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elections =improper rejection of nomination papers =the Returning Officer erred in acting in hot haste in rejecting the nomination paper of the proposed candidate and not postponing the scrutiny to the next day, particularly, when a request was made by the authorised representative of the proposed candidate. The election petitioners have been successful in proving the improper rejection of the proposed candidate’s nomination paper. In other words, they have been able to prove the ground for setting aside appellant’s election to 89-Athagarh Assembly Constituency under Section 100(1)(c) of the 1951 Act.

 

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4956 OF 2010

Ramesh Rout …. Appellant

Versus

Rabindra Nath Rout ….Respondent

WITH

CIVIL APPEAL NO. 4962 OF 2010

JUDGMENT

R.M. Lodha, J.

The returned candidate — Ramesh Rout – whose

election to the 14th Orissa Legislative Assembly from 89-Athagarh

Assembly Constituency has been set aside by the High Court of

Orissa has preferred these two appeals under Section 116A read

with Section 116C of the Representation of the People Act, 1951 (for

short, `the 1951 Act’).

1

2. The Election Commission of India (for short,

`Commission’) in order to constitute 14th Legislative Assembly

announced general elections in the State of Orissa to be held in two

phases on April 16, 2009 and April 23, 2009. Following this, the

Governor of the State of Orissa in exercise of powers conferred

under Section 5(2) of the 1951 Act issued a notification which was

published in the official gazette on March 28, 2009. The 89 -

Athagarh Assembly constituency is one of the 147 Assembly

constituencies in the State of Orissa and is `General’ constituency.

The Commission appointed the following schedule of election :

“28.3.2009

To

04.04.2009 = Period prescribed for filing of

“NOMINATIONS”

06.04.2009 = date fixed for SCRUTINY OF

NOMINATIONS.

08.04.2009 = last date for WITHDRAWAL OF

NOMINATIONS

23.04.2009 = date of POLLING.

16.05.2009 = date of COUNTING OF VOTES.

28.05.2009 = date before which the Election

shall be completed.”

3. On April 4, 2009, at 11.25 A.M., the respondent in Civil

Appeal No. 4962 of 2010 – Ranendra Pratap Swain (hereinafter

referred to as `proposed candidate’) filed four sets of nomination

papers for 89-Athagarh Assembly constituency as a candidate of

2

Biju Janata Dal (`BJD’) – a registered and recognized political party

in the State of Orissa before the Returning Officer. Seven other

candidates including the present appellant also filed their nomination

papers at the said election. The check list (ticked original) was

issued by the Returning Officer with his signature to the proposed

candidate at 11.45 a.m. A copy of the check list (ticked duplicate)

was retained by the Returning Officer.

4. On the appointed date (i.e. April 6, 2009) and time for

scrutiny of nominations, the Returning Officer rejected the

nomination papers of the proposed candidate on the ground that the

Form A and Form B filed by the proposed candidate along with his

first set of nomination paper were not duly signed in ink by the

authorized officer of the political party (BJD).

5. Upset with the order of Returning Officer dated April 6,

2009, rejecting his nomination, the proposed candidate filed a writ

petition before the Orissa High Court. However, the High Court did

not entertain the writ petition and directed him to pursue his

grievance before the Commission or seek appropriate relief after

election process was over. The proposed candidate raised his

grievance before the Commission but without any success.

3

6. The election to the 89-Athagarh Assembly constituency

was held as per election schedule and the appellant who contested

the election as an independent candidate was declared elected.

7. Two election petitions came to be filed before the Orissa

High Court challenging the election of the appellant to 89-Athagarh

Assembly Constituency. One by the proposed candidate being

Election Petition no. 4 of 2009 and the other by the proposer -

respondent in Civil Appeal No. 4956 of 2010 being Election Petition

no. 6 of 2009. In both election petitions, the election of the appellant

was challenged on the ground of improper rejection of nomination

papers of the proposed candidate. It was averred therein that the

proposed candidate had filed Form A and Form B signed in ink by

the authorized person along with first set of nomination paper

showing that he had been duly sponsored by the BJD to contest as

a party nominee from 89-Athagarh Assembly constituency and with

other three sets of nomination, he had filed xerox copies of original

Forms A and B duly authenticated by a Notary Public. The election

petitioners raised diverse grounds in challenging the order of the

Returning Officer dated April 6, 2009 whereby the nomination

papers of the proposed candidate were rejected.

4

8. The appellant — (respondent therein) – contested the

election petitions by filing separate written statement. He raised

objections about the maintainability of election petitions on facts and

in law. Inter alia, it was denied that the proposed candidate filed

original Form-A and Form-B signed in ink by the authorized person

of BJD as at the time of scrutiny original Form A and Form B were

not available and the Form A and Form B on record did not contain

ink signature.

9. On the respective pleadings of the parties, the High

Court initially framed four issues but later on framed additional issue

no. 5. The relevant two issues, namely, issue no. 3 and issue no. 5

read as follows :

“3. Whether the Returning Officer improperly rejected the

nomination of the Election Petitioner in violation of the

statutory provisions and rules?

5. Whether the Returning Officer improperly rejected the

nomination of Sri Ranendra Pratap Swain, the official

candidate of Biju Janata Dal in violation of the instructions

issued by the Election Commission of India in exercise of

its constitutional powers and the principles of natural justice

or not?”

10. The election petitioners as well as the returned candidate

tendered oral and documentary evidence. On behalf of the election

petitioners, three witnesses, namely, proposer – Rabindra Nath Rout

5

(PW-1); proposed candidate – Ranendra Pratap Swain (PW-2) and

authorised agent – Tarani Kanta Biswal (PW-3) were examined. On

the other hand, the returned candidate examined himself as RW-1

and one Magnicharan Rout as (RW-2). The Returning Officer was

examined by the Court as its witness (CW-1). The documents

tendered in evidence were marked separate exhibits.

11. The High Court also called for all the original documents

pertaining to the scrutiny of nomination papers for 89-Athagarh

Constituency and 87-Badamba Constituency. We shall refer to

relevant documentary evidence appropriately wherever necessary.

12. The High Court on hearing the parties, at the time of

decision in the election petitions, framed an additional issue no. 6

namely, whether the election petitioner (proposed candidate) filed the

original Form A and Form B duly signed in ink by the authorized

person with the first set of his nomination paper. The High Court

answered issue nos. 3, 5 and 6 in the affirmative and allowed both

election petitions on June 23, 2010 and declared the election of the

appellant null and void. The High Court declared that a casual

vacancy is created relating to 89-Athagarh Assembly Constituency

and the Commission was directed to conduct fresh election in respect

of the said constituency in accordance with law.

6

13. It is from this judgment that these two appeals have

arisen.

14. We have heard Mr. Gopal Subramanian, learned senior

counsel for the appellant and Mr. K.K. Venugopal, learned senior

counsel for the proposed candidate.

15. The Returning Officer plays an important role in the

election management and to ensure that there is no scope left for any

complaint, the Commission has issued a handbook for Returning

Officers (for short, `the handbook’) The handbook, as it states, has

been designed to give to the Returning Officers the information and

guidance which they may need in performance of their functions; to

acquaint them with up-to-date rules and procedures prescribed for

the conduct of elections and to ensure that there is no scope for

complaint of partiality on the part of any official involved in the

election management. We shall refer to the relevant provisions of the

handbook a little later. The handbook does not have statutory

character and is in the nature of guidance to the Returning Officers.

16. By virtue of a notification dated February 10, 2009

(Exhibit 10) issued by the Commission, for the first time, the issuance

of check list to a candidate filing nomination paper has been

introduced. Prior thereto, there was no such provision. It is provided

7

that in respect of each candidate, the Returning Officer should

maintain, in duplicate, the check list of the documents/requirements

filed by the candidates. When a candidate files nomination paper, the

Returning Officer shall indicate in the second column of the check list

whether the concerned documents have been filed or other

requirements fulfilled. If any of the documents has not been filed, it

requires the Returning Officer to clearly state in the bottom of the

check list, indicating the time limit by which such document/s can be

submitted. The check list in two sets with all requirements indicated

is needed to be signed by the Returning Officer as well as the

candidate. The check list (marked original) is handed over to the

candidate/proposer who files nomination paper, while check list

(marked copy) is retained by the Returning Officer. The notification

states that the copy of the check list will serve the dual purpose of

acknowledging the receipt of the documents submitted as well as of

notices as directed in the handbook. It is further provided that no

separate notice is required to be given to the candidate in respect of

the items mentioned in the check list. If and when a document is filed

subsequent to filing of nomination, an acknowledgment to that effect

is issued to the candidates, namely, mentioning the date and time at

which it is filed and this is also indicated in the appropriate place in

8

the check list retained by the Returning Officer. The proforma of the

check list has also been notified with the notification dated February

10, 2009.

17. Section 33 of the 1951 Act makes provision for

presentation of nomination paper and requirements for a valid

nomination. To the extent it is relevant for the purposes of the

present case, it is reproduced as follows :

“S. 33. Presentation of nomination paper and requirements

for a valid nomination.–(1) On or before the date

appointed under clause (a) of section 30 each candidate

shall, either in person or by his proposer, between the

hours of eleven o’ clock in the forenoon and three o’ clock

in the afternoon deliver to the returning officer at the place

specified in this behalf in the notice issued under section

31 a nomination paper completed in the prescribed form

and signed by the candidate and by an elector of the

constituency as proposer:

xxx xxx xxx

(4) On the presentation of a nomination paper, the

returning officer shall satisfy himself that the names and

electoral roll numbers of the candidate and his proposer as

entered in the nomination paper are the same as those

entered in the electoral rolls:

Provided that no misnomer or inaccurate description

or clerical, technical or printing error in regard to the name

of the candidate or his proposer or any other person, or in

regard to any place, mentioned in the electoral roll or the

nomination paper and no clerical, technical or printing error

in regard to the electoral roll numbers of any such person

in the electoral roll or the nomination paper, shall affect the

full operation of the electoral roll or the nomination paper

with respect to such person or place in any case where the

9

description in regard to the name of the person or place is

such as to be commonly understood; and the returning

officer shall permit any such misnomer or inaccurate

description or clerical, technical or printing error to be

corrected and where necessary, direct that any such

misnomer, inaccurate description, clerical, technical or

printing error in the electoral roll or in the nomination paper

shall be overlooked.

xxx xxx xxx”

18. Section 35 provides for notice of nominations and the

time and place for their scrutiny.

19. The provision concerning scrutiny of nomination is made

in Section 36 of the 1951 Act. To the extent it is relevant, it reads as

follows :

“S. 36. Scrutiny of nomination.–(1) On the date fixed for

the scrutiny of nominations under section 30, the

candidates, their election agents, one proposer of each

candidate, and one other person duly authorized in writing

by each candidate but no other person, may attend at such

time and place as the returning officer may appoint; and

the returning officer shall give them all reasonable facilities

for examining the nomination papers of all candidates

which have been delivered within the time and in the

manner laid down in section 33.

(2) The returning officer shall then examine the

nomination papers and shall decide all objections which

may be made to any nomination and may, either on such

objection or on his own motion, after such summary

inquiry, if any, as he thinks necessary, reject any

nomination on any of the following grounds:-

(a) xxx xxx xxx

(b) that there has been a failure to comply with any of the

provisions of section 33 or section 34; or

10

(c) that the signature of the candidate or the proposer

on the nomination paper is not genuine.

xxx xxx xxx

(4) The returning officer shall not reject any

nomination paper on the ground of any defect which is not

of a substantial character.

(5) The returning officer shall hold the scrutiny on

the date appointed in this behalf under clause (b) of section

30 and shall not allow any adjournment of the proceedings

except when such proceedings are interrupted or obstructed

by riot or open violence or by causes beyond his control:

Provided that in case an objection is raised by the

returning officer or is made by any other person the

candidate concerned may be allowed time to rebut it not

later than the next day but one following the date fixed for

scrutiny, and the returning officer shall record his decision

on the date to which the proceedings have been adjourned.

xxx xxx xxx”

20. The Conduct of Elections Rules, 1961 (for short, `1961

Rules’) have been framed under the 1951 Act. Rule 4 provides that

every nomination paper presented under sub-section (1) of Section

33 shall be completed in such one of the Forms 2A to 2E as may be

appropriate. Proviso that follows Rule 4 makes a provision that a

failure to complete or defect in completing, the declaration as to

symbols in a nomination paper in Form 2A or Form 2B shall not be

11

deemed to be a defect of substantial character within the meaning of

sub-section (4) of Section 36.

21. Form 2B under Rule 4 is in three parts. Part-I is to be

used by a candidate set up by a recognised political party. Part-II is

required to be filled by a candidate for election to the legislative

assembly not set up by a recognised political party and it provides

that there should be ten electors of the constituency as proposers.

Part-III of Form 2B is a declaration to be made by the candidate

giving assent to his nomination. Clause (b)(i) is applicable to a

candidate who has been set up by a recognised political party with a

request that symbol reserved for such party be allotted to him. Clause

(b)(ii), on the other hand is applicable to a candidate not set up by

any registered recognised political party or a candidate who is

contesting the election as an independent candidate. A recognised

political party means a political party recognised by the Commission

under the 1968 Order.

22. Rule 5 of the 1961 Rules makes a provision for symbols

for elections in parliamentary and assembly constituencies. Rule 10

of 1961 Rules provides for preparation of list of contesting

candidates.

12

23. In exercise of the powers conferred by Article 324 of the

Constitution of India read with Section 29A of the 1951 Act and Rules

5 and 10 of the 1961 Rules, the Commission made Election Symbols

(Reservation and Allotment) Order, 1968 (for short `1968 Order’).

Unregistered political parties are out of its purview. The registered

recognized and unrecognized political parties and independent

candidates are dealt with by the 1968 Order. 1968 Order came to be

amended by notification no. 56/2000/Judl. III dated 1st December,

2000. Para 13 of the 1968 Order is relevant for consideration of the

present matter. It reads as follows :

“13. When a candidate shall be deemed to be set up by a

political party.–For the purposes of an election form any

Parliamentary or Assembly Constituency to which this

Order applies, a candidate shall be deemed to be set up by

a political party in any such Parliamentary or Assembly

Constituency, if, and only if–

(a) the candidate has made the prescribed declaration to

this effect in his nomination paper,

(aa) the candidate is a member of that political party and

his name is borne on the rolls of members of the

party;

(b) a notice by the political party in writing in Form B, to

that effect has, not later than 3.p.m. on the last date

for making nominations, been delivered to the

Returning Officer of the constituency;

(c) the said notice in Form B is signed by the President,

the Secretary or any other office-bearer of the party,

and the President, Secretary or such other office

bearer sending the notice has been authorised by the

party to send such notice;

13

(d) the name and specimen signature of such authorised

person are communicated by the party, in Form A, to

the Returning Officer of the constituency and to the

Chief Election Officer of the State or Union Territory

concerned, not later than 3 p.m. on the last date for

making nominations; and

(e) Forms A and B are signed, in ink only, by the said

office-bearer or person authorised by the party:

Provided that no fascimile signature or signature by

means of rubber stamp, etc. of any such office bearer

or authorised person shall be accepted and no form

transmitted by fax shall be accepted.”

24. Chapter VI of the handbook deals with the scrutiny of

nominations by the Returning Officer. Para 2 emphasises that

scrutiny of nomination papers is an important quasi-judicial function

and the Returning Officer has to discharge this duty with complete

judicial detachment and in accordance with the highest judicial

standards. Para 6 provides that even if no objection has been raised

to a nomination paper, the Returning Officer has to satisfy himself

that the nomination paper is valid in law. If any objection is raised to

any nomination paper, the Returning Officer has to hold a summary

inquiry to decide the same and treat the nomination paper to be either

valid or invalid. It states that brief reasons in support of the decision

must be set out, particularly, where an objection has been raised or

the nomination paper has been rejected. Para 7 provides for

presumption of validity of every nomination paper unless the contrary

14

is prima facie obvious or has been made out. In case of a reasonable

doubt, as to the validity of a nomination paper, the benefit of such

doubt must go to the candidate concerned and the nomination paper

should be held to be valid. Para 7 seeks to remind the Returning

Officer that whenever a candidate’s nomination paper is improperly

rejected and he is prevented from contesting the election, there is a

legal presumption that the result of the election has been materially

affected by such improper rejection and the election is liable to be set

aside. Para 9.6 sets out some of the defects which may be treated

by the Returning Officer as defects of substantial nature. It, inter alia,

provides that failure to submit written authorisation form from the

political party, within prescribed time and in prescribed form, where a

candidate claims to have been set up by a national or state party, is a

defect of substantial nature. Para 10.3 says that the nomination paper

filed by a candidate claiming to have been set up by a recognised

national/state party subscribed by only an elector as proposer is liable

to be rejected, if a notice in writing to that effect has not been

delivered to the Returning Officer of the Constituency by an

authorised office-bearer of that political party by 3 p.m. on the last

date for making nominations in Forms A and B devised by the

Commission for the purpose under para 13 of the 1968 Order.

15

25. In light of the above provisions, particularly Sections 33(1)

and 36(1) of the 1951 Act, Rule 4 of the 1961 Rules, Part-III of Form

2B, para 13(e) of the 1968 Order and Forms A and B appended to

1968 Order and the guidelines issued to the Returning Officers in the

handbook, Mr. Gopal Subramanian, learned senior counsel for the

appellant submitted that where a candidate for the election to

Assembly has been set up by a recognised political party, the filing of

original Forms A and B duly signed in ink by an authorised person of

such political party is non-negotiable and non-filing of original Forms

A and B signed in ink constitutes a defect of substantial nature.

Learned senior counsel argued that proviso to Rule 4 carves out an

exception in respect of declaration in relation to symbol by candidates

of unrecognised political party and independent candidates as per

clause (b)(ii) of Part-III of Form 2-B and has no application to the

case of a candidate belonging to a recognised political party who has

to make a declaration as required by clause(b)(i) thereof. According

to Mr. Gopal Subramanian, the proviso appended to Rule 4 and para

13 of the 1968 Order operate in completely different fields without any

overlap or conflict. He vehemently contended that the present case

squarely falls under Section 36(2)(b) of the 1951 Act for failure to

comply with the requirement of nomination paper completed in

16

prescribed form. He would argue that the nomination having been

subscribed by one proposer, basing on the declaration given by the

election petitioner, it is intrinsic mandatory requirement of the 1968

Order that ink signed Forms A and B were filed prior to 3 P.M. on the

last date of making nomination so as to sustain the declaration of the

candidate having been set up by a recognised political party.

26. On the other hand, Mr. K.K. Venugopal, learned senior

counsel for the proposed candidate contended that Section 36(4) of

the 1951 Act read with proviso to Rule 4 of the 1961 Rules and Form

2 B (Part III) would make the filing of xerox copy of Form A and Form

B permissible (assuming that xerox copy of Form A and Form B were

filed only) and cannot form the basis of the rejection of the nomination

paper. He submitted that failure to file original Form A and Form B

signed in ink was not defect of a substantial character within the

meaning of Section 36(4) of the 1951 Act. According to him, para

13(e) of the 1968 Order that states “Forms A and B are signed, in ink

only, by the said office bearer or person authorised by the party” is

only an expression of hope and is not mandatory as it does not use

the expression `shall be signed’. He referred to a decision of this

Court in the case of Jagan Nath v. Jaswant Singh & Ors.1 in support

of his submission that the election law is technical and unless

1 1954 SCR 892

17

express provision is found, one cannot read the word “are” as “shall”.

With reference to Section 33(1) of the 1951 Act, Mr. Venugopal would

submit that the expression “a nomination paper completed in the

prescribed form and signed by the candidate and by an elector of the

constituency as proposer” did not require the nomination paper to be

accompanied by specified documents. Rule 4 of the 1961 Rules

deals with the nomination paper while para 13 of the 1968 Order

deals with the political party’s authorisation. The two are separate

and distinct and para 13 of 1968 Order cannot be read into Rule 4 of

the 1961 Rules.

27. Mr. K.K. Venugopal, learned senior counsel submitted

that neither Section 33 nor Section 34 of the 1951 Act required that

the nomination should be accompanied by the sponsorship or

authorisation of a political party. Section 36(2) of the 1951 Act sets

out the grounds on which nomination paper can be rejected. Neither

clause (a) which deals with qualifications and disqualifications nor

clause (b) that deals with failure to comply with Section 33 nor

Section 34 or clause (c) which deals with signature of the candidate

or his proposer is relevant to the present controversy.

28. On the above contentions, the question presented for our

consideration is, whether it is mandatory for a candidate set up by a

18

recognised political party to file original ink signed Forms A and B

appended to para 13 of the 1968 Order.

29. Before we consider the above question, it is important to

recapitulate the general rule relating to election law stated by the

Constitution Bench of this Court in the case of Jagan Nath1. This

Court (at page 895) stated :

“The general rule is well settled that the statutory

requirements of election law must be strictly observed and

that an election contest is not an action at law or a suit in

equity but is a purely statutory proceeding unknown to the

common law and that the court possesses no common law

power. It is also well settled that it is a sound principle of

natural justice that the success of a candidate who has

won at an election should not be lightly interfered with and

any petition seeking such interference must strictly conform

to the requirements of the law. None of these propositions,

however, have any application if the special law itself

confers authority on a tribunal to proceed with a petition in

accordance with certain procedure and when it does not

state the consequences of non-compliance with certain

procedural requirements laid down by it. It is always to be

borne in mind that though the election of a successful

candidate is not to be lightly interfered with, one of the

essentials of that law is also to safeguard the purity of the

election process and also to see that people do not get

elected by flagrant breaches of that law or by corrupt

practices. In cases where the election law does not

prescribe the consequence or does not lay down penalty

for non-compliance with certain procedural requirements of

that law, the jurisdiction of the tribunal entrusted with the

trial of the case is not affected.”

30. Section 33 of the 1951 Act enacts that a candidate shall

file nomination paper on or before the appointed date in the

19

prescribed form. The form in which nomination paper shall be

presented and completed is provided in Rule 4 of the 1961 Rules.

According to Rule 4, every nomination paper presented under sub-

section (1) of Section 33 shall be completed in such one of the forms

2-A to 2-E, as may be appropriate. Proviso that follows Rule 4

provides that a failure to complete or defect in completing, the

declaration as to symbols in a nomination paper in Form 2-A or Form

2-B shall not be deemed to be a defect of substantial character within

the meaning of Section 36(4) of 1951 Act. The controversy in the

present case relates to a candidate set up by a recognised political

party of the State and, therefore, the relevant form in this regard is

Form 2-B. Form 2-B is in three parts. Part-II is not relevant and,

therefore, it is not necessary to refer to that. Part-I and Part-III of

Form 2-B are relevant. Part-I of Form 2-B is required to be completed

by a candidate set up by a recognised political party. Part-III of Form

2-B is a declaration to be made by the candidate giving assent to his

nomination. The candidate is required to declare, in case of a

candidate set up by a recognised State party in terms of para b(i),

“that I am set up at this election by the ………party, which is

recognised national party/state party in this State and that the symbol

reserved for the above party be allotted to me”. Para b (ii) of Part-III is

20

applicable to a candidate set up by any registered unrecognised

political party or a candidate who is contesting the election as an

independent candidate. A plain reading of proviso that follows Rule 4

leaves no manner of doubt that a failure to complete or defect in

completing, the declaration as to symbols in a nomination paper in

Form 2A or Form 2B by a candidate set up by a recognised political

party or a candidate set up by registered unrecognised political party

or a candidate who seeks to contest the election as an independent

candidate is not a defect of substantial nature. It is not possible to

catalogue defects contemplated by the proviso. However, to illustrate

the few; wrong description of symbol, omission to fill blank space

given in proforma in respect of choice of symbols, selecting a symbol

which is reserved, etc., fall in the category of defects not of a

substantial character. We are fortified in our view by a decision of this

Court in Krishna Mohini (Ms) v. Mohinder Nath Sofat2 wherein this

Court said in para 32 (Pg. 159) :

“32. Though Rule 4 of the Conduct of Elections Rules

requires every nomination paper presented under sub-

section (1) of Section 33 to be complete in such one of the

Forms 2-A to 2-E as may be appropriate and, therefore, the

blank space meant for showing three symbols in order of

preference as symbols of the candidate’s choice, has to be

filled in; however, non-filling of the space as to choice of

symbol is not a defect of a substantial character. Such

deficiency in the nomination paper is saved by the proviso

to Rule 4 of the Conduct of Elections Rules, 1961 which

2 (2000) 1 SCC 145

21

provides that failure to complete or defect in completing the

declaration as to symbols in a nomination paper shall not

be deemed to be a defect of a substantial character within

the meaning of sub-section (4) of Section 36. Choosing a

wrong symbol, leaving blank the space meant for filling the

choice of symbols and an error in describing the symbol –

are all defects not of a substantial character. An

independent candidate may mention as his preference the

symbol reserved for a recognised political party, but that

again will not be a defect of a substantial character.

Dealing with such cases, this Court has held in K.S. Abdul

Azeez v. Ramanathan Chettiar (AIR 1967 SC 85) that the

question of symbols should not play an important part

because symbols can be assigned by political parties till

the date for withdrawal and nomination paper should not be

cancelled, on this ground, during the interval.”

31. The applicability of proviso that follows Rule 4, however,

is limited to defect in the declaration as to symbol made by a

candidate in Form 2-A or 2-B appended to 1961 Rules. Its operation

does not extend to the defects in forms required to be filled or

completed by a candidate set up by a recognised political party

under 1968 Order or non-fulfilment of requirements set out in clauses

(a) to (e) of para 13 of the 1968 Order.

32. 1968 Order has been made by the Commission to provide

for specification, reservation, choice and allotment of symbols of

elections in Parliamentary and Assembly Constituencies for the

registered political parties (recognised or unrecognised) and the

independent candidates. Para 13 provides in unmistakable terms that

for a candidate to be considered to have been set up by a political

22

party in a parliamentary or assembly constituency, he has to comply

with the conditions set out in clauses (a) to (e) thereof. In Krishna

Mohini (Ms)2, this Court held that in order to be a candidate set up by

a registered and recognised political party so as to take advantage of

being proposed by a single elector, all the four requirements set out

in clauses (a), (b), (c) and (d) of para 13 of 1968 Order must be

satisfied. The Court went on to say that if any one or more of the

requirements are not satisfied, the benefit of nomination being

proposed by a single elector is not available to him. Clause (e) of

para 13 of the 1968 Order is equally important. It reads, “Forms A

and B are signed, in ink only, by the said office-bearer or person

authorised by the party”. Proviso appended to para 13 makes a

provision that no facsimile signature or signature by means of rubber

stamp, etc. of any such office-bearer or authorised person shall be

accepted and no form transmitted by fax shall be accepted. In other

words, for a candidate, proposed by a single elector alone, to be

treated as a candidate set up by a recognised political party, the filing

of notice and communication in Forms A and B referable to clauses

(b), (c) and (d) and in accord with clause (e) of para 13 of the 1968

Order is essential and on its non-compliance, the nomination of such

candidate is liable to be rejected.

23

33. That clause (e) of para 13, 1968 Order does not use the

expression “shall be signed” is obvious from the bare reading of the

provision but the significance of the word “only” therein cannot be

ignored.

34. In Concise Oxford English Dictionary (Tenth Edition,

Revised), the word `only’ is explained :

Only adv. 1 and no one or nothing more besides.. . . . . .

adj. alone of its or their kind; single or solitary. . . . . . . .

35. In Webster Comprehensive Dictionary, International

Edition (Volume Two), the word `only’ is defined thus :

Only (n’l) adv. . . . . . . . 2 In one manner or for one

purpose alone. . . . . . 4 Solely; merely; exclusively: limiting

a statement to a single defined person, thing, or number. -

adj. 1 Alone in its class; having no fellow or mate; sole;

single; solitary:

36. The word `only’ is ordinarily used as an exclusionary term.

In the American case of Henry R. Towne v. Mark Eisner (245 US 418

at 425), the court said, “A word is not a crystal, transparent and

unchanged; it is the skin of a living thought and may vary greatly in

colour and content according to the circumstances and the time in

which it is used”. In ascertaining the meaning of the word `only’, its

placement is material and so also the context in which the word has

been used. The use of the word `only’ in clause (e), para 13, 1968

24

Order emphasises that Forms A and B are to be signed in ink by the

office bearer or person authorised by the recognised party and in no

other way. Thus, it excludes any other mode of filing Forms A and B

when a candidate is set up by a recognised political party. In our

view, therefore, the word `only’ used in clause (e) of para 13 is

indicative of the mandatory character of that provision.

37. Where a candidate is set up by a recognised political

party, clause (b)(i), Part-III of Form 2-B becomes relevant as by

making declaration therein the candidate makes a request that

symbol reserved for such party be allotted to him. It is for this reason

that the requirements of para 13 of the 1968 Order become integral

part of Form 2-B, Part-III under Rule 4 of the 1961 Rules where a

candidate is set up by a recognised political party. We are unable to

accept the submission of Mr. K.K. Venugopal that para 13 of the

1968 Order cannot be read into Rule 4. Non-compliance of

requirements of para 13 of the 1968 Order, in our view, is a defect of

substantial character and the nomination paper of a candidate

proposed by a single elector set up by a recognised political party

having such defect is liable to be rejected under Section 36(2)(b) as it

tantamounts to non-compliance of the provisions of Section 33,

25

namely, the nomination paper having not been completed in the

prescribed form.

38. The proposed candidate admittedly filed his nomination

paper proposed by a single elector having been set up by BJD, a

recognised political party in the State of Orissa, and, therefore, it was

incumbent upon him that the requirements of para 13 of the 1968

Order were fully complied with. In other words, it was necessary for

the proposed candidate that Forms A and B referable to clauses (b),

(c) and (d) of para 13, 1968 Order were submitted to the Returning

Officer duly signed in ink by the authorised person of BJD not later

than 3.00 p.m. on April 4, 2009.

39. Having held so, the other questions that need to be

considered by us in these appeals are, whether the High Court erred

in framing issue no. 6 at the time of decision in the election petitions,

i.e., whether the election petitioner Ranendra Pratap Swain filed the

original Form-A and Form-B being duly signed in ink by the

authorised person with the first set of his nomination and whether the

finding recorded by the High Court on that issue suffers from any

illegality.

40. The pleadings of the parties as well as the evidence let in

by them clearly show that the parties were seriously in issue whether

26

the original Form-A and Form-B duly signed in ink by the authorised

person of BJD were filed by the proposed candidate with the first set

of his nomination paper. The election petitioners (in both election

petitions) asserted that the proposed candidate had filed original

Forms A and B duly signed in ink by Shri Navin Patnaik (authorised

person of BJD) before the Returning Officer on April 4, 2009 at the

time of presentation of nomination paper and check list was issued

acknowledging receipt of these forms. The returned candidate

disputed the said assertion made in the election petitions. The

evidence of the Returning Officer, who was examined as court

witness no. 1, and his cross-examination on behalf of the proposed

candidate as well as the returned candidate also indicate that the

factual controversy in the election petitions centered around on the

filing of the original Form-A and Form-B duly signed in ink by the

authorised person of BJD with the first set of his nomination. It follows

that by framing issue no. 6 at the time of final decision of the election

petitions, no prejudice has been caused to the returned candidate. As

a matter of fact, no ground of prejudice has been raised in the

appeals nor such argument was advanced before us by the learned

senior counsel for the returned candidate. We, accordingly, hold that

the High Court did not commit any error in framing issue no. 6 which

27

was quite vital and material for decision in the election petitions. We

further hold that no prejudice has been caused to the returned

candidate by framing such additional issue at the time of the decision

in the election petitions.

41. The proposed candidate PW-2 deposed that he had

contested Orissa Assembly Elections held in 1990, 1995, 2000 and

2004 from 89-Athagarh Constituency and had won all these four

elections. While giving the details of nomination papers and the

documents presented personally by him on April 4, 2009 at 11.25

a.m., he stated that in the first set of nomination, Rabindra Nath Rout

(PW-1) was the proposer and along with the first set of nomination

paper, original Form-A and Form-B signed in ink by Shri Naveen

Patanaik, President and the authorised signatory of BJD were filed.

He deposed that he had presented four sets of nominations as the

nominee of BJD for 89-Athagarh Assembly Constituency and all his

four sets of nominations were complete in all respect. He also

deposed that immediately after he presented four sets of

nominations, as a nominee of BJD, the Returning Officer asked him

to take oath before him and he, accordingly, took oath before the

Returning Officer. From 11.25 a.m. to 11.45 a.m., the Returning

Officer examined the four sets of nominations presented by him and

28

thereafter the Returning Officer personally prepared the check list of

documents; put his signature on that and asked him (proposed

candidate) to sign on the said documents. The Returning Officer

retained with him one of such check list ticked duplicate (Ex. 22) and

handed over another to him (proposed candidate) ticked original

(Ex. 11).

42. The deposition of the proposer–Rabindra Nath Rout

(PW-1) is not of much help as he has stated that he was not present

in the office room of the Returning Officer when the proposed

candidate filed his nomination.

43. Significantly, the Returning Officer (CW-1) in his

deposition has not specifically denied that Form-A and Form-B in

original duly signed in ink by the authorised officer of BJD were not

filed by the proposed candidate. Rather he stated that had it come to

his notice that Form-A and Form-B duly signed in ink by the

authorised signatory were not filed by the proposed candidate, he

would have made an endorsement on the bottom of the check list to

that effect and asked the proposed candidate to file the original ink

signed forms within time. He admitted that no such endorsement was

made in the check list. The Returning Officer also stated in his

deposition that the nomination papers filed by the proposed candidate

29

were examined by him only from technical stand point and it was not

his duty to examine the correctness or validity of the documents at

the time of filing of the same.

44. Although there is voluminous documentary evidence, in

our view, the three documents viz; the check list (Ex. 11), Form 3-A

(Ex. 42/F) and the consolidated list of nominated candidates (Ex. 44)

are important. The check list marked `original’ (Ex. 11) given to the

proposed candidate is as follows :

Sl. Documents Whether filed

No. (write yes/no)

1. Affidavit in Form-26 yes

2. Affidavit as per the Commission’s order yes

dated 27.03.03

3. Certified extract of electoral roll (when Not

candidate is an elector of a different needed

constituency)

4. Forms A and B (applicable in the case yes

of candidates set up by political parties)

5. Copy of caste certificate (if the Not needed

candidate claims to belong to SC/ST)

6. Security deposit (whether made) yes

7. Oath/affirmation (whether taken) yes

30

The following documents which have not been filed should

be filed as indicated below :

(a) ____________should be filed latest by __________.

(b) ____________should be filed latest by __________.

Received.

……………………….

(Signature of candidate)

Date & time : 04.04.2009 — 11.45 a.m.

Place : ATHAGARH”

45. List of nominated candidates–Checks If (Ex.44) to the

extent it is relevant is as follows :

Name of Parliamentary/Assembly Constituency -89 Athagarh

No Name of the Address of Symbols Name of political Whether Forms Whether
. candidate candidate chosen in Party `A’ and `B’ have main

Order of (National/State or been received candidate or

preference registered) by by 3.00 p.m. on substitute

by the which the the last date for candidate of

candidate. candidate claims making the party (as

to have been set nominations in per Party’s

up/independent respect of the intimation

candidate candidate in Form B)

1 2 3 4 5 6 7

1 Ranendra At- Cunch Biju Janata Yes Main

Pratap Radhago Dal Candidate

Swain vindapur

P.O.-

Dhaipur,

P.S.

Athagarh

Dist.-

Cuttack

31

46. On April 4, 2009, the Returning Officer published a notice

in Form 3A on the notice board of his office in respect of the

nomination papers presented before him on that day. In that notice -

Form 3A (Ex. 42/F), it was mentioned in column no. 6 that proposed

candidate was nominee of BJD. Pertinently, April 4, 2009 was the last

day of nominations. Form 3A was displayed on the notice board after

3 p.m. Had the proposed candidate not filed Forms A and B as

required, i.e., duly signed in ink by an authorised person of BJD, he

would not have been shown as a nominee of that party in Form 3A.

47. On behalf of the returned candidate it was contended

before the High Court and reiterated before us that none of these

documents indicate that Forms A and B were filed in original. It was

submitted that these documents only indicate that Forms A and B

were filed as endorsed in the check list and were received before

3.00 p.m. on the last date of making nominations but these

documents do not prove that original Forms A and B signed in ink by

the authorised signatory of the party were filed.

48. It is true that neither in the check list nor in the list of

nominated candidates, the word `original’ before Forms A and B is

mentioned but it was not required to be mentioned as in the case of

candidates set up by political parties; the requirement is that such

32

candidates file Form A and Form B duly signed in ink by the

authorised officer of the concerned political party. In the event of filing

of Form A and Form B otherwise, an endorsement would obviously

be made against that column in the check list and time would be

given to make up the deficiency by 3.00 p.m. on the last day of

nomination. In the circumstances, having regard to the significance of

the check list, if Forms A and B were not filed in original by the

proposed candidate, an endorsement would have been made by the

Returning Officer that only xerox copies of Forms A and B were filed.

No doubt under Section 33(4) of the 1951 Act, the Returning Officer

is not expected to make a detailed scrutiny of the nomination paper

presented before him but in the case of a candidate who has filed his

nomination paper as a candidate set up by a recognised political

party and in view of para 13 of the 1968 Order, the Returning Officer

would surely check whether Form A and Form B suffer from any

defect.

49. As a matter of fact, to obviate unnecessary dispute about

presentation of nomination paper by a candidate, the Commission in

the handbook has provided for guidelines pertaining to check list.

Accordingly, a check list is required to be prepared duly certified by

the Returning Officer that all documents have been received. Such

33

check list is signed by the Returning Officer as well as by the

candidate. Where a check list certifies that Forms A and B (in the

case of candidates set up by a recognised political parties), have

been filed, such certificate leads to presumption that the procedural

requirement of filing the documents as prescribed in para 13 of the

1968 Order has been complied with. The presumption is of course

rebuttable but there must be sufficient evidence by the other side to

displace such presumption. In the present case, the check list

(Ex.11), Form 3A (Ex. 42/F) and the list of the nominated candidates

–checks IF (Ex. 44) give rise to presumption in favour of the

proposed candidate that he had filed Form-A and Form-B duly signed

in ink by the authorised person of BJD with the first set of his

nomination paper. The question is whether this presumption has

been rebutted by the returned candidate? We do not think so. The

oral evidence of the returned candidate (RW-1) and his witness (RW-

2) is not of much help insofar as this aspect is concerned. The

Returning Officer has not stated firmly and with certainty in his

evidence that the proposed candidate had not filed Form-A and

Form-B signed in ink by the authorised person of the BJD. Rather he

stated that had it come to his notice that the original Form-A and

Form-B duly signed in ink were not filed along with the nomination

34

paper by the proposed candidate, he would have made an

endorsement to that effect in the check list. Moreover, between 11.46

a.m. when the check list was prepared by the Returning Officer and

given to the candidate and 3.00 p.m. on April 4, 2009 (last date of

nominations) no intimation was issued by the Returning Officer or

received by the candidate with regard to non-filing of original Forms A

and B. No doubt, the burden is on the candidate set up by a

recognised political party to prove that he had filed Forms A and B

duly signed in ink by the authorised person of that party but that

burden gets discharged on production of evidence that raises

presumption in his favour. In the present case the proposed

candidate has been successful in discharging the burden placed

upon him.

50. The evidence of the Returning Officer is the important

part of the case. He admitted in his evidence that the xerox copies of

the nomination papers and documents were got prepared through his

officials for the purpose of displaying on the notice board. He also

admitted that since proposed candidate had filed all documents

required in the nomination form, no further endorsement was made in

the check list that he (proposed candidate) was required to file any

documents. Moreover, with regard to another candidate, Janaki Rout

35

in respect of 89-Athagarh Assembly Constituency, the Returning

Officer stated that he asked him to file the document which he had

not filed along with the nomination paper by 3.00 p.m. at the latest. In

respect of yet another candidate Bijaya Kumar Biswal, in the check

list, he had endorsed therein that the certified extract of the electoral

roll was not filed and asked him to file the same at 11.00 a.m. on April

6, 2009 at the latest. It is, thus, seen that the Returning Officer was

conscious of his duties as per the statutory provisions and the

guidelines issued by the Commission by way of handbook. On

presentation of nomination papers by respective candidates wherever

deficiencies were found, he made endorsement in the check list and

gave them time to make up the deficiency as per law. A careful

consideration of the evidence of Returning Officer leaves no manner

of doubt that he has not distorted the facts nor withheld anything from

the court with regard to presentation of nomination papers by the

candidates including the proposed candidate. The evidence on

record, i.e, the evidence of the Returning Officer, the documentary

evidence, namely, the check list, Form 3A displayed on the notice

board, the consolidated list of nominated candidates and the

evidence of PW-2 clearly establish that original Form-A and Form-B

signed in ink by authorised officer of the party (BJD) were presented

36

by the proposed candidate along with 1st set of nomination paper on

April 4, 2009. The finding returned by the High Court in this regard

cannot be said to be wrong or unjustified.

51. It is a fact that the original Forms A and B were not

available on record before the Returning Officer on April 6, 2009 at

the time of scrutiny. However, we are not persuaded by the

submission made on behalf of the returned candidate that in the

absence of original Forms A and B on record, the Returning Officer

had to proceed on the basis of records available before him on that

day and he had no option but to reject the nomination. The least

expected of the Returning Officer, when he found that original forms

A and B were not available on record, was to make brief enquiry

about non-availability of the forms A and B. It was all the more

necessary as the nomination papers along with accompanying

documents were sent for xeroxing.

52. Section 83 of the 1951 Act requires that an election

petition shall contain a concise statement of the material facts on

which the petitioner relies. It has been repeatedly held by this Court

that Section 83 is peremptory. In Samant N. Balakrishna, etc. v.

George Fernandez and others etc. 3, this Court observed in para 29

(Pg. 1212) of the Report thus:

3 AIR 1969 SC 1201

37

“………The section is mandatory and requires first a

concise statement of material facts and then requires the

fullest possible particulars. What is the difference between

material facts and particulars? The word `material’ shows

that the facts necessary to formulate a complete cause of

action must be stated. Omission of a single material fact

leads to an incomplete cause of action and the statement

of claim becomes bad. The function of particulars is to

present as full a picture of the cause of action with such

further information in detail as to make the opposite party

understand the case he will have to meet. There may be

some overlapping between material facts and particulars

but the two are quite distinct……….”

53. In Azhar Hussain v. Rajiv Gandhi4, this Court held that an

election petition must be dismissed if the mandatory requirements

enjoined by Section 83 to incorporate the material facts and

particulars relating to alleged corrupt practice in the election petition

are not complied with.

54. In Hari Shanker Jain v. Sonia Gandhi5, this Court

reiterated the mandatory provision contained in Section 83(1)(a) of

the 1951 Act and observed therein that the material facts required to

be stated are those facts which can be considered as materials

supporting the allegations made. In other words, this Court said that

they must be such facts as would afford the basis for the allegations

made in the petition and would constitute the cause of action as

understood in the Code of Civil Procedure, 1908.

4 AIR 1986 SC 1253

5 (2001) 8 SCC 233

38

55. A 3-Judge Bench of this Court in Pothula Rama Rao v.

Pendyala Venakata Krishna Rao and Others6, stated in paragraph 8

(at Pg. 6) of the Report as follows :

“If an election petitioner wants to put forth a plea that a

nomination was improperly rejected, as a ground for

declaring an election to be void, it is necessary to set out

the averments necessary for making out the said ground.

The reason given by the Returning Officer for rejection and

the facts necessary to show that the rejection was

improper, should be set out. If the nomination had been

rejected for non-compliance with the first proviso to Sub-

section (1) of Section 33, that is, the candidate’s

nomination not being subscribed by ten voters as

proposers, the election petition should contain averments

to the effect that the nomination was subscribed by ten

proposers who were electors of the Constituency and

therefore, the nomination was valid. Alternatively, the

election petition should aver that the candidate was set up

by a recognized political party by issue of a valid ‘B’ Form

and that his nomination was signed by an elector of the

Constituency as a proposer, and that the rejection was

improper as there was no need for ten proposers. In the

absence of such averments, it cannot be said that the

election petition contains the material facts to make out a

cause of action.”

56. In a recent decision in Nandiesha Reddy v. Kavitha

Mahesh7, this Court observed that where election petitioner alleges

improper rejection of his/her nomination paper by the Returning

Officer, he/she must set out in election petition reasons given by the

Returning Officer for refusal to accept nomination paper and facts

necessary to show that refusal was improper. In paragraphs 36 and

37 of the Report (at Pg. 734), this Court held as under :

6 (2007) 11 SCC 1

7 (2011) 7 SCC 721

39

“36. Section 83 (1)(a) inter alia provides that an election

petition shall contain a concise statement of the material

facts. Further, Section 87 of the Act provides that subject to

the provisions of the Act and the Rules framed thereunder

every election petition shall be tried in accordance with the

procedure applicable under the Code of Civil Procedure to

the trial of suits. Order VI of the Code of Civil Procedure is

devoted to the pleadings generally and Rule 2(i) thereof,

inter alia, provides that every pleading shall contain a

statement in a concise form of all the material facts on

which the party pleading relies for claim. In an election

petition, which does not contain material facts, no relief can

be granted.

37. The phrase “material fact” as used in Section 83 (1)

(a) of the Act or Order 6 Rule 2 of the Code of Civil

Procedure has not been defined in the Act or the Code of

Civil Procedure. In our opinion all specific and primary facts

which are required to be proved by a party for the relief

claimed are material facts. It is settled legal position that all

material facts must be pleaded by the party on which the

relief is founded. Its object and purpose is to enable the

contesting party to know the case which it has to meet. An

election petition can be summarily dismissed if it does not

furnish the material facts to give rise to a cause of action.

However, what are the material facts always depend upon

the facts of each case and no rule of universal application

is possible to be laid down in this regard.”

57. In view of the above legal position, there is no doubt that

in a case under Section 100(1)(c) of the 1951 Act, the only issue

before the Court is improper rejection of nomination paper and the

court is required to examine the correctness and propriety of the

order by which the nomination paper of a candidate is rejected. The

grounds set out in the election petition challenging the order of

rejection of nomination paper, thus, form the basis of adjudication in

the election petition.

40

58. The learned senior counsel for the appellant submitted

that the material facts relating to the ground on which election of the

returned candidate has been set aside have neither been pleaded in

the election petition nor have been proved by leading cogent

evidence. We do not find any merit in this contention.

59. In the Election Petition No. 4 of 2009 filed by the

proposed candidate, the order of rejection of nomination has been

assailed, inter alia, on the following grounds:

“5(C) That the reasonings given in the decision of the

Retuning Officer, in his order of rejection dtd.

06.04.2009 is also not legally sustainable for the

following reasons :-

(a) The Nominee of B.J.D. Nominee for 87-BARAMBA

Assembly Constituency was submitted on 03.04.2009. The

Returning Officer had the occasion to examine the same and grant

the Check List on 03.04.2009 i.e. one day before the submission

of the Nomination of the Election Petitioner, whereas the Election

Petitioner submitted his Nomination on 04.04.2009. If according to

the Returning Officer, “from comparison of two sets of Form A & B

submitted in 87- BARAMBA, he came to conclusion that the set of

Form A & B, submitted by the Election Petitioner along with his

first set of Nomination was not original and not signed in ink but a

xerox copy, then in ordinary course of human conduct and in view

of instruction of the Election Commission”, he would have

recorded an endorsement to that effect in the CHECK LIST which

he himself gave at 11.45 AM on 04.04.2009, and would have

further called upon the Election Petitioner to produce the same by

3 PM on the same day.

(b) The Returning Officer instead of making a comparison

with the Form A & B submitted along with the Nominations of 87-

BARAMBA, should have referred to the Form A & B, which was

communicated both to him & to the CEO under the provisions of

Election Symbol (Reservation & Allotment) Order – 1968.

41

5(D) That a plain reading of four Orders of rejection

recorded by the Returning Officer on four sets of

Nominations submitted by the Election Petitioner

spells out so much so discrepancy that the same itself

is sufficient to conclude that the order suffers from

inconsistency and is an outcome of non application of

mind.

5(E) That on the date of scrutiny no objection was raised

by any of the contesting candidates or any person on

their behalf present at the time and place of scrutiny

to the effect that the Form A & B, filed by the Election

Petitioner with his first set of “NOMINATION” were not

original not it contains the signature of the authorised

person IN INK were Xerox copies.

The complaint was raised by the Returning Officer

himself who had received all the four sets of

Nominations, along with other affidavits, documents

original money receipt and original Form A & B, duly

signed in ink, by the authorised person, and had

signed the CHECK LIST which is a document

required to be signed & delivered to the candidate in

exercise of his statutory powers on 04.04.2009. The

partisan attitude and hostility of the Returning Officer

towards the Election Petitioner emanates from his

own conduct, when he refused minimum opportunity

to the Election Petitioner to REBUT the so called

allegations regarding non-submission of original Form

- A & B containing signature of authorised person in

ink, which a candidate is entitled to as of right under

the Rules of Election Law.”

60. The High Court, inter alia, considered the evidence of

PW-2 and also the evidence of the Returning Officer, the

documentary evidence, namely, the check list (original-exhibit 11),

Form 3-A (exhibit 42/F) and consolidated list of nominated candidates

42

–checks IF (exhibit-44) and the contentions of the returned

candidate and held as under :

“13. As found from the evidence of P.Ws 1 and 2, the

latter filed four sets of Nomination along with other

accompanying documents. In the 1st set of Nomination

Papers, he filed original ink signed Form A and Form B.

Accordingly, the Returning Officer issued the Check List to

Sri Ranendra Pratap Swain. They further deposed that

while handing over the Check List, the Returning Officer

stated that “whatever original forms and documents that

you have submitted and I have received from you have

been clearly mentioned by me in the Check List. You

preserve the Check List with you. If in fact the Returning

Officer had stated so, it being a material fact, the same

should have been averred in the election petition. In

absence of pleading this part of evidence of P.Ws 1 and 2

cannot be relied upon. According to the evidence of

Returning Officer, on examining the documents on

technical stand point, he found the election Petitioner, Sri

Ranendra Pratap Swain to have filed all required

documents and accordingly he issued the Check List

marked Ext. 22 to him. He fairly admitted in his evidence

that he can distinguish a xerox copy from its original. He

further deposed that had it come to his notice that Sri

Ranendra Pratap Swain filed the xerox copies of the

original ink signed Form A and Form B, he would have

endorsed it in the bottom of the Check List and directed

him to file the original ones. Again on 04.04.2009 after the

time fixed for filing the Nomination Papers was over, he

prepared copy of those documents in Form 3A to publish in

the notice board. At that time also he could not detect the

filing of Xerox Copies of the original ink signed Form A and

Form B. Furthermore, when he prepared the consolidated

“List of Nominated Candidates-Checks if”. He could not

detect the so called defect. He mentioned the symbol

“Conch” in the appropriate column of the said form so also

the name of political party, which set up the candidate, Sri

Ranendra Pratap Swain. Since the signature of P.W. 1 the

proposer of Ranendra Pratap Swain, partially got effected,

the Returning Officer asked him to put another signature

and accordingly he did it. When the Returning Officer was

alive to find out an effaced signature in the Nomination, it

appears some what fishy how he filed to detect the Xerox

43

copies of the original ink signed Form A and Form B, if

filed. The original ink signed Form A and Form B, if filed.

The contention of learned counsel for the respondent that

there was no pleading with regard to Form 3A and

consolidated “List of Nominated Candidates-Checks If” in

either of the election petitions and as such the same

cannot be relied upon cannot be accepted. It is the

fundamental rule of pleadings that pleading must contain a

statement of the material facts, but not the evidence by

which they are to be proved. In the present case, it has

been averred in the election petitions that Shri Ranendra

Pratap Swain filed the Nomination along with required

documents including original Form A and Form B ink

signed, before the Returning Officer. Moreover, Form 3A

and consolidated “List of Nominated Candidates-Checks if”

have been admitted as Exts. 42/f and 44 respectively

without objection. So their validity cannot be questioned.

As per the decision State of Orissa and others (supra) their

probative value is also very high. Even if those documents

were not referred to in the election petitions, the evidence

led in that respect can be accepted.”

61. The High Court finally concluded that the proposed

candidate had filed the original Form-A and Form-B duly signed in ink

by the authorised person of BJD with the first set of his nomination

and, accordingly, decided Issue No. 6 in favour of election petitioners.

The consideration of the matter by the High Court in para 14 of the

judgment may be reproduced as it is.

“14. No doubt at the time of filing of Nomination, the

Returning Officer is not required to scrutinize the

Nomination and the accompanying documents in minor

details, but he is duty bound to examine the same on

technical stand point. Now the pertinent question is

whether he was expected to examine whether the original

ink signed Form A and Form B were filed, while examining

the Nomination Paper along with the accompanying

documents, on technical stand point. In my considered

44

opinion, he had to do so, particularly when he deposed that

had it come to his notice that Sri Ranendra Pratap Swain

filed the Xerox copies of the original ink signed Form-A and

Form-B, he would have endorsed it in the bottom of the

Check List and directed him to file the original ones. At this

stage Mr. Palit, learned counsel for the respondent

submitted that unless, an election petitioner fully

established his case, it would not be proper to set aside the

election. In support of his submission, he relied on the

decision in the case of Ram Phal Kundu Vs. Kamal

Sharma, AIR 2004 Supreme Court 1657, where the apex

Court held as follows.

“Therefore, unless the election petitioner fully

established his case, it will not be legally correct to set

aside the election of the appellant.”

As found from the evidence of P.Ws. 1 and 2 the latter filed

the original ink signed Form A and Form B in his 1st set of

Nomination. This part of their evidence could not be

shaken. Even no suggestion was given to P.W. 1 that P.W.

2 did not file original ink signed Form A and Form B in his

1st set of Nomination. So, the above decision is not

applicable to the present case.

The Returning Officer has admitted in his evidence that the

Nominations along with all the accompanying documents

of all the eight candidates were Xeroxed outside in Anand

Xerox of Athagarh. He has also admitted that on

04.04.2009 all the four sets of Nomination papers of Sri

Ranendra Pratap Swain were Xeroxed to display the same

in his Notice Board. The possibility that, in the process the

original ink signed Form A and Form B were inadvertently

exchanged for the Xerox copies thereof, cannot be ruled

out. Under such premises, in my considered opinion, Sri

Ranendra Pratap Swain had filed the original Form-A and

Form-B duly signed in ink by the authorised person with the

1st set of his Nomination. Accordingly, issue no. 6 is

answered in affirmative.

62. In what we have already discussed above, we do not find

any error in the consideration of the matter by the High Court.

45

63. The election petitioner, as noticed above, in ground 5(E)

set up the case that the objection of non-filing of original Forms A and

B signed in ink by the authorised officer of the party was not raised by

any of the contesting candidates or any person on their behalf

present at the time and place of scrutiny. It was the Returning Officer

who raised the issue of non-filing of original Forms A and B but he

refused minimum opportunity to the election petitioner to rebut the

same. In our view, the Returning Officer ought to have acted in terms

of proviso to Section 36(5) of the 1951 Act and afforded an

opportunity to the election petitioner until next day to rebut the

objection and show to the Returning Officer that the proposed

candidate had filed Forms A and B duly singed in ink by the

authorised person of BJD. PW-3, the authorised representative of the

election petitioner did state in his evidence that he requested to the

Returning Officer, when he raised the objection that original Forms A

and B were not filed, to enquire into the matter about the missing

Forms A and B. It was not necessary to state in the election petition

the evidence of PW-3 in support of ground 5(E).

64. The proviso that follows sub-section (5) of Section 36 of

the 1951 Act provides that in case an objection is raised by the

returning officer or is made by any other person the candidate

46

concerned may be allowed time to rebut it not later than the next day

but one following the date fixed for scrutiny, and the returning officer

shall record his decision on the date to which the proceedings have

been adjourned.

65. In Rakesh Kumar v. Sunil Kumar8, this Court held in para

21 (Pg. 500) as under:

“21. ………The use of the expression “not later than the

next day but one following the date fixed for scrutiny”

under the proviso to Sub-section (5) of Section 36 of the

Act un-mistakably shows that the Returning Officer has

been vested with the discretion to fix time to enable a

candidate to rebut an objection to the validity of his

nomination paper and such a discretion has to be fairly

and judicially exercised. The refusal to grant an

opportunity to the respondent and rejecting his nomination

paper was clearly an arbitrary exercise of the discretion

vested in the Returning Officer. The Returning Officer has

also not given any cogent reasons for his refusal to grant

an opportunity as prayed for by the respondent. The

Returning Officer appears to have been labouring under

some misconception when he recorded that the political

party “cannot be given further time to change such

authorisation after scrutiny”. Under the proviso to Section

36(5) of the Act, the scrutiny itself would have been

postponed to the adjourned time and, therefore, it was not

a case of meeting the objection after scrutiny of the

nomination papers. The failure to exercise his jurisdiction

to postpone the decision as to the validity of the

nomination paper of the respondent, even after the

respondent had sought time to meet the objection, indeed

rendered the rejection of the nomination paper of the

respondent as both improper and illegal. The Returning

Officer is not expected to reject a nomination paper,

without giving an opportunity to the candidate or his

representative present at the time of scrutiny to meet an

objection, capable of being met, particularly where such

an opportunity is sought for by the candidate or his

8 (1999) 2 SCC 489

47

representative and no one present on behalf of the other

candidates had opposed the claim made by the

respondent. Having raised the objection suo motu, the

request of the respondent who was present and sought

time in writing to seek clarification from the BJP as to who

was its official candidate, the Returning Officer in all

fairness was obliged to grant time to the respondent as

prayed for by him and postponed the scrutiny to the next

day but he ought not to have rejected his nomination

paper in hot haste. The Returning Officer, obviously, failed

to exercise his jurisdiction under Section 36(5) of the Act

properly and thereby fell in a grave error in rejecting the

nomination paper of the respondent……….”

66. In the facts and circumstances of the present case,

which have already been noticed above, the Returning Officer erred

in acting in hot haste in rejecting the nomination paper of the

proposed candidate and not postponing the scrutiny to the next day,

particularly, when a request was made by the authorised

representative of the proposed candidate. The election petitioners

have been successful in proving the improper rejection of the

proposed candidate’s nomination paper. In other words, they have

been able to prove the ground for setting aside appellant’s election

to 89-Athagarh Assembly Constituency under Section 100(1)(c) of

the 1951 Act.

67. The consideration of the matter by the High Court does

not suffer from any factual or illegal infirmity. In this view of the

48

matter – and the factual and legal position discussed above – we

see no ground to interfere with the impugned judgment.

68. The appeals, accordingly, fail and are dismissed with no

order as to costs.

………………………J

(R.M. LODHA)

………………………………..J.

(JAGDISH SINGH KHEHAR )

NEW DELHI

DECEMBER 9, 2011.

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