{"id":200609,"date":"2011-12-09T00:00:00","date_gmt":"2011-12-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramesh-rout-vs-rabindra-nath-rout-on-9-december-2011"},"modified":"2018-07-19T16:40:41","modified_gmt":"2018-07-19T11:10:41","slug":"ramesh-rout-vs-rabindra-nath-rout-on-9-december-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramesh-rout-vs-rabindra-nath-rout-on-9-december-2011","title":{"rendered":"Ramesh Rout vs Rabindra Nath Rout on 9 December, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramesh Rout vs Rabindra Nath Rout on 9 December, 2011<\/div>\n
Author: R Lodha<\/div>\n
Bench: R.M. Lodha, Jagdish Singh Khehar<\/div>\n
                                                                            REPORTABLE\n\n\n\n\n                  IN THE SUPREME COURT OF INDIA\n\n\n\n                    CIVIL APPELLATE JURISDICTION\n\n\n\n                    CIVIL  APPEAL NO. 4956 OF 2010\n\n\n\n\n\nRamesh Rout                                                     .... Appellant\n\n\n                                     Versus\n\n\nRabindra Nath Rout                                               ....Respondent\n\n\n                                      WITH\n\n\n\n                    CIVIL  APPEAL NO. 4962 OF 2010\n\n\n\n\n\n                                  JUDGMENT\n<\/pre>\n
R.M. Lodha, J.\n<\/p>\n<\/p>\n
              The   returned   candidate   —   Ramesh   Rout   –   whose <\/p>\n
election   to   the   14th  Orissa   Legislative   Assembly   from   89-Athagarh <\/p>\n
Assembly   Constituency     has   been   set   aside   by   the   High   Court   of  <\/p>\n
Orissa   has   preferred   these   two   appeals   under   Section   116A   read <\/p>\n
with Section 116C of the Representation of the People Act, 1951 (for <\/p>\n
short, `the 1951 Act’).\n<\/p>\n
                                                                                    1<\/span><\/p>\n
2.             The   Election   Commission   of   India   (for   short, <\/p>\n
`Commission’)   in   order     to   constitute   14th    Legislative   Assembly <\/p>\n
announced  general elections in the State of Orissa to be held in two <\/p>\n
phases     on   April   16,   2009   and   April   23,   2009.   Following   this,   the  <\/p>\n
Governor   of   the   State   of   Orissa   in   exercise   of   powers   conferred  <\/p>\n
under Section 5(2) of the 1951 Act issued   a notification which was  <\/p>\n
published   in   the   official   gazette   on   March   28,   2009.     The   89   –  <\/p>\n
Athagarh   Assembly   constituency   is   one   of   the   147   Assembly <\/p>\n
constituencies in the State of Orissa and is `General’ constituency.  <\/p>\n
The Commission  appointed the following schedule of election :<\/p>\n
               “28.3.2009  <\/p>\n
                        To<\/p>\n
               04.04.2009 =          Period   prescribed   for   filing   of <\/p>\n
                                     “NOMINATIONS”\n<\/p><\/blockquote>\n
               06.04.2009 =          date   fixed   for   SCRUTINY   OF \n\n                                     NOMINATIONS.\n\n               08.04.2009 =          last   date   for   WITHDRAWAL   OF \n\n                                     NOMINATIONS\n\n               23.04.2009 =          date of POLLING.\n\n               16.05.2009 =          date of COUNTING OF VOTES.\n\n               28.05.2009  =         date before which the Election \n\n                                     shall be completed.\"\n\n\n\n\n<\/pre>\n
3.             On April 4, 2009, at 11.25 A.M., the respondent in Civil <\/p>\n
Appeal   No.   4962   of   2010   –     Ranendra   Pratap   Swain     (hereinafter <\/p>\n
referred   to   as   `proposed   candidate’)   filed   four   sets   of     nomination  <\/p>\n
papers   for   89-Athagarh   Assembly   constituency   as   a   candidate   of <\/p>\n
                                                                                         2<\/span><\/p>\n
Biju Janata Dal (`BJD’) – a registered and recognized political party  <\/p>\n
in   the   State   of   Orissa     before   the   Returning   Officer.     Seven   other <\/p>\n
candidates including the present appellant also filed their nomination <\/p>\n
papers   at   the   said   election.   The   check   list   (ticked   original)   was <\/p>\n
issued   by  the   Returning   Officer   with   his   signature   to   the   proposed <\/p>\n
candidate   at   11.45   a.m.   A   copy   of   the   check   list   (ticked   duplicate)  <\/p>\n
was retained by the Returning Officer.\n<\/p><\/blockquote>\n
<\/blockquote>\n
4.             On   the   appointed   date   (i.e.   April   6,   2009)   and   time   for  <\/p>\n
scrutiny   of   nominations,   the   Returning   Officer   rejected   the <\/p>\n
nomination papers of the proposed candidate on the ground that the  <\/p>\n
Form A and Form B filed by the proposed candidate along with his  <\/p>\n
first   set   of   nomination   paper   were   not   duly   signed   in   ink   by   the  <\/p>\n
authorized officer of the political party (BJD).<\/p>\n
5.             Upset  with   the  order  of Returning  Officer  dated  April  6, <\/p>\n
2009,   rejecting   his   nomination,   the   proposed   candidate   filed   a   writ  <\/p>\n
petition before the Orissa High Court. However, the High Court did <\/p>\n
not   entertain   the   writ   petition   and   directed   him   to   pursue   his <\/p>\n
grievance   before   the   Commission   or   seek   appropriate   relief   after <\/p>\n
election   process   was   over.     The   proposed   candidate   raised   his <\/p>\n
grievance before the Commission but without any success. <\/p>\n
                                                                                           3<\/span><\/p>\n
6.            The   election   to   the   89-Athagarh   Assembly  constituency <\/p>\n
was held as per election schedule and the appellant who contested <\/p>\n
the election as an independent candidate was declared elected. <\/p>\n
7.            Two election petitions came to be filed before the Orissa <\/p>\n
High Court challenging the election of the appellant to 89-Athagarh <\/p>\n
Assembly   Constituency.   One   by   the   proposed   candidate   being <\/p>\n
Election   Petition   no.   4   of   2009   and   the   other   by   the   proposer   – <\/p>\n
respondent in Civil Appeal No. 4956 of 2010 being Election Petition  <\/p>\n
no. 6 of 2009. In both election petitions, the election of the appellant <\/p>\n
was   challenged   on   the   ground   of   improper   rejection   of   nomination <\/p>\n
papers   of   the   proposed   candidate.   It   was   averred   therein   that   the <\/p>\n
proposed candidate had filed Form A and Form B signed in ink by  <\/p>\n
the   authorized   person   along   with   first   set   of   nomination   paper <\/p>\n
showing that he had been duly sponsored by the BJD to contest as  <\/p>\n
a party nominee from 89-Athagarh Assembly constituency and with <\/p>\n
other three sets of nomination, he had filed xerox copies of original  <\/p>\n
Forms A and B duly authenticated by a Notary Public. The election  <\/p>\n
petitioners   raised   diverse   grounds   in   challenging   the   order   of   the <\/p>\n
Returning   Officer   dated   April   6,   2009   whereby   the   nomination  <\/p>\n
papers of the proposed candidate were rejected.   <\/p>\n
                                                                                       4<\/span><\/p>\n
8.             The   appellant   —   (respondent   therein)   –   contested   the <\/p>\n
election   petitions   by   filing   separate   written   statement.   He   raised <\/p>\n
objections about the maintainability of election petitions on facts and  <\/p>\n
in   law.   Inter   alia,   it   was   denied   that   the   proposed   candidate   filed  <\/p>\n
original Form-A and Form-B signed in ink by the authorized person  <\/p>\n
of BJD as at the time of scrutiny original Form A and Form B were <\/p>\n
not available and the Form A and Form B on record did not contain  <\/p>\n
ink signature.\n<\/p>\n<\/p>\n
9.             On   the   respective   pleadings   of   the   parties,   the   High <\/p>\n
Court initially framed four issues but later on framed additional issue <\/p>\n
no. 5. The relevant two issues, namely, issue no. 3 and issue no. 5  <\/p>\n
read as follows :\n<\/p>\n<\/p>\n
        “3.    Whether the Returning Officer improperly rejected the <\/p>\n
        nomination   of   the   Election   Petitioner   in   violation   of   the <\/p>\n
        statutory provisions and rules?\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
        5.     Whether the Returning Officer improperly rejected the <\/p>\n
        nomination   of   Sri   Ranendra   Pratap   Swain,   the   official <\/p>\n
        candidate of Biju Janata Dal in violation of the instructions <\/p>\n
        issued by the Election Commission of India in exercise of <\/p>\n
        its constitutional powers and the principles of natural justice <\/p>\n
        or not?”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
10.            The election petitioners as well as the returned candidate <\/p>\n
tendered oral and documentary evidence.   On behalf of the election <\/p>\n
petitioners, three witnesses, namely, proposer – Rabindra Nath Rout <\/p>\n
                                                                                          5<\/span><\/p>\n
(PW-1);   proposed   candidate   –   Ranendra   Pratap   Swain   (PW-2)   and <\/p>\n
authorised agent – Tarani Kanta Biswal (PW-3) were examined.  On  <\/p>\n
the   other   hand,   the   returned   candidate   examined   himself   as   RW-1 <\/p>\n
and   one   Magnicharan   Rout   as   (RW-2).   The   Returning   Officer   was  <\/p>\n
examined   by   the   Court   as   its   witness   (CW-1).   The   documents <\/p>\n
tendered in evidence were marked separate exhibits.<\/p>\n
11.           The High Court also called for all the original documents <\/p>\n
pertaining   to   the   scrutiny   of   nomination   papers   for  89-Athagarh <\/p>\n
Constituency   and   87-Badamba   Constituency.   We   shall   refer   to <\/p>\n
relevant documentary evidence appropriately wherever necessary. <\/p>\n
12.           The   High   Court   on   hearing   the   parties,   at   the   time   of <\/p>\n
decision   in   the   election   petitions,   framed   an   additional   issue   no.   6 <\/p>\n
namely, whether the election petitioner (proposed candidate) filed the <\/p>\n
original   Form   A   and   Form   B   duly   signed   in   ink   by   the   authorized  <\/p>\n
person   with   the   first   set   of   his   nomination   paper.   The   High   Court <\/p>\n
answered issue nos. 3, 5 and 6 in the affirmative and     allowed both <\/p>\n
election petitions on June 23, 2010 and declared the election of the <\/p>\n
appellant   null   and   void.   The   High   Court   declared   that   a   casual <\/p>\n
vacancy   is   created   relating   to   89-Athagarh   Assembly   Constituency <\/p>\n
and the Commission was directed to conduct fresh election in respect  <\/p>\n
of the said constituency in accordance with law.     <\/p>\n
                                                                                      6<\/span><\/p>\n
13.            It   is   from   this   judgment   that   these   two   appeals   have <\/p>\n
arisen.\n<\/p>\n<\/p>\n
14.            We   have   heard   Mr.   Gopal   Subramanian,   learned   senior <\/p>\n
counsel   for   the   appellant   and   Mr.   K.K.   Venugopal,   learned   senior  <\/p>\n
counsel for the proposed candidate.\n<\/p>\n<\/p>\n
15.            The   Returning   Officer   plays   an   important   role   in   the <\/p>\n
election management and to ensure that there is no scope left for any  <\/p>\n
complaint,   the   Commission   has   issued   a   handbook   for   Returning <\/p>\n
Officers (for short, `the handbook’)  The  handbook,  as it states, has  <\/p>\n
been designed to give to the Returning Officers the information and  <\/p>\n
guidance which they may need in performance of their   functions; to <\/p>\n
acquaint   them   with   up-to-date   rules   and   procedures   prescribed   for <\/p>\n
the   conduct   of   elections   and   to   ensure   that   there   is   no   scope   for  <\/p>\n
complaint   of   partiality   on   the   part   of   any   official   involved   in   the <\/p>\n
election management. We shall refer to the relevant provisions of the <\/p>\n
handbook   a   little   later.     The   handbook   does   not   have   statutory  <\/p>\n
character and is in the nature of guidance to the Returning Officers. <\/p>\n
16.            By   virtue   of   a   notification   dated   February   10,   2009 <\/p>\n
(Exhibit 10) issued by the Commission, for the first time, the issuance <\/p>\n
of   check   list   to   a   candidate   filing   nomination   paper   has   been  <\/p>\n
introduced. Prior thereto, there was no such provision. It is provided  <\/p>\n
                                                                                        7<\/span><\/p>\n
that   in   respect   of   each   candidate,   the   Returning   Officer   should  <\/p>\n
maintain,  in duplicate,  the  check  list of the documents\/requirements <\/p>\n
filed by the candidates.  When a candidate files nomination paper, the <\/p>\n
Returning Officer shall indicate in the second column of the check list  <\/p>\n
whether   the   concerned   documents   have   been   filed   or   other <\/p>\n
requirements fulfilled. If  any  of the documents has not been  filed, it <\/p>\n
requires   the   Returning   Officer   to   clearly   state   in   the   bottom   of   the <\/p>\n
check list, indicating the time limit by which such document\/s can be <\/p>\n
submitted.   The check list in two sets with all requirements indicated  <\/p>\n
is   needed   to   be   signed   by   the   Returning   Officer   as   well   as   the  <\/p>\n
candidate.   The   check   list   (marked   original)   is   handed   over   to   the <\/p>\n
candidate\/proposer   who   files   nomination   paper,   while   check   list <\/p>\n
(marked   copy)   is   retained   by   the   Returning   Officer.   The   notification  <\/p>\n
states  that  the  copy of  the  check  list  will  serve the  dual  purpose  of  <\/p>\n
acknowledging the receipt of the documents submitted as well as of  <\/p>\n
notices  as  directed   in  the  handbook.      It  is   further   provided  that  no  <\/p>\n
separate notice is required to be given to the candidate in respect of  <\/p>\n
the items mentioned in the check list. If and when a document is filed  <\/p>\n
subsequent to filing of nomination, an acknowledgment to that effect  <\/p>\n
is issued to the candidates, namely, mentioning the date and time at  <\/p>\n
which it is filed and this is also indicated in the appropriate place in <\/p>\n
                                                                                        8<\/span><\/p>\n
the check list retained by the Returning Officer. The proforma of the  <\/p>\n
check list has also been notified with the notification dated February <\/p>\n
10, 2009.\n<\/p>\n<\/p>\n
17.            Section   33   of   the   1951   Act   makes   provision   for <\/p>\n
presentation   of   nomination   paper   and   requirements   for   a   valid <\/p>\n
nomination.     To   the   extent   it   is   relevant   for   the   purposes   of   the  <\/p>\n
present case, it is reproduced as follows :\n<\/p>\n<\/p>\n
        “S. 33.  Presentation of nomination paper and requirements <\/p>\n
        for   a   valid   nomination.–(1)   On   or   before   the   date <\/p>\n
        appointed   under   clause   (a)   of   section   30   each   candidate <\/p>\n
        shall,   either   in   person   or   by   his   proposer,   between   the <\/p>\n
        hours of eleven o’ clock in the forenoon and three o’ clock <\/p>\n
        in the afternoon deliver to the returning officer at the place <\/p>\n
        specified   in  this  behalf   in  the   notice   issued   under   section <\/p>\n
        31   a   nomination   paper   completed   in   the   prescribed   form <\/p>\n
        and   signed   by   the   candidate   and   by   an   elector   of   the <\/p>\n
        constituency as proposer:\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
               xxx                   xxx                     xxx\n\n\n\n        (4)    On   the   presentation   of   a   nomination   paper,   the \n\n<\/pre>\n
        returning   officer   shall   satisfy   himself   that   the   names   and <\/p>\n
        electoral roll numbers of the candidate and his proposer as <\/p>\n
        entered   in   the   nomination   paper   are   the   same   as   those <\/p>\n
        entered in the electoral rolls:\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
               Provided   that   no  misnomer   or   inaccurate   description <\/p>\n
        or clerical, technical or printing error in regard to the name <\/p>\n
        of the candidate or his proposer or any other person, or in <\/p>\n
        regard to any place, mentioned  in the electoral roll or the <\/p>\n
        nomination paper and no clerical, technical or printing error <\/p>\n
        in regard to the electoral roll numbers of any such person <\/p>\n
        in the electoral roll or the nomination paper, shall affect the <\/p>\n
        full  operation   of  the  electoral  roll  or   the  nomination   paper <\/p>\n
        with respect to such person or place in any case where the <\/p>\n
                                                                                       9<\/span><\/p>\n
        description in regard to the name of the person or place is <\/p>\n
        such   as   to   be   commonly   understood;   and   the   returning <\/p>\n
        officer   shall   permit   any   such   misnomer   or   inaccurate <\/p>\n
        description   or   clerical,   technical   or   printing   error   to   be <\/p>\n
        corrected   and   where   necessary,   direct   that   any   such <\/p>\n
        misnomer,   inaccurate   description,   clerical,   technical   or <\/p>\n
        printing error in the electoral roll or in the nomination paper <\/p>\n
        shall be overlooked.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
               xxx                   xxx                     xxx”<\/p>\n
18.            Section   35   provides   for   notice   of   nominations   and   the <\/p>\n
time and place for their scrutiny.\n<\/p>\n<\/p>\n
19.            The provision concerning scrutiny of nomination is made <\/p>\n
in Section 36 of the 1951 Act. To the extent it is relevant, it reads as  <\/p>\n
follows :\n<\/p>\n<\/p>\n
        “S.   36.   Scrutiny  of  nomination.–(1)   On   the   date   fixed   for <\/p>\n
        the   scrutiny   of   nominations   under   section   30,   the <\/p>\n
        candidates,   their   election   agents,   one   proposer   of   each <\/p>\n
        candidate, and one other person duly authorized in writing <\/p>\n
        by each candidate but no other person, may attend at such <\/p>\n
        time   and   place   as   the   returning   officer   may   appoint;   and <\/p>\n
        the returning officer shall give them all reasonable facilities <\/p>\n
        for   examining   the   nomination   papers   of   all   candidates <\/p>\n
        which   have   been   delivered   within   the   time   and   in   the <\/p>\n
        manner laid down in section 33.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
               (2)    The   returning   officer   shall   then   examine   the <\/p>\n
        nomination   papers   and   shall   decide   all   objections   which <\/p>\n
        may be made to any nomination and may, either on such <\/p>\n
        objection   or   on   his   own   motion,   after   such   summary <\/p>\n
        inquiry,   if   any,   as   he   thinks   necessary,   reject   any <\/p>\n
        nomination on any of the following grounds:-<\/p>\n<\/blockquote>\n
       (a)     xxx                   xxx                     xxx\n\n\n\n       (b)     that there has been a failure to comply with any of the \n\n               provisions of section 33 or section 34; or \n\n\n                                                                                       10<\/span>\n\n\n       (c)           that the signature of the candidate or the proposer \n\n              on the nomination paper is not genuine.\n\n\n\n              xxx                     xxx                     xxx\n\n\n\n              (4)       The   returning   officer   shall   not   reject   any \n\n<\/pre>\n
       nomination paper on the ground of any defect which is not <\/p>\n
       of a substantial character.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
              (5)       The  returning   officer  shall  hold   the  scrutiny  on <\/p>\n
       the date appointed in this behalf under clause (b) of section <\/p>\n
       30 and shall not allow any adjournment of the proceedings <\/p>\n
       except when such proceedings are interrupted or obstructed <\/p>\n
       by riot or open violence or by causes beyond his control:<\/p>\n<\/blockquote>\n
              Provided   that   in   case   an   objection   is   raised   by   the <\/p>\n
       returning   officer   or   is   made   by   any   other   person   the <\/p>\n
       candidate   concerned   may   be   allowed   time   to   rebut   it   not <\/p>\n
       later than the next day but one following  the date fixed for <\/p>\n
       scrutiny,   and   the   returning   officer   shall   record   his   decision <\/p>\n
       on the date to which the proceedings have been adjourned.<\/p>\n<\/blockquote>\n
              xxx                     xxx                     xxx”<\/p>\n
20.           The   Conduct   of   Elections   Rules,   1961   (for   short,   `1961 <\/p>\n
Rules’) have been framed under the 1951 Act. Rule 4 provides that <\/p>\n
every   nomination   paper   presented   under   sub-section   (1)   of   Section <\/p>\n
33 shall be completed in such one of the  Forms 2A to 2E as may be <\/p>\n
appropriate.     Proviso   that   follows   Rule   4   makes   a   provision   that   a  <\/p>\n
failure   to   complete   or   defect   in   completing,   the   declaration   as   to <\/p>\n
symbols in a nomination paper in Form 2A or Form 2B shall not be <\/p>\n
                                                                                         11<\/span><\/p>\n
deemed to be a defect of substantial character within the meaning of <\/p>\n
sub-section (4) of Section 36.\n<\/p>\n<\/p>\n
21.            Form   2B   under   Rule   4   is   in   three   parts.   Part-I   is   to   be  <\/p>\n
used by a candidate set up by a recognised political party. Part-II is  <\/p>\n
required   to   be   filled   by   a   candidate   for   election   to   the   legislative <\/p>\n
assembly   not   set   up   by   a   recognised   political   party   and   it   provides <\/p>\n
that   there   should   be   ten   electors   of   the   constituency   as   proposers.  <\/p>\n
Part-III   of   Form   2B   is   a   declaration   to   be   made   by   the   candidate  <\/p>\n
giving   assent   to   his   nomination.   Clause   (b)(i)   is   applicable   to   a <\/p>\n
candidate who has been set up by a recognised political party with a  <\/p>\n
request that symbol reserved for such party be allotted to him. Clause  <\/p>\n
(b)(ii),   on the other hand is applicable to a candidate not set up by <\/p>\n
any   registered   recognised   political   party   or   a   candidate   who   is <\/p>\n
contesting   the   election   as   an   independent   candidate.   A   recognised <\/p>\n
political party means a political party recognised by the Commission <\/p>\n
under the 1968 Order.\n<\/p>\n<\/p>\n
22.            Rule 5 of the 1961 Rules makes a provision for symbols  <\/p>\n
for elections in parliamentary and assembly constituencies.  Rule 10 <\/p>\n
of   1961   Rules   provides   for   preparation   of   list   of   contesting  <\/p>\n
candidates.\n<\/p>\n
                                                                                            12<\/span><\/p>\n
23.             In exercise of the powers conferred by Article 324 of the <\/p>\n
Constitution of India read with Section 29A of the 1951 Act and Rules <\/p>\n
5 and 10 of the 1961 Rules, the Commission made Election Symbols <\/p>\n
(Reservation   and   Allotment)   Order,   1968   (for   short   `1968   Order’). <\/p>\n
Unregistered   political   parties   are   out   of   its   purview.   The   registered <\/p>\n
recognized   and   unrecognized   political   parties   and   independent <\/p>\n
candidates are dealt with by the 1968 Order. 1968 Order came to be  <\/p>\n
amended   by   notification   no.   56\/2000\/Judl.   III   dated   1st  December, <\/p>\n
2000. Para 13 of the 1968 Order is relevant for consideration of the  <\/p>\n
present matter. It reads as follows :\n<\/p>\n<\/p>\n
        “13.  When a candidate shall be deemed to be set up by a <\/p>\n
        political   party.–For   the   purposes   of   an   election   form   any <\/p>\n
        Parliamentary   or   Assembly   Constituency   to   which   this <\/p>\n
        Order applies, a candidate shall be deemed to be set up by <\/p>\n
        a   political   party   in   any   such   Parliamentary   or   Assembly <\/p>\n
        Constituency, if, and only if–\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (a) the   candidate   has   made   the   prescribed   declaration   to <\/p>\n
                this effect in his nomination paper,<\/p>\n
        (aa) the candidate  is  a member  of that political  party and <\/p>\n
                his   name   is   borne   on   the   rolls   of   members   of   the <\/p>\n
                party;\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (b)     a notice by the political party in writing in Form B, to <\/p>\n
                that effect has, not later than 3.p.m. on the last date <\/p>\n
                for   making   nominations,   been   delivered   to   the <\/p>\n
                Returning Officer of the constituency;\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (c)     the said notice in Form B is signed by the President, <\/p>\n
                the Secretary or any other office-bearer of the party, <\/p>\n
                and   the   President,   Secretary   or   such   other   office <\/p>\n
                bearer sending the notice has been authorised by the <\/p>\n
                party to send such notice;\n<\/p><\/blockquote>\n
                                                                                         13<\/span><\/p>\n<\/blockquote>\n
        (d)     the name and specimen signature of such authorised <\/p>\n
                person are communicated by the party, in Form A, to <\/p>\n
                the   Returning   Officer   of   the   constituency   and   to   the <\/p>\n
                Chief  Election   Officer  of  the  State   or  Union  Territory <\/p>\n
                concerned,  not later than 3 p.m. on the last date  for <\/p>\n
                making nominations; and<\/p>\n<\/blockquote>\n
        (e)     Forms   A   and   B   are   signed,   in   ink   only,   by   the   said <\/p>\n
                office-bearer or person authorised by the party:<\/p>\n
                Provided   that   no   fascimile   signature   or   signature   by <\/p>\n
                means of rubber stamp, etc. of any such office bearer <\/p>\n
                or  authorised  person  shall   be  accepted  and   no  form <\/p>\n
                transmitted by fax shall be accepted.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
24.             Chapter   VI   of   the   handbook   deals   with   the   scrutiny   of <\/p>\n
nominations   by   the   Returning   Officer.   Para   2   emphasises     that <\/p>\n
scrutiny  of  nomination  papers   is  an  important  quasi-judicial   function <\/p>\n
and   the   Returning   Officer   has   to   discharge   this   duty   with   complete <\/p>\n
judicial   detachment   and   in   accordance   with   the   highest   judicial <\/p>\n
standards. Para 6 provides that even if no objection has been raised <\/p>\n
to   a   nomination   paper,   the   Returning   Officer   has   to   satisfy   himself  <\/p>\n
that the nomination paper is valid in law. If any objection is raised to  <\/p>\n
any nomination paper, the Returning Officer has to hold a summary <\/p>\n
inquiry to decide the same and treat the nomination paper to be either <\/p>\n
valid or invalid. It states that brief reasons in support of the decision <\/p>\n
must be set out, particularly, where an objection has been raised or  <\/p>\n
the   nomination   paper   has   been   rejected.   Para   7   provides   for  <\/p>\n
presumption of validity of every nomination paper unless the contrary  <\/p>\n
                                                                                             14<\/span><\/p>\n
is prima facie obvious or has been made out. In case of a reasonable <\/p>\n
doubt,   as   to   the   validity   of   a   nomination   paper,   the   benefit   of   such  <\/p>\n
doubt must go to the candidate concerned and the nomination paper  <\/p>\n
should   be   held   to   be   valid.   Para   7   seeks   to   remind   the   Returning <\/p>\n
Officer   that   whenever   a   candidate’s   nomination   paper   is   improperly <\/p>\n
rejected and he is prevented from contesting the election, there is a <\/p>\n
legal presumption that the result of the election has been materially <\/p>\n
affected by such improper rejection and the election is liable to be set  <\/p>\n
aside.     Para 9.6 sets out some of the defects which may be treated <\/p>\n
by the Returning Officer as defects of substantial nature.  It, inter alia,  <\/p>\n
provides   that   failure   to   submit   written   authorisation   form   from   the <\/p>\n
political party, within prescribed time and in prescribed form, where a <\/p>\n
candidate claims to have been set up by a national or state party, is a  <\/p>\n
defect of substantial nature. Para 10.3 says that the nomination paper <\/p>\n
filed   by   a   candidate   claiming   to   have   been   set   up   by   a   recognised <\/p>\n
national\/state party subscribed by only an elector as proposer is liable <\/p>\n
to   be   rejected,   if   a   notice   in   writing   to   that   effect   has   not   been <\/p>\n
delivered   to   the   Returning   Officer   of   the   Constituency   by   an <\/p>\n
authorised   office-bearer   of   that   political   party   by   3   p.m.   on   the   last <\/p>\n
date   for   making   nominations   in   Forms   A   and   B   devised   by   the  <\/p>\n
Commission for the purpose under para 13 of the 1968 Order.<\/p>\n
                                                                                          15<\/span><\/p>\n
25.            In light of the above provisions, particularly Sections 33(1) <\/p>\n
and 36(1) of the 1951 Act, Rule 4 of the 1961 Rules, Part-III of Form  <\/p>\n
2B, para 13(e) of the 1968 Order and Forms A and B appended to <\/p>\n
1968 Order and the guidelines issued to the Returning Officers in the <\/p>\n
handbook,     Mr.   Gopal   Subramanian,   learned   senior  counsel   for   the <\/p>\n
appellant   submitted   that     where   a   candidate   for   the   election   to <\/p>\n
Assembly has been set up by a recognised political party, the filing of  <\/p>\n
original  Forms A and B duly signed in ink by an authorised person of <\/p>\n
such political party is  non-negotiable and non-filing of original Forms <\/p>\n
A   and   B   signed   in   ink   constitutes   a   defect   of   substantial   nature.  <\/p>\n
Learned senior counsel argued that proviso to Rule 4 carves out an <\/p>\n
exception in respect of declaration in relation to symbol by candidates <\/p>\n
of   unrecognised   political   party   and   independent   candidates   as   per  <\/p>\n
clause   (b)(ii)   of   Part-III   of   Form   2-B   and   has   no   application   to   the  <\/p>\n
case of a candidate belonging to a recognised political party who has  <\/p>\n
to make a declaration as required by clause(b)(i) thereof. According <\/p>\n
to Mr. Gopal Subramanian, the proviso appended to Rule 4 and para  <\/p>\n
13 of the 1968 Order operate in completely different fields without any <\/p>\n
overlap or conflict.   He vehemently contended that the present case  <\/p>\n
squarely   falls   under   Section   36(2)(b)   of   the   1951   Act   for   failure   to <\/p>\n
comply   with   the   requirement   of     nomination   paper   completed   in  <\/p>\n
                                                                                          16<\/span><\/p>\n
prescribed   form.     He   would   argue   that   the   nomination   having   been <\/p>\n
subscribed by one proposer, basing on the declaration given by the  <\/p>\n
election   petitioner,   it   is   intrinsic   mandatory   requirement   of   the   1968  <\/p>\n
Order that ink signed Forms A and B were filed prior to 3 P.M.  on the <\/p>\n
last date of making nomination  so as to sustain the declaration of the  <\/p>\n
candidate having been set up by a recognised political party.  <\/p>\n
26.               On   the   other   hand,   Mr.   K.K.   Venugopal,   learned   senior <\/p>\n
counsel for the proposed candidate contended that   Section 36(4) of  <\/p>\n
the 1951 Act read with proviso to Rule 4 of the 1961 Rules and  Form  <\/p>\n
2 B (Part III) would make the filing of xerox copy of Form A and Form  <\/p>\n
B permissible (assuming that xerox copy of Form A and Form B were <\/p>\n
filed only) and cannot form the basis of the rejection of the nomination <\/p>\n
paper.   He   submitted  that  failure   to   file  original   Form   A and  Form  B <\/p>\n
signed   in   ink   was   not   defect   of   a   substantial   character   within   the  <\/p>\n
meaning   of   Section   36(4)   of   the   1951   Act.   According   to   him,   para <\/p>\n
13(e) of the 1968 Order that states “Forms A and B are signed, in ink <\/p>\n
only,  by the said office bearer or person authorised by the party”  is <\/p>\n
only an expression of hope and is not mandatory as it does not use  <\/p>\n
the   expression   `shall   be   signed’.   He   referred   to   a   decision   of   this <\/p>\n
Court in the case of Jagan Nath v. Jaswant Singh & Ors.1<\/a> in support <\/p>\n
of   his   submission   that   the   election   law   is   technical   and   unless  <\/p>\n
1 1954 SCR 892<\/p>\n
                                                                                      17<\/span><\/p>\n
express provision is found, one cannot read the word “are” as “shall”. <\/p>\n
With reference to Section 33(1) of the 1951 Act, Mr. Venugopal would  <\/p>\n
submit   that   the   expression   “a   nomination   paper   completed   in   the  <\/p>\n
prescribed form and signed by the candidate and by an elector of the  <\/p>\n
constituency as proposer” did not require the nomination paper to be <\/p>\n
accompanied   by   specified   documents.   Rule   4   of   the   1961   Rules <\/p>\n
deals   with   the   nomination   paper   while   para   13   of   the   1968   Order <\/p>\n
deals   with   the   political   party’s   authorisation.     The   two   are   separate  <\/p>\n
and distinct and para 13 of 1968 Order cannot be read into Rule 4 of  <\/p>\n
the 1961 Rules.\n<\/p>\n<\/p>\n
27.           Mr.   K.K.   Venugopal,   learned   senior   counsel   submitted <\/p>\n
that neither Section 33 nor Section 34 of the 1951 Act required that  <\/p>\n
the   nomination   should   be   accompanied   by   the   sponsorship   or <\/p>\n
authorisation of a  political  party.  Section  36(2)  of  the  1951  Act sets <\/p>\n
out the grounds on which nomination paper can be rejected. Neither <\/p>\n
clause   (a)   which   deals   with   qualifications   and   disqualifications   nor  <\/p>\n
clause   (b)   that   deals   with   failure   to   comply   with   Section   33   nor <\/p>\n
Section 34 or clause (c) which deals with signature of the candidate  <\/p>\n
or his proposer is relevant to the present controversy.<\/p>\n
28.           On the above contentions, the question presented for our <\/p>\n
consideration is,  whether it is mandatory for a candidate set up by a  <\/p>\n
                                                                                      18<\/span><\/p>\n
recognised   political   party   to   file   original   ink   signed   Forms   A   and   B <\/p>\n
appended to para 13 of the 1968 Order.\n<\/p>\n<\/p>\n
29.            Before we consider the above question, it is important to <\/p>\n
recapitulate   the   general   rule   relating   to   election   law   stated   by   the <\/p>\n
Constitution   Bench   of   this   Court   in   the   case   of  Jagan   Nath1.   This <\/p>\n
Court (at page 895) stated :\n<\/p>\n<\/p>\n
        “The   general   rule   is   well   settled   that   the   statutory <\/p>\n
        requirements of election law must be strictly observed and <\/p>\n
        that an election contest is not an action at law or a suit in <\/p>\n
        equity but is a purely statutory proceeding unknown to the <\/p>\n
        common law and that the court possesses no common law <\/p>\n
        power.  It is also well settled that it is a sound principle of  <\/p>\n
        natural   justice   that   the   success   of   a   candidate   who   has <\/p>\n
        won at an election should not be lightly interfered with and <\/p>\n
        any petition seeking such interference must strictly conform <\/p>\n
        to the requirements of the law. None of these propositions, <\/p>\n
        however,   have   any   application   if   the   special   law   itself <\/p>\n
        confers authority on a tribunal to proceed with a petition in <\/p>\n
        accordance   with   certain   procedure   and   when   it   does   not <\/p>\n
        state   the   consequences   of   non-compliance   with   certain <\/p>\n
        procedural requirements laid down by it. It is always to be <\/p>\n
        borne   in   mind   that   though   the   election   of   a   successful <\/p>\n
        candidate   is   not   to   be   lightly   interfered   with,   one   of   the <\/p>\n
        essentials of that law is also to safeguard the purity of the <\/p>\n
        election   process   and   also   to   see   that   people   do   not   get <\/p>\n
        elected   by   flagrant   breaches   of   that   law   or   by   corrupt <\/p>\n
        practices.   In   cases   where   the   election   law   does   not <\/p>\n
        prescribe   the   consequence   or   does   not   lay   down   penalty <\/p>\n
        for non-compliance with certain procedural requirements of <\/p>\n
        that   law,   the   jurisdiction   of   the   tribunal   entrusted   with   the <\/p>\n
        trial of the case is not affected.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
30.            Section 33 of the 1951 Act enacts that a candidate shall <\/p>\n
file   nomination   paper   on   or   before   the   appointed   date   in   the  <\/p>\n
                                                                                            19<\/span><\/p>\n
prescribed   form.     The   form   in   which   nomination   paper   shall   be <\/p>\n
presented   and   completed   is   provided   in   Rule   4   of   the   1961   Rules. <\/p>\n
According to Rule 4,   every nomination paper presented under sub-<\/p>\n
section (1) of Section 33 shall be completed in such one of the forms <\/p>\n
2-A   to   2-E,   as   may   be   appropriate.   Proviso   that   follows   Rule   4 <\/p>\n
provides   that   a   failure   to   complete   or   defect   in   completing,   the <\/p>\n
declaration as to symbols in  a nomination paper in Form 2-A or Form  <\/p>\n
2-B shall not be deemed to be a defect of substantial character within  <\/p>\n
the   meaning   of   Section   36(4)   of   1951   Act.   The   controversy   in   the  <\/p>\n
present case relates to a candidate set up by a recognised political <\/p>\n
party of  the  State  and,  therefore,  the  relevant  form  in  this  regard  is <\/p>\n
Form   2-B.   Form   2-B   is   in   three   parts.     Part-II   is   not   relevant   and, <\/p>\n
therefore,   it   is   not   necessary   to   refer   to   that.   Part-I   and   Part-III   of <\/p>\n
Form 2-B are relevant. Part-I of Form 2-B is required to be completed  <\/p>\n
by a candidate set up by a recognised political party. Part-III of Form  <\/p>\n
2-B is a declaration to be made by the candidate giving assent to his <\/p>\n
nomination.   The   candidate   is   required   to   declare,   in   case   of   a <\/p>\n
candidate   set   up   by   a   recognised   State   party   in   terms   of   para   b(i), <\/p>\n
“that   I   am   set   up   at   this   election   by   the   ………party,   which   is  <\/p>\n
recognised national party\/state party in this State and that the symbol  <\/p>\n
reserved for the above party be allotted to me”. Para b (ii) of Part-III is  <\/p>\n
                                                                                            20<\/span><\/p>\n
applicable   to   a   candidate   set   up   by   any   registered   unrecognised <\/p>\n
political   party   or   a   candidate   who   is   contesting   the   election   as   an  <\/p>\n
independent candidate.  A plain reading of proviso that follows Rule 4 <\/p>\n
leaves   no   manner   of   doubt   that   a   failure   to   complete   or   defect   in <\/p>\n
completing,   the   declaration   as   to   symbols   in   a   nomination   paper   in <\/p>\n
Form 2A or Form 2B by a candidate set up by a recognised political  <\/p>\n
party or a candidate set up by registered unrecognised political party <\/p>\n
or a candidate who seeks to contest the election as an independent  <\/p>\n
candidate   is   not   a   defect   of   substantial   nature.   It   is   not   possible   to <\/p>\n
catalogue defects contemplated by the proviso. However, to illustrate <\/p>\n
the   few;   wrong   description   of   symbol,   omission   to   fill   blank   space  <\/p>\n
given in proforma in respect of choice of symbols, selecting a symbol  <\/p>\n
which   is   reserved,   etc.,   fall   in   the   category   of   defects   not   of   a <\/p>\n
substantial character. We are fortified in our view by a decision of this <\/p>\n
Court   in  Krishna   Mohini   (Ms)  v.  Mohinder   Nath   Sofat2<\/a>  wherein   this <\/p>\n
Court said in para 32 (Pg. 159) :\n<\/p>\n<\/p>\n
         “32.  Though   Rule   4   of   the   Conduct   of   Elections   Rules <\/p>\n
         requires   every   nomination   paper   presented   under   sub-<\/p><\/blockquote>\n
         section (1) of Section 33 to be complete in such one of the <\/p>\n
         Forms 2-A to 2-E as may be appropriate and, therefore, the <\/p>\n
         blank  space meant  for  showing  three  symbols  in order   of <\/p>\n
         preference as symbols of the candidate’s choice, has to be <\/p>\n
         filled   in;   however,   non-filling   of   the   space   as   to   choice   of <\/p>\n
         symbol   is   not   a   defect   of   a   substantial   character.   Such <\/p>\n
         deficiency in the nomination paper is saved by the proviso <\/p>\n
         to   Rule   4   of   the   Conduct   of   Elections   Rules,   1961   which <\/p>\n
2  (2000) 1 SCC 145<\/p>\n
                                                                                              21<\/span><\/p>\n
        provides that failure to complete or defect in completing the <\/p>\n
        declaration as to symbols in a nomination paper  shall not <\/p>\n
        be deemed to be a defect of a substantial character within <\/p>\n
        the meaning of sub-section (4) of Section 36. Choosing a <\/p>\n
        wrong symbol, leaving blank the space meant for filling the <\/p>\n
        choice of symbols and an error in describing the symbol — <\/p>\n
        are   all   defects   not   of   a   substantial   character.   An <\/p>\n
        independent candidate may mention as his preference the <\/p>\n
        symbol   reserved   for   a   recognised   political   party,   but   that <\/p>\n
        again   will   not   be   a   defect   of   a   substantial   character. <\/p>\n
        Dealing with such cases, this Court has held in K.S. Abdul  <\/p>\n
        Azeez  v.  Ramanathan Chettiar (AIR<\/a> 1967 SC 85) that the <\/p>\n
        question   of   symbols   should   not   play   an   important   part <\/p>\n
        because   symbols   can   be   assigned   by   political   parties   till <\/p>\n
        the date for withdrawal and nomination paper should not be <\/p>\n
        cancelled, on this ground, during the interval.”<\/p>\n
31.           The applicability of proviso that follows Rule 4, however, <\/p>\n
is   limited   to   defect   in   the   declaration   as   to   symbol   made   by   a <\/p>\n
candidate in Form 2-A or 2-B appended to 1961 Rules. Its operation <\/p>\n
does   not   extend   to   the   defects   in   forms   required   to   be   filled   or  <\/p>\n
completed   by   a   candidate   set   up   by   a     recognised   political   party <\/p>\n
under 1968 Order or non-fulfilment of requirements set out in clauses <\/p>\n
(a) to (e) of para 13 of the 1968 Order.\n<\/p>\n<\/p>\n
32.           1968 Order has been made by the Commission to provide <\/p>\n
for   specification,   reservation,   choice   and   allotment   of   symbols   of <\/p>\n
elections   in   Parliamentary   and   Assembly   Constituencies   for   the <\/p>\n
registered   political   parties   (recognised   or   unrecognised)   and   the <\/p>\n
independent candidates. Para 13 provides in unmistakable terms that <\/p>\n
for a candidate  to  be considered to have been  set up by a  political  <\/p>\n
                                                                                       22<\/span><\/p>\n
party in a parliamentary or assembly constituency, he has to comply <\/p>\n
with  the conditions set out in clauses (a) to (e) thereof.   In   Krishna  <\/p>\n
Mohini (Ms)2, this Court held that in order to be a candidate set up by <\/p>\n
a registered and recognised political party so as to take advantage of  <\/p>\n
being proposed by a single elector, all the four requirements set out  <\/p>\n
in   clauses   (a),   (b),   (c)   and   (d)   of   para   13   of   1968   Order   must   be <\/p>\n
satisfied.   The   Court   went   on   to   say   that   if   any   one   or   more   of   the <\/p>\n
requirements   are   not   satisfied,   the   benefit   of   nomination   being <\/p>\n
proposed   by   a   single   elector   is   not   available   to   him.   Clause   (e)   of <\/p>\n
para   13   of   the   1968   Order   is   equally   important.   It   reads,   “Forms   A  <\/p>\n
and   B   are   signed,   in   ink   only,   by   the   said   office-bearer   or   person  <\/p>\n
authorised   by   the   party”.   Proviso   appended   to   para   13   makes   a <\/p>\n
provision that no facsimile signature or signature by means of rubber  <\/p>\n
stamp,   etc.   of   any   such   office-bearer   or   authorised   person   shall   be <\/p>\n
accepted and no form transmitted by fax shall be accepted. In other  <\/p>\n
words,   for   a   candidate,   proposed   by   a   single   elector   alone,   to   be  <\/p>\n
treated as a candidate set up by a recognised political party, the filing  <\/p>\n
of notice and communication in Forms A and B referable to clauses <\/p>\n
(b), (c) and (d) and in accord with clause (e) of para 13 of the 1968 <\/p>\n
Order is essential and on its non-compliance, the nomination of such  <\/p>\n
candidate is liable to be rejected.\n<\/p>\n
                                                                                           23<\/span><\/p>\n
33.            That clause (e) of para 13, 1968 Order does not use the <\/p>\n
expression “shall be signed” is obvious from the bare reading of the <\/p>\n
provision   but   the   significance   of   the   word   “only”   therein   cannot   be <\/p>\n
ignored.\n<\/p>\n<\/p>\n
34.            In   Concise   Oxford   English   Dictionary   (Tenth   Edition, <\/p>\n
Revised), the word `only’ is explained :\n<\/p>\n<\/p>\n
        Only  adv. 1 and no one or nothing more besides.. . . . . . <\/p>\n
         adj.  alone of its or their kind; single or solitary. . . . . . . .  <\/p>\n
35.            In   Webster   Comprehensive   Dictionary,   International <\/p>\n
Edition (Volume Two), the word `only’ is defined thus :<\/p>\n
        Only (n’l)  adv.  . . . .  . . .   2   In  one  manner  or for  one <\/p>\n
        purpose alone. . . . . .  4 Solely; merely; exclusively: limiting <\/p>\n
        a statement to a single defined person, thing, or number. – <\/p>\n
        adj.  1  Alone   in   its   class;   having   no   fellow   or   mate;   sole; <\/p>\n
        single; solitary:\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
36.            The word `only’ is ordinarily used as an exclusionary term. <\/p>\n
In the American case of Henry R. Towne v. Mark Eisner (245 US 418 <\/p>\n
at   425),   the   court   said,   “A   word   is   not   a   crystal,   transparent   and <\/p>\n
unchanged;   it is the skin of a living thought and may vary greatly in  <\/p>\n
colour   and   content   according   to   the   circumstances   and   the   time   in  <\/p>\n
which  it is used”. In ascertaining the meaning of the word  `only’,  its  <\/p>\n
placement is material and so also the context in which the word  has  <\/p>\n
been used.   The use of the word `only’ in clause (e), para 13, 1968 <\/p>\n
                                                                                           24<\/span><\/p>\n
Order emphasises that Forms A and B are to be signed in ink by the  <\/p>\n
office bearer or person authorised by the recognised party and in no <\/p>\n
other way. Thus, it excludes any other mode of filing Forms A and B <\/p>\n
when   a   candidate   is   set   up   by   a   recognised   political   party.   In   our <\/p>\n
view,   therefore,   the   word   `only’   used   in   clause   (e)   of   para   13   is  <\/p>\n
indicative of the mandatory character of that provision.<\/p>\n
37.            Where   a   candidate   is   set   up   by     a   recognised   political <\/p>\n
party,   clause   (b)(i),   Part-III   of   Form   2-B   becomes   relevant   as   by <\/p>\n
making   declaration   therein   the   candidate   makes   a   request   that <\/p>\n
symbol reserved for such party be allotted to him. It is for this reason <\/p>\n
that the requirements of para 13 of the 1968 Order become integral <\/p>\n
part   of   Form   2-B,   Part-III   under   Rule   4   of   the   1961   Rules   where   a  <\/p>\n
candidate is set up by a recognised political party.  We are unable to <\/p>\n
accept   the   submission   of   Mr.   K.K.   Venugopal     that   para   13   of   the <\/p>\n
1968   Order   cannot   be   read   into   Rule   4.   Non-compliance   of <\/p>\n
requirements of para 13 of the 1968 Order, in our view, is a defect of  <\/p>\n
substantial   character   and   the   nomination   paper   of   a   candidate <\/p>\n
proposed   by   a   single   elector   set   up   by   a   recognised   political   party <\/p>\n
having such defect is liable to be rejected under Section 36(2)(b) as it <\/p>\n
tantamounts   to   non-compliance   of   the   provisions   of   Section   33, <\/p>\n
                                                                                         25<\/span><\/p>\n
namely,   the   nomination   paper   having   not   been   completed   in   the <\/p>\n
prescribed form.\n<\/p>\n<\/p>\n
38.            The   proposed   candidate   admittedly   filed   his   nomination <\/p>\n
paper   proposed   by   a   single   elector   having   been   set   up   by   BJD,   a  <\/p>\n
recognised political party in the State of Orissa, and, therefore, it was  <\/p>\n
incumbent   upon     him   that   the   requirements   of   para   13   of   the   1968  <\/p>\n
Order were fully complied with. In other words, it was necessary for <\/p>\n
the proposed candidate that Forms A and B referable to clauses (b),  <\/p>\n
(c) and (d) of para 13, 1968 Order were submitted to the Returning  <\/p>\n
Officer duly signed in ink by the authorised person of BJD not later <\/p>\n
than 3.00 p.m. on April 4, 2009.\n<\/p>\n<\/p>\n
39.            Having   held   so,   the   other   questions   that   need   to   be <\/p>\n
considered by us in these appeals are, whether the High Court erred <\/p>\n
in framing issue no. 6 at the time of decision in the election petitions, <\/p>\n
i.e., whether the election petitioner Ranendra Pratap Swain filed the  <\/p>\n
original   Form-A   and   Form-B   being   duly   signed   in   ink   by   the <\/p>\n
authorised person with the first set of his nomination and whether the  <\/p>\n
finding   recorded   by   the   High   Court   on   that   issue   suffers   from   any <\/p>\n
illegality.\n<\/p>\n<\/p>\n
40.            The pleadings of the parties as well as the evidence let in <\/p>\n
by them clearly show that the parties were seriously in issue whether  <\/p>\n
                                                                                     26<\/span><\/p>\n
the original Form-A and Form-B duly signed in ink by the authorised <\/p>\n
person of BJD were filed by the proposed candidate with the first set  <\/p>\n
of   his   nomination   paper.   The   election   petitioners   (in   both   election <\/p>\n
petitions)   asserted   that   the   proposed   candidate   had   filed   original <\/p>\n
Forms A and B duly signed in ink by Shri Navin Patnaik (authorised <\/p>\n
person of BJD) before the Returning Officer on April 4, 2009 at the <\/p>\n
time  of  presentation  of  nomination  paper   and   check   list  was  issued <\/p>\n
acknowledging   receipt   of   these   forms.     The   returned   candidate <\/p>\n
disputed   the   said   assertion   made   in   the   election   petitions.   The <\/p>\n
evidence   of   the   Returning   Officer,   who   was   examined   as   court <\/p>\n
witness  no. 1, and his cross-examination on behalf of the proposed  <\/p>\n
candidate   as   well   as   the   returned   candidate   also   indicate   that   the  <\/p>\n
factual   controversy   in   the   election   petitions   centered   around   on   the <\/p>\n
filing   of   the   original   Form-A   and   Form-B   duly   signed   in   ink   by   the <\/p>\n
authorised person of BJD with the first set of his nomination. It follows  <\/p>\n
that by framing issue no. 6 at the time of final decision of the election <\/p>\n
petitions, no prejudice has been caused to the returned candidate. As  <\/p>\n
a   matter   of   fact,   no   ground   of   prejudice   has   been   raised   in   the <\/p>\n
appeals nor such argument was advanced before us by the learned <\/p>\n
senior counsel for the returned candidate. We, accordingly, hold that <\/p>\n
the High Court did not commit any error in framing issue no. 6 which <\/p>\n
                                                                                       27<\/span><\/p>\n
was quite vital and material for decision in the election petitions. We <\/p>\n
further   hold   that   no   prejudice   has   been   caused   to   the   returned  <\/p>\n
candidate by framing such additional issue at the time of the decision  <\/p>\n
in the election petitions.\n<\/p>\n<\/p>\n
41.           The   proposed   candidate   PW-2   deposed   that   he   had <\/p>\n
contested Orissa Assembly Elections held in 1990, 1995, 2000 and <\/p>\n
2004   from   89-Athagarh   Constituency   and   had   won   all   these   four <\/p>\n
elections.   While   giving   the   details   of   nomination   papers   and   the <\/p>\n
documents   presented   personally   by   him   on   April   4,   2009   at   11.25 <\/p>\n
a.m., he stated that in the first set of nomination, Rabindra Nath Rout  <\/p>\n
(PW-1)  was   the   proposer   and   along   with   the   first  set   of   nomination <\/p>\n
paper,   original   Form-A   and   Form-B   signed   in   ink   by   Shri   Naveen <\/p>\n
Patanaik, President and the authorised signatory of BJD  were  filed.  <\/p>\n
He   deposed  that  he  had  presented   four  sets   of   nominations   as  the  <\/p>\n
nominee of BJD for 89-Athagarh Assembly Constituency and all his <\/p>\n
four   sets   of   nominations   were   complete   in   all   respect.   He   also  <\/p>\n
deposed   that   immediately   after   he   presented   four   sets   of <\/p>\n
nominations, as a nominee of BJD, the Returning Officer asked him  <\/p>\n
to   take   oath   before   him   and   he,   accordingly,   took   oath   before   the  <\/p>\n
Returning   Officer.   From   11.25   a.m.   to   11.45   a.m.,   the   Returning <\/p>\n
Officer examined the four sets of nominations presented by him and  <\/p>\n
                                                                                     28<\/span><\/p>\n
thereafter the Returning Officer personally prepared the check list of  <\/p>\n
documents;   put   his   signature   on   that   and   asked   him   (proposed <\/p>\n
candidate)   to   sign   on   the   said   documents.   The   Returning   Officer <\/p>\n
retained with him one of such check list ticked duplicate   (Ex. 22) and <\/p>\n
handed over  another  to  him  (proposed  candidate)  ticked  original  <\/p>\n
(Ex. 11).\n<\/p>\n<\/p>\n
42.           The   deposition   of   the   proposer–Rabindra   Nath   Rout <\/p>\n
(PW-1) is not of much help as he has stated that he was not present  <\/p>\n
in   the   office   room   of   the   Returning   Officer   when   the   proposed <\/p>\n
candidate filed his nomination.\n<\/p>\n<\/p>\n
43.           Significantly,   the   Returning   Officer   (CW-1)   in   his <\/p>\n
deposition   has   not   specifically   denied   that   Form-A   and   Form-B   in <\/p>\n
original duly signed in ink by the authorised officer of BJD were not  <\/p>\n
filed by the proposed candidate. Rather he stated that had it come to  <\/p>\n
his   notice   that   Form-A   and   Form-B   duly   signed   in   ink   by   the <\/p>\n
authorised   signatory   were   not   filed   by   the   proposed   candidate,   he <\/p>\n
would have made an endorsement on the bottom of the check list to  <\/p>\n
that effect and asked  the  proposed  candidate to file  the  original ink <\/p>\n
signed forms within time. He admitted that no such endorsement was  <\/p>\n
made   in   the   check   list.   The   Returning   Officer   also   stated   in   his <\/p>\n
deposition that the nomination papers filed by the proposed candidate <\/p>\n
                                                                                   29<\/span><\/p>\n
were examined by him only from technical stand point and it was not  <\/p>\n
his   duty   to   examine   the   correctness   or  validity  of   the   documents   at <\/p>\n
the time of filing of the same.\n<\/p>\n<\/p>\n
44.           Although   there   is   voluminous   documentary   evidence,   in <\/p>\n
our view, the three documents viz; the check list (Ex. 11), Form 3-A <\/p>\n
(Ex. 42\/F) and the consolidated list of nominated candidates (Ex. 44)  <\/p>\n
are important.  The  check  list  marked  `original’  (Ex.  11)  given  to  the  <\/p>\n
proposed candidate is as follows :\n<\/p>\n<\/p>\n
       Sl.         Documents                                          Whether   filed \n\n       No.                                                            (write yes\/no)\n\n       1.          Affidavit in Form-26                               yes\n\n<\/pre>\n
       2.          Affidavit as per the Commission’s order  yes<\/p>\n
                   dated 27.03.03<\/p>\n
       3.          Certified   extract   of   electoral   roll   (when  Not <\/p>\n
                   candidate   is   an   elector   of   a   different  needed<\/p>\n
                   constituency)<\/p>\n
       4.          Forms  A and  B (applicable  in the case  yes<\/p>\n
                   of candidates set up by political parties)<\/p>\n
       5.          Copy   of   caste   certificate   (if   the  Not needed<\/p>\n
                   candidate claims to belong to SC\/ST)<\/p>\n
       6.          Security deposit (whether made)                    yes<\/p>\n
       7.          Oath\/affirmation (whether taken)                   yes<\/p>\n
                                                                                        30<\/span><\/p>\n
             The following documents which have not been filed should <\/p>\n
             be filed as indicated below :\n<\/p>\n
            (a)     ____________should be filed latest by __________.<\/p>\n
            (b)     ____________should be filed latest by __________.<\/p>\n
             Received.\n<\/p>\n
             ……………………….<\/p>\n
\n\n             (Signature of candidate)\n\n\n             Date & time :           04.04.2009  -- 11.45 a.m.\n\n              Place            : ATHAGARH\"\n\n\n\n<\/pre>\n
45.                 List   of   nominated   candidates–Checks   If   (Ex.44)   to   the <\/p>\n
extent it is relevant is as follows :\n<\/p>\n
Name of Parliamentary\/Assembly Constituency -89 Athagarh<\/p>\n
No     Name of the      Address   of     Symbols                 Name   of   political            Whether  Forms        Whether
\n.      candidate        candidate        chosen   in             Party                            `A’ and `B’ have      main <\/p>\n
                                         Order            of     (National\/State   or             been   received       candidate or <\/p>\n
                                         preference              registered)              by      by 3.00 p.m. on       substitute <\/p>\n
                                         by              the     which                    the     the last date for     candidate  of <\/p>\n
                                         candidate.              candidate   claims               making                the party (as <\/p>\n
                                                                 to   have   been   set           nominations   in      per   Party’s <\/p>\n
                                                                 up\/independent                   respect of the        intimation<\/p>\n
                                                                 candidate                        candidate              in Form B)<\/p>\n
1      2                3                4                       5                                6                     7<\/span><\/p>\n
1      Ranendra         At-              Cunch                   Biju           Janata  Yes                             Main <\/p>\n
       Pratap           Radhago                                  Dal                                                    Candidate<\/p>\n
       Swain            vindapur <\/p>\n
                        P.O.-\n<\/p>\n
                        Dhaipur, <\/p>\n
                        P.S.\n<\/p>\n
                        Athagarh <\/p>\n
                        Dist.-\n<\/p>\n
                        Cuttack<\/p>\n
                                                                                                                                 31<\/span><\/p>\n
46.           On April 4, 2009, the Returning Officer published a notice <\/p>\n
in   Form   3A   on   the   notice   board   of   his   office   in   respect   of   the  <\/p>\n
nomination papers presented before him on that day. In that notice –  <\/p>\n
Form 3A (Ex. 42\/F), it was mentioned in column no. 6 that proposed  <\/p>\n
candidate was nominee of BJD. Pertinently, April 4, 2009 was the last  <\/p>\n
day of nominations. Form 3A was displayed on the notice board after <\/p>\n
3   p.m.   Had   the   proposed   candidate   not   filed   Forms   A   and   B   as <\/p>\n
required, i.e., duly signed in ink by an authorised person of BJD, he <\/p>\n
would not have been shown as a nominee of that party in Form 3A.<\/p>\n
47.           On   behalf   of   the   returned   candidate   it   was   contended <\/p>\n
before   the   High   Court   and   reiterated   before   us   that   none   of   these <\/p>\n
documents indicate that Forms A and B were filed in original. It was <\/p>\n
submitted   that   these   documents   only   indicate   that   Forms   A   and   B  <\/p>\n
were   filed   as   endorsed   in   the   check   list   and   were   received   before <\/p>\n
3.00   p.m.   on   the   last   date   of   making   nominations   but   these <\/p>\n
documents do not prove that original Forms A and B signed in ink by <\/p>\n
the authorised signatory of the party were filed. <\/p>\n
48.           It   is   true   that   neither   in   the   check   list   nor   in   the   list   of <\/p>\n
nominated   candidates,   the   word   `original’   before   Forms   A   and   B   is <\/p>\n
mentioned but it was not required to be mentioned as in the case of <\/p>\n
candidates   set   up   by   political   parties;   the   requirement   is   that   such <\/p>\n
                                                                                                 32<\/span><\/p>\n
candidates   file   Form   A   and   Form   B   duly   signed   in   ink   by   the <\/p>\n
authorised officer of the concerned political party. In the event of filing <\/p>\n
of Form A and Form B otherwise,  an endorsement would  obviously <\/p>\n
be   made   against   that   column   in   the   check   list   and   time   would   be <\/p>\n
given   to   make   up   the   deficiency   by   3.00   p.m.   on   the   last   day   of  <\/p>\n
nomination. In the circumstances, having regard to the significance of <\/p>\n
the   check   list,   if   Forms   A   and   B   were   not   filed   in   original   by   the  <\/p>\n
proposed candidate, an endorsement would have been made by the <\/p>\n
Returning Officer that only xerox copies of Forms A and B were filed.  <\/p>\n
No doubt under Section 33(4) of the 1951 Act, the Returning Officer <\/p>\n
is not expected to make a detailed scrutiny of the nomination paper <\/p>\n
presented before him but in the case of a candidate who has filed his  <\/p>\n
nomination   paper   as   a   candidate   set   up   by   a   recognised   political <\/p>\n
party and in view of para 13 of the 1968 Order, the Returning Officer  <\/p>\n
would   surely   check   whether   Form   A   and   Form   B   suffer   from   any <\/p>\n
defect.\n<\/p>\n<\/p>\n
49.            As a matter of fact, to obviate unnecessary dispute about <\/p>\n
presentation of nomination paper by a candidate, the Commission in <\/p>\n
the   handbook   has   provided   for   guidelines   pertaining   to   check   list. <\/p>\n
Accordingly, a check list is required to be prepared duly certified by <\/p>\n
the   Returning   Officer   that   all   documents   have   been   received.   Such <\/p>\n
                                                                                            33<\/span><\/p>\n
check   list   is   signed   by   the   Returning   Officer   as   well   as   by   the  <\/p>\n
candidate.   Where   a   check   list   certifies   that   Forms   A   and   B   (in   the  <\/p>\n
case   of   candidates   set   up   by   a   recognised   political   parties),   have  <\/p>\n
been filed, such certificate leads to presumption that the procedural <\/p>\n
requirement of  filing  the  documents as prescribed in para  13 of the <\/p>\n
1968   Order   has   been   complied   with.   The   presumption   is   of   course  <\/p>\n
rebuttable but there must be sufficient evidence by the other side to <\/p>\n
displace   such   presumption.   In   the   present   case,   the   check   list <\/p>\n
(Ex.11), Form 3A (Ex. 42\/F) and the list of the nominated candidates<\/p>\n
–checks   IF   (Ex.   44)   give   rise   to   presumption   in   favour   of   the <\/p>\n
proposed candidate that he had filed Form-A and Form-B duly signed <\/p>\n
in   ink   by   the   authorised   person   of   BJD   with   the   first   set   of   his  <\/p>\n
nomination   paper.   The   question   is   whether   this   presumption   has <\/p>\n
been   rebutted   by  the   returned   candidate?   We   do   not   think   so.   The  <\/p>\n
oral evidence of the returned candidate (RW-1) and his witness (RW-<\/p>\n
2)   is   not   of   much   help   insofar   as   this   aspect   is   concerned.   The  <\/p>\n
Returning   Officer   has   not   stated   firmly   and   with   certainty   in   his <\/p>\n
evidence   that   the   proposed   candidate   had   not   filed   Form-A   and <\/p>\n
Form-B signed in ink by the authorised person of the BJD. Rather he <\/p>\n
stated   that   had   it   come   to   his   notice   that   the   original   Form-A   and <\/p>\n
Form-B   duly   signed   in   ink   were   not   filed   along   with   the   nomination <\/p>\n
                                                                                        34<\/span><\/p>\n
paper   by   the   proposed   candidate,   he   would   have   made   an <\/p>\n
endorsement to that effect in the check list. Moreover, between 11.46  <\/p>\n
a.m. when the check list was prepared by the Returning Officer and <\/p>\n
given   to  the   candidate   and   3.00   p.m.   on   April   4,   2009   (last   date   of  <\/p>\n
nominations)   no   intimation   was   issued   by   the   Returning   Officer   or <\/p>\n
received by the candidate with regard to non-filing of original Forms A <\/p>\n
and   B.   No   doubt,   the   burden   is   on   the   candidate   set   up   by   a <\/p>\n
recognised  political  party  to  prove that  he  had  filed  Forms  A and  B <\/p>\n
duly   signed   in   ink   by   the   authorised   person   of   that   party   but   that  <\/p>\n
burden   gets   discharged   on   production   of   evidence   that   raises <\/p>\n
presumption   in   his   favour.   In   the   present   case   the   proposed <\/p>\n
candidate   has   been   successful   in   discharging   the   burden   placed <\/p>\n
upon him.\n<\/p>\n<\/p>\n
50.            The   evidence   of   the   Returning   Officer   is   the   important <\/p>\n
part of the case. He admitted in his evidence that the xerox copies of <\/p>\n
the nomination papers and documents were got prepared through his <\/p>\n
officials   for   the   purpose   of   displaying   on   the   notice   board.   He   also  <\/p>\n
admitted   that   since   proposed   candidate   had   filed   all   documents <\/p>\n
required in the nomination form, no further endorsement was made in <\/p>\n
the check list  that  he  (proposed candidate) was   required  to  file any <\/p>\n
documents. Moreover, with regard to another candidate, Janaki Rout <\/p>\n
                                                                                          35<\/span><\/p>\n
in   respect   of   89-Athagarh   Assembly   Constituency,   the   Returning <\/p>\n
Officer stated that he asked him to file the document which  he had  <\/p>\n
not filed along with the nomination paper by 3.00 p.m. at the latest. In <\/p>\n
respect of yet  another candidate Bijaya  Kumar Biswal,  in the check <\/p>\n
list, he had endorsed therein that the certified extract of the electoral  <\/p>\n
roll was not filed and asked him to file the same at 11.00 a.m. on April <\/p>\n
6, 2009 at the latest. It is, thus, seen that the Returning Officer was  <\/p>\n
conscious   of   his   duties   as   per   the   statutory   provisions   and   the <\/p>\n
guidelines   issued   by   the   Commission   by   way   of   handbook.   On <\/p>\n
presentation of nomination papers by respective candidates wherever <\/p>\n
deficiencies were found, he made endorsement in the check list and <\/p>\n
gave   them   time   to   make   up   the   deficiency   as   per   law.   A   careful  <\/p>\n
consideration of the evidence of Returning Officer leaves no manner <\/p>\n
of doubt that he has not distorted the facts nor withheld anything from <\/p>\n
the   court   with   regard   to   presentation   of   nomination   papers   by   the  <\/p>\n
candidates   including   the   proposed   candidate.   The   evidence   on <\/p>\n
record,   i.e,   the   evidence   of   the   Returning   Officer,   the   documentary  <\/p>\n
evidence,   namely,   the   check   list,   Form   3A   displayed   on   the   notice  <\/p>\n
board,   the   consolidated   list   of   nominated   candidates   and   the <\/p>\n
evidence of PW-2 clearly establish that original Form-A and Form-B <\/p>\n
signed in ink by authorised officer of the party (BJD) were presented  <\/p>\n
                                                                                    36<\/span><\/p>\n
by the proposed candidate along with 1st  set of nomination paper on <\/p>\n
April  4,  2009.  The  finding returned  by the  High  Court  in  this  regard <\/p>\n
cannot be said to be wrong or unjustified.\n<\/p>\n<\/p>\n
51.             It   is   a   fact   that   the   original   Forms   A   and   B   were   not <\/p>\n
available on record before the Returning Officer on April 6, 2009 at  <\/p>\n
the   time   of   scrutiny.   However,   we   are   not   persuaded   by   the  <\/p>\n
submission   made   on   behalf   of   the   returned   candidate   that   in   the  <\/p>\n
absence of original Forms A and B on record, the Returning Officer <\/p>\n
had to proceed on the basis of records available before him on that  <\/p>\n
day   and   he   had   no   option   but   to   reject   the   nomination.   The   least  <\/p>\n
expected of the Returning Officer, when he found that original forms  <\/p>\n
A   and   B   were   not   available   on   record,   was   to   make   brief   enquiry  <\/p>\n
about   non-availability   of   the   forms   A   and   B.     It   was   all   the   more <\/p>\n
necessary   as   the   nomination   papers   along   with   accompanying <\/p>\n
documents were sent for xeroxing.\n<\/p>\n<\/p>\n
52.             Section   83   of   the   1951   Act   requires   that   an   election <\/p>\n
petition   shall   contain   a   concise   statement   of   the   material   facts   on  <\/p>\n
which the petitioner relies. It has been repeatedly held by this Court <\/p>\n
that   Section   83   is   peremptory.   In  Samant   N.   Balakrishna,   etc.  v. <\/p>\n
George Fernandez and others etc.  3,  this Court observed in para 29 <\/p>\n
(Pg. 1212) of the Report thus:\n<\/p>\n
\n3  AIR 1969 SC 1201<\/p>\n
                                                                                          37<\/span><\/p>\n
         “………The   section   is   mandatory   and   requires   first   a <\/p>\n
         concise  statement  of   material  facts   and   then   requires   the <\/p>\n
         fullest possible particulars. What is the difference between <\/p>\n
         material   facts   and   particulars?   The   word   `material’   shows <\/p>\n
         that the facts necessary to formulate a complete cause of <\/p>\n
         action   must   be   stated.   Omission   of   a   single   material   fact <\/p>\n
         leads to an incomplete cause of action and the statement <\/p>\n
         of   claim   becomes   bad.   The   function   of   particulars   is   to <\/p>\n
         present   as   full   a   picture   of   the   cause   of   action   with   such <\/p>\n
         further information in detail as to make the opposite party <\/p>\n
         understand  the  case  he will  have  to  meet.  There  may be <\/p>\n
         some   overlapping   between   material   facts   and   particulars <\/p>\n
         but the two are quite distinct……….”\n<\/p>\n<\/p>\n
53.             In Azhar Hussain v. Rajiv Gandhi4,<\/a> this Court held that an <\/p>\n
election   petition   must   be   dismissed   if   the   mandatory   requirements <\/p>\n
enjoined   by   Section   83   to   incorporate   the   material   facts   and <\/p>\n
particulars relating to alleged corrupt practice in the election petition  <\/p>\n
are not complied with.\n<\/p>\n<\/p>\n
54.             In  Hari   Shanker   Jain  v.  Sonia   Gandhi5,<\/a>  this   Court <\/p>\n
reiterated   the   mandatory   provision   contained   in   Section   83(1)(a)   of <\/p>\n
the 1951 Act and  observed therein that the material facts required to  <\/p>\n
be   stated   are   those   facts   which   can   be   considered     as   materials <\/p>\n
supporting the allegations made. In other words, this Court said that <\/p>\n
they must be such facts as would afford the basis for the allegations  <\/p>\n
made   in   the   petition   and   would   constitute   the   cause   of   action   as <\/p>\n
understood in the Code of Civil Procedure, 1908.<\/p>\n
4  AIR 1986 SC 1253<\/p>\n
5  (2001) 8 SCC 233<\/p>\n
                                                                                              38<\/span><\/p>\n
55.              A   3-Judge   Bench   of   this   Court   in  Pothula   Rama   Rao  v. <\/p>\n
Pendyala Venakata Krishna Rao and Others6,<\/a>  stated in paragraph 8 <\/p>\n
(at Pg. 6) of the Report as follows :\n<\/p>\n<\/p>\n
         “If   an   election   petitioner   wants   to   put   forth   a   plea   that   a <\/p>\n
         nomination   was   improperly   rejected,   as   a   ground   for <\/p>\n
         declaring an election to be void, it is necessary to set out <\/p>\n
         the  averments  necessary for making out the said  ground. <\/p>\n
         The reason given by the Returning Officer for rejection and <\/p>\n
         the   facts   necessary   to   show   that   the   rejection   was <\/p>\n
         improper,   should   be   set   out.   If   the   nomination   had   been <\/p>\n
         rejected   for   non-compliance   with   the   first   proviso   to   Sub-<\/p>\n
         section   (1)   of   Section   33,   that   is,   the   candidate’s <\/p>\n
         nomination   not   being   subscribed   by   ten   voters   as <\/p>\n
         proposers,   the   election   petition   should   contain   averments <\/p>\n
         to   the   effect   that   the   nomination   was   subscribed   by   ten <\/p>\n
         proposers   who   were   electors   of   the   Constituency   and <\/p>\n
         therefore,   the   nomination   was   valid.   Alternatively,   the <\/p>\n
         election petition should aver that the candidate was set up <\/p>\n
         by a recognized political party by issue of a valid ‘B’ Form  <\/p>\n
         and   that   his   nomination   was   signed   by   an   elector   of   the <\/p>\n
         Constituency   as   a   proposer,   and   that   the   rejection   was <\/p>\n
         improper   as   there   was   no   need   for   ten   proposers.   In   the <\/p>\n
         absence   of   such   averments,   it   cannot   be   said   that   the <\/p>\n
         election  petition contains the material  facts to make out a <\/p>\n
         cause of action.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
56.              In   a   recent   decision   in  Nandiesha   Reddy  v.  Kavitha  <\/p>\n
Mahesh7,<\/a>  this   Court   observed   that   where   election   petitioner   alleges <\/p>\n
improper   rejection   of   his\/her   nomination   paper   by   the   Returning  <\/p>\n
Officer, he\/she must set out in election petition reasons given by the  <\/p>\n
Returning   Officer   for   refusal   to   accept   nomination   paper   and   facts <\/p>\n
necessary to show that refusal was improper. In paragraphs 36 and <\/p>\n
37 of the Report (at Pg. 734), this Court held as under :<\/p>\n
6  (2007) 11 SCC 1<\/p>\n
7  (2011) 7 SCC 721<\/p>\n
                                                                                               39<\/span><\/p>\n
        “36.    Section  83 (1)(a)  inter  alia  provides  that  an  election <\/p>\n
        petition   shall   contain   a   concise   statement   of   the   material <\/p>\n
        facts. Further, Section 87 of the Act provides that subject to <\/p>\n
        the provisions of the Act and the Rules framed thereunder <\/p>\n
        every election petition shall be tried in accordance with the <\/p>\n
        procedure applicable under the Code of Civil Procedure to <\/p>\n
        the trial of suits. Order VI of the Code of Civil Procedure is <\/p>\n
        devoted   to   the   pleadings   generally   and   Rule   2(i)   thereof, <\/p>\n
        inter   alia,   provides   that   every   pleading   shall   contain   a <\/p>\n
        statement   in   a   concise   form   of   all   the   material   facts   on <\/p>\n
        which   the   party   pleading   relies   for   claim.   In   an   election <\/p>\n
        petition, which does not contain material facts, no relief can <\/p>\n
        be granted.\n<\/p>\n<\/p>\n
        37.       The phrase “material fact” as used in Section 83 (1) <\/p>\n
        (a)   of   the   Act   or   Order   6   Rule   2   of   the   Code   of   Civil <\/p>\n
        Procedure has not been defined in the Act or the Code of <\/p>\n
        Civil Procedure. In our opinion all specific and primary facts <\/p>\n
        which   are   required   to   be   proved   by   a   party   for   the   relief <\/p>\n
        claimed are material facts. It is settled legal position that all <\/p>\n
        material  facts must be pleaded  by the party on which  the <\/p>\n
        relief   is   founded.   Its   object   and   purpose   is   to   enable   the <\/p>\n
        contesting party to know the case which it has to meet. An <\/p>\n
        election petition can be summarily dismissed if it does not <\/p>\n
        furnish the material facts to give rise to a cause of action. <\/p>\n
        However, what are the material facts always depend upon <\/p>\n
        the facts of each case and no rule of universal application <\/p>\n
        is possible to be laid down in this regard.”\n<\/p>\n<\/p>\n
57.           In view of the above legal position, there is no doubt that <\/p>\n
in   a   case   under   Section   100(1)(c)   of   the   1951   Act,   the   only   issue <\/p>\n
before   the   Court   is   improper   rejection   of   nomination   paper   and   the  <\/p>\n
court   is   required   to   examine   the   correctness   and   propriety   of   the <\/p>\n
order by which the nomination paper of a candidate is rejected. The  <\/p>\n
grounds   set   out   in   the   election   petition   challenging   the   order   of <\/p>\n
rejection of nomination paper, thus, form the basis of adjudication in  <\/p>\n
the election petition.\n<\/p>\n
                                                                                            40<\/span><\/p>\n
58.            The   learned   senior   counsel   for   the   appellant   submitted <\/p>\n
that the material facts relating to the ground on which election of the  <\/p>\n
returned candidate has been set aside have neither been pleaded in <\/p>\n
the   election   petition   nor   have   been   proved   by   leading   cogent <\/p>\n
evidence. We do not find any merit in this contention.<\/p>\n
59.            In   the   Election   Petition   No.   4   of   2009   filed   by   the <\/p>\n
proposed   candidate,   the   order   of   rejection   of   nomination   has   been <\/p>\n
assailed, inter alia, on the following grounds:<\/p>\n
       “5(C) That   the   reasonings   given   in   the   decision   of   the <\/p>\n
               Retuning   Officer,   in   his   order   of   rejection   dtd. <\/p>\n
               06.04.2009   is   also   not   legally   sustainable   for   the <\/p>\n
               following reasons :-\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
(a)            The   Nominee   of   B.J.D.   Nominee   for   87-BARAMBA <\/p>\n
Assembly   Constituency   was   submitted   on   03.04.2009.   The <\/p>\n
Returning Officer had the occasion to examine the same and grant <\/p>\n
the Check List on 03.04.2009 i.e. one day before the submission <\/p>\n
of the Nomination of the Election Petitioner, whereas the Election <\/p>\n
Petitioner submitted his Nomination on 04.04.2009. If according to <\/p>\n
the Returning Officer, “from comparison of two sets of Form A & B  <\/p>\n
submitted in 87- BARAMBA, he came to conclusion that the set of <\/p>\n
Form   A   &   B,   submitted   by   the   Election   Petitioner   along   with   his <\/p>\n
first set of Nomination was not original and not signed in ink but a <\/p>\n
xerox copy, then in ordinary course of human conduct and in view <\/p>\n
of   instruction   of   the   Election   Commission”,   he   would   have <\/p>\n
recorded an endorsement to that effect in the CHECK LIST which <\/p>\n
he   himself   gave   at   11.45   AM   on   04.04.2009,   and   would   have <\/p>\n
further called upon the Election Petitioner to produce the same by <\/p>\n
3 PM on the same day.\n<\/p>\n<\/p>\n
(b)            The Returning Officer instead of making a comparison <\/p>\n
with the Form A & B submitted along with the Nominations of 87-<\/p>\n
BARAMBA, should  have  referred  to  the Form  A  & B, which  was <\/p>\n
communicated both to him & to the CEO under the provisions of <\/p>\n
Election Symbol (Reservation & Allotment) Order – 1968. <\/p>\n
                                                                                          41<\/span><\/p>\n
       5(D)    That   a   plain   reading   of   four   Orders   of   rejection <\/p>\n
               recorded   by   the   Returning   Officer   on   four   sets   of <\/p>\n
               Nominations   submitted   by   the   Election   Petitioner <\/p>\n
               spells out so much so discrepancy that the same itself <\/p>\n
               is   sufficient   to   conclude   that   the   order   suffers   from <\/p>\n
               inconsistency and is an outcome of non application of <\/p>\n
               mind.\n<\/p>\n
       5(E)    That on the date of scrutiny no objection was  raised <\/p>\n
               by any of the contesting candidates or any person on <\/p>\n
               their behalf present at the time and place of scrutiny <\/p>\n
               to the effect that the Form A & B, filed by the Election <\/p>\n
               Petitioner with his first set of “NOMINATION” were not <\/p>\n
               original not it contains the signature of the authorised <\/p>\n
               person IN INK were Xerox copies.\n<\/p>\n
               The   complaint   was   raised   by   the   Returning   Officer <\/p>\n
               himself   who   had   received   all   the   four   sets   of <\/p>\n
               Nominations,   along   with   other   affidavits,   documents <\/p>\n
               original money receipt and original Form A & B, duly <\/p>\n
               signed   in   ink,   by   the   authorised   person,   and   had <\/p>\n
               signed   the   CHECK   LIST   which   is   a   document <\/p>\n
               required to be signed & delivered to the candidate in <\/p>\n
               exercise   of  his  statutory   powers  on   04.04.2009.   The <\/p>\n
               partisan attitude and hostility of the Returning Officer <\/p>\n
               towards   the   Election   Petitioner   emanates   from   his <\/p>\n
               own   conduct,   when   he  refused   minimum  opportunity <\/p>\n
               to   the   Election   Petitioner   to   REBUT   the   so   called <\/p>\n
               allegations regarding non-submission of original Form <\/p>\n
               – A & B containing signature of authorised person in <\/p>\n
               ink, which a candidate is entitled to as of right under <\/p>\n
               the Rules of Election Law.”\n<\/p>\n<\/p>\n
60.            The   High   Court,   inter   alia,   considered   the   evidence   of <\/p>\n
PW-2   and   also   the   evidence   of   the   Returning   Officer,   the <\/p>\n
documentary   evidence,   namely,   the   check   list   (original-exhibit   11), <\/p>\n
Form 3-A (exhibit 42\/F) and consolidated list of nominated candidates<\/p>\n
                                                                                         42<\/span><\/p>\n
–checks   IF   (exhibit-44)   and   the   contentions   of   the   returned <\/p>\n
candidate and held as under :\n<\/p>\n<\/p>\n
       “13. As   found   from   the   evidence   of   P.Ws   1   and   2,   the <\/p>\n
       latter   filed   four   sets   of   Nomination   along   with   other <\/p>\n
       accompanying   documents.   In   the   1st  set   of   Nomination <\/p>\n
       Papers,   he   filed   original   ink   signed   Form   A   and   Form   B. <\/p>\n
       Accordingly, the Returning Officer issued the Check List to <\/p>\n
       Sri   Ranendra   Pratap   Swain.   They   further   deposed   that <\/p>\n
       while   handing   over   the   Check   List,   the   Returning   Officer <\/p>\n
       stated   that   “whatever   original   forms   and   documents   that <\/p>\n
       you   have   submitted   and   I   have   received   from   you   have <\/p>\n
       been   clearly   mentioned   by   me   in   the   Check   List.   You <\/p>\n
       preserve   the   Check   List   with   you.   If   in   fact   the   Returning <\/p>\n
       Officer   had   stated   so,   it   being   a   material   fact,   the   same <\/p>\n
       should   have   been   averred   in   the   election   petition.   In <\/p>\n
       absence of pleading this part of evidence of P.Ws 1 and 2 <\/p>\n
       cannot   be   relied   upon.   According   to   the   evidence   of <\/p>\n
       Returning   Officer,   on   examining   the   documents   on <\/p>\n
       technical  stand point, he found  the election  Petitioner,  Sri <\/p>\n
       Ranendra   Pratap   Swain   to   have   filed   all   required <\/p>\n
       documents   and   accordingly   he   issued   the   Check   List <\/p>\n
       marked  Ext. 22 to him. He fairly admitted  in his evidence <\/p>\n
       that   he   can   distinguish   a   xerox   copy   from   its   original.   He <\/p>\n
       further   deposed   that   had   it   come   to   his   notice   that   Sri <\/p>\n
       Ranendra   Pratap   Swain   filed   the   xerox   copies   of   the <\/p>\n
       original   ink   signed   Form   A   and   Form   B,   he   would   have <\/p>\n
       endorsed   it   in   the   bottom   of   the   Check   List   and   directed <\/p>\n
       him to file the original ones. Again on 04.04.2009 after the <\/p>\n
       time   fixed   for   filing   the   Nomination   Papers   was   over,   he <\/p>\n
       prepared copy of those documents in Form 3A to publish in <\/p>\n
       the notice board. At that time also he could not detect the <\/p>\n
       filing of Xerox Copies of the original ink signed Form A and <\/p>\n
       Form B. Furthermore, when he prepared the consolidated <\/p>\n
       “List   of   Nominated   Candidates-Checks   if”.   He   could   not <\/p>\n
       detect   the   so   called   defect.   He   mentioned   the   symbol <\/p>\n
       “Conch” in the appropriate  column of the said form so also <\/p>\n
       the name of political party, which set up the candidate, Sri <\/p>\n
       Ranendra Pratap Swain. Since the signature of P.W. 1 the <\/p>\n
       proposer of Ranendra Pratap Swain, partially got effected, <\/p>\n
       the   Returning   Officer   asked   him   to   put   another   signature <\/p>\n
       and accordingly he did it. When the Returning Officer was <\/p>\n
       alive to find out an effaced signature in the Nomination, it <\/p>\n
       appears some what fishy how he filed to detect the Xerox <\/p>\n
                                                                                          43<\/span><\/p>\n
       copies   of   the   original   ink   signed   Form   A   and   Form   B,   if <\/p>\n
       filed. The original  ink signed Form A and Form B, if filed. <\/p>\n
       The contention of learned counsel for the respondent that <\/p>\n
       there   was   no   pleading   with   regard   to   Form   3A   and <\/p>\n
       consolidated   “List   of   Nominated   Candidates-Checks   If”   in <\/p>\n
       either   of   the   election   petitions   and   as   such   the   same <\/p>\n
       cannot   be   relied   upon   cannot   be   accepted.   It   is   the <\/p>\n
       fundamental rule of pleadings that pleading must contain a <\/p>\n
       statement   of   the   material   facts,   but   not   the   evidence   by <\/p>\n
       which   they   are   to   be   proved.   In   the   present   case,   it   has <\/p>\n
       been   averred   in   the   election   petitions   that   Shri   Ranendra <\/p>\n
       Pratap   Swain   filed   the   Nomination   along   with   required <\/p>\n
       documents   including   original   Form   A   and   Form   B   ink <\/p>\n
       signed,   before   the   Returning   Officer.   Moreover,   Form   3A <\/p>\n
       and consolidated “List of Nominated Candidates-Checks if” <\/p>\n
       have   been   admitted   as   Exts.   42\/f   and   44   respectively <\/p>\n
       without   objection.   So   their   validity   cannot   be   questioned. <\/p>\n
       As per the decision State of Orissa and others (supra) their <\/p>\n
       probative value is also very high. Even if those documents <\/p>\n
       were not referred to in the election petitions, the evidence <\/p>\n
       led in that respect can be accepted.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
61.          The   High   Court   finally   concluded   that   the   proposed <\/p>\n
candidate had filed the original Form-A and Form-B duly signed in ink  <\/p>\n
by the authorised person of BJD with the first set of his nomination <\/p>\n
and, accordingly, decided Issue No. 6 in favour of election petitioners. <\/p>\n
The consideration of the matter by the High Court in para 14 of the <\/p>\n
judgment may be reproduced as it is.\n<\/p>\n<\/p>\n
       “14. No   doubt   at   the   time   of   filing   of   Nomination,   the <\/p>\n
       Returning   Officer   is   not   required   to   scrutinize   the <\/p>\n
       Nomination   and   the   accompanying   documents   in   minor <\/p>\n
       details,   but   he   is   duty   bound   to   examine   the   same   on <\/p>\n
       technical   stand   point.   Now   the   pertinent   question   is <\/p>\n
       whether he was expected to examine whether the original <\/p>\n
       ink signed Form A and Form B were filed, while examining <\/p>\n
       the   Nomination   Paper   along   with   the   accompanying <\/p>\n
       documents,   on   technical   stand   point.   In   my   considered <\/p>\n
                                                                                          44<\/span><\/p>\n
       opinion, he had to do so, particularly when he deposed that <\/p>\n
       had it come to his notice that Sri Ranendra Pratap Swain  <\/p>\n
       filed the Xerox copies of the original ink signed Form-A and <\/p>\n
       Form-B,   he   would   have   endorsed   it   in   the   bottom   of   the <\/p>\n
       Check List and directed him to file the original ones. At this <\/p>\n
       stage   Mr.   Palit,   learned   counsel   for   the   respondent <\/p>\n
       submitted   that   unless,   an   election   petitioner   fully <\/p>\n
       established his case, it would not be proper to set aside the <\/p>\n
       election.   In   support   of   his   submission,   he   relied   on   the <\/p>\n
       decision   in   the   case   of   Ram   Phal   Kundu   Vs.   Kamal <\/p>\n
       Sharma, AIR   2004 Supreme Court 1657, where the apex <\/p>\n
       Court held as follows.\n<\/p><\/blockquote>\n
\n
          “Therefore,   unless   the   election   petitioner   fully <\/p>\n
          established his case, it will not be legally correct to set <\/p>\n
          aside the election of the appellant.”\n<\/p><\/blockquote>\n
\n
       As found from the evidence of P.Ws. 1 and 2 the latter filed <\/p>\n
       the original ink signed Form A and Form B in his 1st  set of <\/p>\n
       Nomination.   This   part   of   their   evidence   could   not   be <\/p>\n
       shaken. Even no suggestion was given to P.W. 1 that P.W. <\/p>\n
       2 did not file original ink signed Form A and Form B in his <\/p>\n
       1st  set   of   Nomination.   So,   the   above   decision   is   not <\/p>\n
       applicable to the present case.\n<\/p><\/blockquote>\n
\n
       The Returning Officer has admitted in his evidence that the <\/p>\n
       Nominations   along   with   all   the   accompanying   documents <\/p>\n
       of all the eight candidates were Xeroxed outside in Anand <\/p>\n
       Xerox   of   Athagarh.   He   has   also   admitted   that   on <\/p>\n
       04.04.2009   all   the   four   sets   of   Nomination   papers   of   Sri <\/p>\n
       Ranendra Pratap Swain were Xeroxed to display the same <\/p>\n
       in his Notice Board. The possibility that, in the process the <\/p>\n
       original ink signed Form A and Form B were inadvertently <\/p>\n
       exchanged   for   the   Xerox   copies   thereof,   cannot   be   ruled <\/p>\n
       out.   Under   such   premises,   in   my   considered   opinion,   Sri <\/p>\n
       Ranendra Pratap Swain had filed the original Form-A and <\/p>\n
       Form-B duly signed in ink by the authorised person with the <\/p>\n
       1st  set   of   his   Nomination.   Accordingly,   issue   no.   6   is <\/p>\n
       answered in affirmative.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
62.          In what we have already discussed above, we do not find <\/p>\n
any error in the consideration of the matter by the High Court. <\/p>\n
                                                                                      45<\/span><\/p>\n
63.            The election petitioner, as noticed above, in ground 5(E) <\/p>\n
set up the case that the objection of non-filing of original Forms A and  <\/p>\n
B signed in ink by the authorised officer of the party was not raised by <\/p>\n
any   of   the   contesting   candidates   or   any   person   on   their   behalf <\/p>\n
present at the time and place of scrutiny. It was the Returning Officer  <\/p>\n
who  raised the issue of non-filing of original  Forms A and B but he <\/p>\n
refused   minimum   opportunity   to   the   election   petitioner   to   rebut   the <\/p>\n
same. In our view, the Returning Officer ought to have acted in terms <\/p>\n
of   proviso   to   Section   36(5)   of   the   1951   Act   and   afforded   an  <\/p>\n
opportunity   to   the   election   petitioner   until   next   day   to   rebut   the <\/p>\n
objection   and   show   to   the   Returning   Officer   that   the   proposed  <\/p>\n
candidate   had   filed   Forms   A   and   B   duly   singed   in   ink   by   the  <\/p>\n
authorised person of BJD. PW-3, the authorised representative of the <\/p>\n
election petitioner did state in his evidence that he requested to the <\/p>\n
Returning Officer, when he raised the objection that original Forms A <\/p>\n
and   B   were   not   filed,   to   enquire   into   the   matter   about   the   missing <\/p>\n
Forms A and B. It was not necessary to state in the election petition  <\/p>\n
the evidence of PW-3 in support of ground 5(E).\n<\/p>\n<\/p>\n
64.            The proviso that follows  sub-section (5) of Section 36 of <\/p>\n
the   1951   Act   provides    that   in   case   an   objection   is   raised   by   the <\/p>\n
returning   officer   or   is   made   by   any   other   person   the   candidate <\/p>\n
                                                                                       46<\/span><\/p>\n
concerned may be allowed time to rebut it not later than the next day <\/p>\n
but one following the date fixed for scrutiny, and the returning officer <\/p>\n
shall record his decision on the date to which the proceedings have  <\/p>\n
been adjourned.\n<\/p>\n<\/p>\n
65.             In Rakesh Kumar v. Sunil Kumar8,<\/a> this Court held in para <\/p>\n
21 (Pg. 500) as under:\n<\/p>\n<\/p>\n
         “21.  ………The use  of the expression  “not  later  than  the <\/p>\n
         next   day   but   one   following   the   date   fixed   for   scrutiny” <\/p><\/blockquote>\n
         under the proviso to Sub-section (5) of Section 36 of the <\/p>\n
         Act   un-mistakably   shows   that   the   Returning   Officer   has <\/p>\n
         been   vested   with   the   discretion   to   fix   time   to   enable   a <\/p>\n
         candidate   to   rebut   an   objection   to   the   validity   of   his <\/p>\n
         nomination   paper   and   such   a   discretion   has   to   be   fairly <\/p>\n
         and   judicially   exercised.   The   refusal   to   grant   an <\/p>\n
         opportunity to the respondent and rejecting his nomination <\/p>\n
         paper   was   clearly   an   arbitrary   exercise   of   the   discretion <\/p>\n
         vested in the Returning Officer. The Returning Officer has <\/p>\n
         also not given any cogent reasons for his refusal to grant <\/p>\n
         an   opportunity   as   prayed   for   by   the   respondent.   The <\/p>\n
         Returning   Officer   appears   to   have   been   labouring   under <\/p>\n
         some   misconception   when   he   recorded   that   the   political <\/p>\n
         party   “cannot   be   given   further   time   to   change   such <\/p>\n
         authorisation after scrutiny”. Under the proviso to Section <\/p>\n
         36(5)   of   the   Act,   the   scrutiny   itself   would   have   been <\/p>\n
         postponed to the adjourned time and, therefore, it was not <\/p>\n
         a   case   of   meeting   the   objection   after   scrutiny   of   the <\/p>\n
         nomination papers. The failure to exercise his jurisdiction <\/p>\n
         to   postpone   the   decision   as   to   the   validity   of   the <\/p>\n
         nomination   paper   of   the   respondent,   even   after   the <\/p>\n
         respondent had sought time to meet the objection, indeed <\/p>\n
         rendered   the   rejection   of   the   nomination   paper   of   the <\/p>\n
         respondent   as   both   improper   and   illegal.   The   Returning <\/p>\n
         Officer   is   not   expected   to   reject   a   nomination   paper, <\/p>\n
         without   giving   an   opportunity   to   the   candidate   or   his <\/p>\n
         representative present  at the time of scrutiny to meet an <\/p>\n
         objection,   capable   of   being   met,   particularly   where   such <\/p>\n
         an   opportunity   is   sought   for   by   the   candidate   or   his <\/p>\n
8 (1999) 2 SCC 489<\/p>\n
                                                                                         47<\/span><\/p>\n
         representative and no one present on behalf of the other <\/p>\n
         candidates   had   opposed   the   claim   made   by   the <\/p>\n
         respondent.   Having   raised   the   objection   suo   motu,   the <\/p>\n
         request   of   the   respondent   who   was   present   and   sought <\/p>\n
         time in writing to seek clarification from the BJP as to who <\/p>\n
         was   its   official   candidate,   the   Returning   Officer   in   all <\/p>\n
         fairness   was   obliged   to   grant   time   to   the   respondent   as <\/p>\n
         prayed for by him and postponed the scrutiny to the next <\/p>\n
         day   but   he   ought   not   to   have   rejected   his   nomination <\/p>\n
         paper in hot haste. The Returning Officer, obviously, failed <\/p>\n
         to exercise his jurisdiction under Section 36(5) of the Act <\/p>\n
         properly and thereby fell in a grave error in rejecting the <\/p>\n
         nomination paper of the respondent……….”         <\/p>\n
66.            In   the   facts   and   circumstances   of   the   present   case, <\/p>\n
which have already been noticed above, the Returning Officer erred  <\/p>\n
in   acting   in   hot   haste   in   rejecting   the   nomination   paper   of   the <\/p>\n
proposed candidate and not postponing the scrutiny to the next day,  <\/p>\n
particularly,   when   a   request   was   made   by   the   authorised <\/p>\n
representative   of   the   proposed   candidate.   The   election   petitioners <\/p>\n
have   been   successful   in   proving   the   improper   rejection   of   the <\/p>\n
proposed candidate’s nomination paper.   In other words, they have  <\/p>\n
been able to prove the ground for setting aside appellant’s election <\/p>\n
to   89-Athagarh   Assembly   Constituency   under   Section   100(1)(c)   of <\/p>\n
the 1951 Act.\n<\/p>\n<\/p>\n
67.            The consideration of the matter by the High Court does <\/p>\n
not   suffer   from   any   factual   or   illegal   infirmity.   In   this   view   of   the  <\/p>\n
                                                                                            48<\/span><\/p>\n
matter   –   and   the   factual   and   legal   position   discussed   above   –   we  <\/p>\n
see no ground to interfere with the impugned judgment. <\/p>\n
68.           The appeals, accordingly, fail and are dismissed with no <\/p>\n
order as to costs.\n<\/p>\n<\/p>\n
                                                          ………………………J<\/p>\n
                                                                  (R.M. LODHA)  <\/p>\n
                                                    ………………………………..J.<\/p>\n
                                                   (JAGDISH SINGH KHEHAR )<\/p>\n
NEW DELHI<\/p>\n
DECEMBER 9, 2011.\n<\/p>\n
                                                                                     49<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramesh Rout vs Rabindra Nath Rout on 9 December, 2011 Author: R Lodha Bench: R.M. Lodha, Jagdish Singh Khehar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-200609","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamesh Rout vs Rabindra Nath Rout on 9 December, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramesh-rout-vs-rabindra-nath-rout-on-9-december-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramesh Rout vs Rabindra Nath Rout on 9 December, 2011 - 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