RAM BHUAL Vs. AMBIKA SINGH

JUDGEMENT

(1.) In the elections to the Uttar Pradesh Legislative Assembly held on 21-2-2002, the appellant herein was declared elected from 166, Kauriram Assembly Constituency (General). The election of the appellant was challenged by the respondent, the defeated candidate, by Election Petition No. 5 of 2002 filed in the High Court of Allahabad under Section 80 read with Section 81 of the Representation of the People Act, 1951. The challenge to the election was rested on Section 100(1)(c) of the Act. The plea was that the Returning Officer, while scrutinizing the nominations, had wrongly rejected the nomination of an independent candidate Sita Ram examined as P.W.2. The appellant resisted the election petition by questioning the right of the election petitioner to file the election petition based on the rejection of the nomination of another candidate, who had not come forward to challenge that rejection. The High Court, based on the decision of this Court in Somnath Rath vs. Bikram K. Arukh and others (1999) 2 Suppl. SCR 410, took the view that the wrongful rejection of the nomination of any candidate can be taken as a ground for challenging an election in an election petition by the defeated candidate and hence the election petition was maintainable. It then proceeded to consider whether the nomination paper of Sita Ram, P.W.2 was improperly rejected. Having come to the conclusion, on the pleadings and the evidence in the case, that the nomination of Sita Ram was improperly rejected by the Returning Officer by Ex. A-2 order, it held that the election of the appellant was liable to be declared void in terms of Section 100(1)(c) of the Act. Thus the election petition was allowed and the election of the appellant was declared void. Feeling aggrieved, the appellant has filed this appeal under Section 116-A of the Act.

(2.) P.W.2 Sita Ram, being an independent candidate, had to be proposed by at least ten (10) qualified persons. While furnishing the details of the qualified persons, Sant Lal, the ninth proposer, was shown at Serial No. 392 in Part 91 in the Voters list. The Returning Officer on finding that Serial No. 392 in the Voters list was not Sant Lal, straightway rejected the nomination of Sita Ram. Sita Ram did not agitate the matter further, though he claimed in his evidence that he had given a complaint in writing to the Returning Officer, the same day, and on his having failed to receive it, had taken it to the District Collector who told him that his grievance will be looked into after the elections. But nothing was produced to show that a complaint in writing was made by Sita Ram.

(3.) The election-petitioner pleaded that the name of Sant Lal, the ninth proposer of Sita Ram, was at Serial No. 352 of the same page of the Voters list at Serial No. 392 and when the nomination of Sita Ram was taken up for scrutiny and the Returning Officer while verifying the nomination, took the stand that there was no voter by name Sant Lal at Serial No. 392, Sita Ram pointed out to the Returning Officer that serial number shown was only an error and that Sant Lal was the voter whose name was shown at Serial No. 352 which was on the same page of the Voters list; that this was a minor error which was liable to be overlooked and his nomination accepted. It was further pleaded that the Returning Officer without following the mandate of Section 36 of the Act and especially sub-section (4) thereof and the proviso to Section 33(4) of the Act had wrongly rejected the nomination and the rejection was clearly bad in law. We must say that these facts so pleaded are material particulars within the meaning of Section 83(1) of the Act. Udhav Singh vs. Madhav Rao Scindia (AIR 1976 SC 744) can be referred to in this connection. In his written statement, the appellant, the returned candidate, did not deny the allegation that Sita Ram was present at the scrutiny of the nomination papers and had pleaded with the Returning Officer to accept his nomination, since the ninth proposer, Sant Lal was in the Voters list and the small clerical error in showing the serial number was liable to be ignored. In the light of this position emerging from the non-traverse in the written statement, the Judge assigned for trying the election petition, appreciated the evidence in the case and accepting the evidence of the election-petitioner as P.W.1 and that of Sita Ram examined as P.W.2, in the light of the evidence led by the appellant as R.W.1, held that the election-petitioner had proved that when the Returning Officer took the nomination paper of Sita Ram for scrutiny, Sita Ram had pointed out that there was no defect except in showing the serial number of Sant Lal in the Voters list as 392, whereas it was really Serial No. 352 in Part 91 on the same page of the list. The error in terms of Sections 33(4) and 36(4) of the Act was only a minor error or an error that should have been permitted to be cured by Sita Ram and in that situation, it had to be held that the rejection of the nomination of P.W.2 Sita Ram, was improper and in the light of Section 100(1)(c) of the Act, the election of the appellant had to be declared void. Thus, the election petition was allowed by the High Court.