RAKESH KUMAR Vs. SUNIL KUMAR

JUDGEMENT

(1.) THIS appeal, under Section 116-A of the Representation of the People Act, 1951 (hereinafter the 'Act'), is directed against the judgment and order of the High Court of Punjab and Haryana dated 5/11/1997. By the impugned judgment a learned single Judge of the High Court allowed Election Petition No. 3 of 1997 filed by the respondent herein and set aside the election of the appellant herein, the returned candidate, from 57, North Ludhiana Assembly Constituency of the Punjab Vidhan Sabha.

(2.) THE Election Commission of India notified the holding of elections to the Punjab Vidhan Sabha. THE election programme for 57, North Ludhiana Assembly Constituency was fixed as under : <FRM>JUDGEMENT_489_2_1999Html1.htm</FRM> THE Election Commission of India, however, rescheduled the programme, as 23/01/1997 was declared as a National Holiday. THE re-scheduled programme was as follows :- <FRM>JUDGEMENT_489_2_1999Html2.htm</FRM>

(3.) ON the last date of withdrawal of the candidature, the appellant and 9 other candidates remained in the fray. After the polling, the counting of ballots took place on 9/02/1997 and the appellant was declared elected having secured 33614 votes. After the declaration of the result of the election, the respondent filed an Election Petition (No. 3 of 1997) challenging the election of the returned candidate on the ground that his nomination paper as well as those of S/Shri Vir Abhimanyu and Harish Kumar had been wrongly and illegally rejected. It was alleged by the respondent that the Returning Officer had wrongly rejected his application, filed under Section 36(5) of the Act, seeking an opportunity to meet the objection raised by the Returning Officer. The Election Petitioner was contested and the appellant resisted the same asserting that the nomination papers of the respondent as well as of S/Shri Vir Abhimanyu and Harish Kumar had been rightly rejected for non-compliance with the mandatory provisions of Section 33(1) of the Act as amended by Act No. 21 of 1996. It was maintained that since no intimation had been given to the Returning Officer till 3.00 p.m. on the date of the scrutiny about the official candidate by BJP, the Returning Officer was justified in rejecting their nomination papers. From the pleadings of the parties, following issues were raised :