PRAHLADAN Vs. VARKALA KAHAR

JUDGEMENT

(1.) The above election petition has been filed under Sections 80, 81, 83, 84 and 100(1)(c) of the Representation of People Act, 1951, hereinafter referred to as the "Act" challenging the election of the respondent from No.127 of Varkala Legislative Assembly Constituency in the General Election held on 13.04.2011.

(2.) Petitioner, as a candidate, submitted two nomination papers, numbered as ARO-13 and ARO-14, to contest the election from the above Constituency. He submitted his nomination as a candidate of the Bahujan Samaj Party, for short, the 'BSP', a registered National Political Party. Scrutiny of the nomination papers were conducted by the Returning Officer on 28.03.2011. The Returning Officer rejected both the nomination papers of the petitioner holding that the affidavit in Form No.26, though signed by the Notary Public, was not duly attested since the stamp of the required value has not been affixed on such affidavit. Certified copy of the order rejecting the nomination paper ARO-13 is Annexure-B and the nomination paper ARO-14 is Annexure-C. There are two affidavits attached to Form No.26 and both affidavits were attested by the Notary Public but by mistake notary stamp was affixed only in one affidavit. When his nomination papers on submission were verified no formal defect was noticed or pointed out. Petitioner pointing out the above, at the time of scrutiny, requested for allowing him to affix the notary stamp and, thus, cure the defect, but it was declined. Petitioner had also pointed out the instruction in Chapter VI of the Hand Book for Returning Officers, which specifically states that if the prescribed affidavits have been filed, but are found or considered to be defective or containing false information, the nomination should not be rejected on that ground. Discarding and turning down the request of the petitioner, the Returning Officer rejected his nomination papers. What transpired as above could be seen from the video recorded at the time of scrutiny, is the case of the petitioner. Orders passed by the Returning Officer rejecting his nomination papers are illegal and arbitrary, and defect noticed was not of a substantial character, and what has been pointed out by the Returning Officer, in fact, is not a defect at all, is his case. Even assuming that it is a defect, petitioner should have been granted an opportunity to cure such defect, is his further case. Nomination papers of the petitioner were improperly rejected by the Returning Officer, and as such, the election conducted on 13.04.2011, in which, the respondent was declared elected, is void ab initio, according to the petitioner. Improper rejection of the nomination papers of the petitioner has adversely and materially affected the result of the election, and as such, the election of the respondent as the returned candidate is liable to be set aside, is his case. Petitioner stating thus has sought for a declaration that the election of the respondent from No.127 of the Varkala Legislative Assembly Constituency is void and for setting aside the result of the election declared on 13.05.2011, with his costs.

(3.) Respondent filed a written statement resisting the challenge against his election as the returned candidate. Maintainability of the election petition was impeached contending that it does not disclose a cause of action. Petitioner has not filed any valid nomination as he has not complied with Rule 4-A of the Conduct of Election Rules, for short, the "Rules", in filing the nomination as it was not accompanied by an affidavit in Form No.26. Attestation of the Notary should be on the stamp of the required value and it should be affixed while signing by the Notary. If that has not been done it is not a curable mistake to make notarization legal. Since no valid nomination was presented, the Returning Officer has no alternative other than rejecting such invalid nomination. That fatal defect was not noticed at the time of submitting the nomination papers is immaterial where the defect is of a substantial nature, and the nomination papers were rightly rejected by the Returning Officer. Order of the Returning Officer, according to the respondent, is perfectly in order and consistent with the provisions and Rules. Non-production of the two affidavits as part of the election petition while referring to the same as having been properly attested is fatal to the entertainability of the election petition since the respondent has been prejudiced from knowing about the contents of the affidavits. Petitioner has relied on the video recorded at the time of scrutiny but neither the details thereof nor the video is produced with the election petition, and, that would also show that the petition has not been properly presented. Verification of the petition is also not proper, and as such, the election petition is defective and liable to be rejected. Annexures produced are not properly verified and therefore there is non-compliance of the provisions of Section 83 of the Act, making the election petition defective and liable to the rejected. Petitioner has incorporated by reference in the election petition Hand Book published by the Election Commission, but the same has not been produced. The election petition, being not statutory, when he has relied on that book, he was bound to produce the same as an Annexure to the election petition. Non-production of the Hand Book renders the election petition defective, and on that ground also, it is liable to be rejected. The order passed by the Returning Officer rejecting the nomination papers of the petitioner was perfectly correct since his nomination papers were not accompanied by the affidavits prescribed by the Rules. There were other candidates also in the field besides the respondent, but the petitioner has suppressed that fact in the election petition. Election of the respondent as the returned candidate is not liable to be declared void by reason of rejection of nomination papers of one of the candidates. Allegation raised that the rejection of the petitioner's nomination papers has materially affected the election, is absolutely unsustainable and not supported by any material facts pleaded in the petition. There is no ground to set aside the election of the respondent as the returned candidate, and serious prejudice would be caused to the electorate if the election is set aside on the flimsy ground as the Constituency will be left unrepresented and the majority will reflected in favour of the respondent will be seriously and prejudicially affected, is the further contention of the respondent to urge for dismissal of the election petition, with his costs.