhagwan Singh did not specifically declare that he has not been convicted for any of the offences detailed in Section 8 of the Act. The Returning Officer was bound by the instructions issued by the Election Commission and he could not ignore them.
5. The following issues were framed. The findings of this Court are noted against each issue :–
Issues
Findings
1
Whether the nomination of Bhagwan Singh was improperly rejected
by the Returning Officer?
no
2(a)
Whether the affidavit (Annexure 1) filed by
Bhagwan Singh along with the nomination paper was sufficient compliance with
the requirement of law?
no
(b)
Whether the non-submission of declaration was not a defect of substantial nature?
It was
3.
Relief and costs?
Dismissed with costs.
Issues Nos. 1 and 2
6. Section 33 of the Act provides for the presentation of the nomination paper and requirements for a valid nomination. According to this Section each candidate shall deliver to the Returning Officer a nomination paper “completed in the prescribed form”. One of the forms which has been prescribed under Rule 4 of the Conduct of Elections Rules, 1961 is form No. 2-B. This statutory form was duly filled in by Bhagwan Singh. In this form he had declared that he is “qualified and not also disqualified” for being chosen to fill the seat in the assembly. Section 36 of the Act provides for scrutiny of nomination. According to Section 36(2), the Returning Officer shall 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 a summary enquiry, if
any, as he thinks necessary, reject any nomination on the ground that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat. One of the disqualifications prescribed under Article 191 of the Constitution for being chosen a member of the legislative assembly is “(e) if he is so disqualified by or under any law made by Parliament”. Section 8 of the Act lays down the disqualification on conviction for certain offences. Section 36(4) of the Act further provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of substantial character.
7. The argument of the learned counsel for the petitioner is that Bhagwan Singh had submitted the nomination paper as per requirement of Section 33 and he had declared that he was qualified and not disqualified for being chosen to fill the seat of the legislative assembly and therefore, having complied with the provision of law in this respect his nomination paper could not be legally rejected by the Returning Officer. It is further argued that the failure to fill up the pro forma prescribed by the Election Commission (Ex. P-9) was not a defect of substantial character within the meaning of Section 36(4) of the Act and therefore, the nomination could not be rejected. It is also contended that the Election Commission could not assume the legislative function of prescribing a pro forma of this type and there were no specific instructions of the Election Commission that the Returning Officer shall reject the nomination paper in case this pro forma is not filled up and signed by any candidate. The argument runs, that such a pro forma, if at all, could be provided by an amendment in the Act or the rules framed thereunder. It is submitted that there is no mandatory requirement under any statutory provision to fill up the said pro forma and the omission to fill up such pro forma was not a defect of fatal nature. It is submitted that the nomination form of Bhagwan Singh, was improperly rejected by the Returning Officer and on this ground, the election of the respondent should be declared void as per Section 100(1)(c) of the Act.
8. The reply to the arguments of the petitioner by the learned counsel for the respondent is that the source of power of the
Election Comission for issuing the instructions contained in the letter dated 28-8-1997 (Ex. P.8, page 55) is Article 324 of the Constitution of India. It is submitted that the Election Commission can supplement the taw by issuing the executive instructions in aid of the statutory provisions. It is also submitted that the vacuum can be filled in by the Election Commission by giving suitable instructions to the Returning Officer for properly discharging the statutory functions. It is pointed out that the pro forma Ex. P. 9 has been prescribed by the Election Commission with an avowed object of keeping the criminals at bay from the elected bodies and this was legally permissible. The instructions of the Election Commission are binding on the Returning Officers and these could not be ignored. It is submitted that Bhagwan Singh deliberately left the lacuna by his omission to fill this form which was provided to him with the nomination form. He submitted the affidavit in support of the pro forma. It is further argued that Bhagwan Singh was not aggrieved by the rejection of his nomination paper. He was not present when the scrutiny took place and he would have removed the defect if he had been present by filling the blank pro forma. His election agent was also not present and no one requested the Returning Officer on his behalf to give time to make up the deficiency. It is contended that Bhagwan Singh submitted his nomination paper in a casual manner, he was not present at the time of scrunity and he has not challenged the rejection of his nomination paper and therefore the election of the returned candidate cannot be invalidated at the instance of a defeated candidate. The learned counsel for the respondent goes to the extent that Bhagwan Singh was a dummy candidate and the lacuna was deliberately created so that the petitioner may take its advantage to challenge the election of the respondent.
9. After careful consideration of the respective arguments this Court is of the opinion that it cannot be said that the nomination paper of Bhagwan Singh was improperly rejected. It is one of the duties of the Returning Officer at the time of scrutiny of nomination papers to see that the candidate is not disqualified. He has to decide after a summary enquiry that the candidate has not been convicted for any of the offences provided in Section 8 of the Act. The declaration by the candidate in the prescribed form that he is “not disqualified” may not be sufficient and therefore, information may be elicited from him whether he has been convicted for any of the offences specified in Section 8 of the Act and if so the details thereof. The candidate can be required to be more specific in this respect and his cryptic declaration that he is not disqualified may not serve the purpose.
10. In Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851 the Constitution Bench of the Supreme Court has held that the Election Commission is entitled to exercise certain powers under Article 324 of the Constitution itself on its own right, “in an area” not covered by the Representation of the People Act and the Rules”. The Election Commission has been described as “super-authority”. It has been observed that Article 324 is a plenary provision vesting the whole responsibility for national and State elections and therefore, the necessary powers to discharge that function. The Election Commission cannot defy the law armed by Article 324. Article 324 operates in “areas left unoccupied by legislation” and the words ‘superintendence, direction and control’ as well as ‘conduct of all elections’ are the broadest terms. The law has been summarised as under (Para 2) :–
“Two limitations at least are laid on its plenary character in the exercise thereof, firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play-in-action in a most important area of the constitutional order, viz., elections”.
11. In A.C. Jose v. Sivan Pillai, AIR 1984 SC 921 It has been laid down that the legal and constitutional position as regards conduct of elections is as follows (Para 25) :–
(a) When there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any
orders in respect of the conduct of elections.
(b) Where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324.
(c) Where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of elections.
12. In the case of A.C. Jose, (AIR 1984 SC 921) it was held by the Supreme Court that the word ‘ballot’ in its strict sense would not include voting by the use of voting machines, The Act by framing the rules completely excluded the mechanical process which, if resorted to, would defeat in large measure the mandatory requirements of the rules.
13. In Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216 ; (AIR 2000 SC 2979) it has been observed that the words “superintendence, direction and control” in Article 324 of the Constitution have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.
14. In the present case the Election Commission by issuing the instructions contained in the letter dated 28-8-1997 (Ex. P. 8 page 54) in exercise of powers under Article 324 of the Constitution acted in an area “unoccupied” by legislation” and there was no defiance of any statutory provision. The Election Commission supplemented and not supplanted the law. The object of the letter dated 28-8-1997 (Ex. P. 8) was to prevent to some extent the criminaltsation of politics. Paras 2 and 3 of this letter are as under :–
“2. To operationalise this directive of the Commission, it is desired that when a candidate files his nomination paper, the Returning Officer or, as the case may be, the Assistant Returning Officer, receiving the nomination paper shall hand over to him the enclosed letter, together with the pro forma of affidavit annexed thereto, to ascertain at
the time of scrutiny of nomination as to whether the candidature is valid from the angle of Section 8 of the R. P. Act, 1951. The information asked for in the pro forma enclosed with the letter, which the Returning Officer is to hand over to the candidate, is to be submitted by the candidate in the form of an affidavit to the Returning Officer before the commencement of scrutiny of nominations.
3. These instructions of the Commission, along with a copy of the Commission’s aforesaid order dated 28-8-1997, should be furnished to every Returning Officer and Assistant Returning Officer of each Parliamentary and Assembly Constituency, and all other election authorities concerned, in the State/UT, for their information, guidance and strict compliance, at all future elections.
15. The instructions contained in the letter referred above cannot be said to be in derogation of any statutory provision, These instructions were issued for ascertaining from the candidate whether he has been convicted for any of the offences under Section 8 of the Act. This is not legislation but it is implementation of the legislative provisions in the Act and the rules. It is the paramount duty of Election Commission to ensure that elections are “free and fair”. If the instructions are issued to maintain the purity of elections and if such instructions are not in conflict with or repugnant to any statutory provision these must be respected and followed by the authorities subordlnae to the Commission and also by the candidates. It was necessary for the Returning Officer to follow these instructions strictly. The nomination form submitted by Bhagwan Singh did not comply with the instructions of the Election Commission. He was admittedly given the blank pro forma with the nomination form but he did not fill it. In the absence of the entries in this pro forma, the Returning Officer could not satisfy himself whether the candidate was convicted for any of the offences specified in Section 8 of the Act or not.
16. The failure to fill up the pro forma (Ex. P. 9) by Bhagwan Singh and give the requisite information in face of the strict instructions of the Election Commission was a defect of substantial character and his nomination was properly rejected.
17. The oral evidence adduced by both
the sides should be looked into. Shallgram Srivastava (P.W. 1) has deposed that after rejection of the nomination paper of Bhagwan Singh he called him on 4-4-2000 and then, he has told by the latter that he had filled the pro forma Ex. P. 9. Bhagwan Singh (P. W. 2) also has deposed that he had filled in the pro forma Ex. P. 9. This is not pleaded by the petitioner in his petition. The pleading is that it was not necessary to fill in this pro forma and it was not the when the scrutiny of the nomination took place. The evidence on a point which has not been pleaded cannot be read. In case the pro forma had been actually filled in there would have been no occasion to reject the nomination.
18. Shaligram Srivastava (P.W. 1) has stated in cross-examination that he himself did fill in the pro forma Ex. P. 9 and supported it by affidavit. He did not know Bhagwan Singh prior to the scrutiny of nomination papers and he was not present when the scrutiny took place. Suresh Srivastava (D. W. 2) is an Advocate. He has deposed that he had filled up the nomination form of Bhagwan Singh at his instance and at that time he asked Bhagwan Singh to fill up the pro forma also but he said that there was no need to fill that pro forma. To the same effect is the evidence of Kishore Ramani (D. W. 3). Hari Narain Saxena (D. W. 4) has stated that he was present at the time of scrutiny of nomination forms as an election Agent of the respondent and it was found that Bhagwan Singh had not filled the pro forma Ex. P. 9, Therefore, the finding of this Court is that Bhagwan Singh did not fill in the pro forma Ex. P. 9.
19. In view of the above discussion the answer to issue No. 1 is that the nomination of Bhagwan Singh was not improperly rejected. The answer to issue No. 2 (a) is that the affidavit (Annexure 1) (Ex. P. 2) filed by Bhagwan Singh along with the nomination did not make out any sense as the pro forma (Ex. P. 9) in support of which this affidavit was filed by him was blank. The answer to issue No. 2(b) is that the non-submission of the declaration in pro forma Ex. P. 9 was a defect of substantial character. The nomination of Bhagwan Singh was rightly rejected.
20. This petition challenging the election of respondent Naresh Singh Patel as a member of M. P. Legislative Assembly from Bhojpur constituency is dismissed. The petitioner will bear his own costs and pay that
of the respondent. Counsel’s fee be levied as per rules, if certified.