SHALIGRAM SHRIVASTAVA Vs. NARESH SINGH PATEL

JUDGEMENT

(1.) This is an election petition by the defeated candidate under Section 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) for declaring the election of the returned candidate as void on the ground that the nomination of Bhagwan Singh, a third candidate, has been improperly rejected.

(2.) In the bye-election to Bhojpur assembly constituency in Madhya Pradesh held in February, 2000, respondent Shri Naresh Singh Patel was declared elected. Petitioner Shaligram Shrivastava is a defeated candidate. Bhagwan Singh had also filed his nomination paper. A certified copy of that nomination paper is Ex. P. 1. It was on the prescribed form 2-B under Rule 4 of the Conduct of Elections Rules, 1961. It was declared by Bhagwan Singh in this form "I am qualified and not also disqualified" for being chosen to fill the seat. The scrutiny of the nomination papers took place on 1-2-2000. It was discovered that Bhagwan Singh had not filled up the pro forma prescribed by the Election Commission by the letter dated 28-8-1997 (Ex.P.8 page 54) to ascertain whether the candidate had been convicted or not for any of the offences mentioned in Section 8 of the Act. The sample of this pro forma is Ex. 9. Bhagwan Singh did submit an affidavit (Annexure 1) in support of the said pro forma in which it was sworn by him that the information given in the pro forma is correct. This affidavit was of no significance as the pro forma was left blank. The gist of this pro forma is that the candidate is required to declare that he has not been convicted for any offence mentioned in Section 8 of the Act and if he has been convicted, the details thereof. Bhagwan Singh was not present at the time of the scrutiny of the nomination papers by the returning officer on 1-2-2000. The Returning Officer passed an order on the nomination paper of Bhagwan Singh that as the pro forma prescribed by the Election Commission has not been filled up by him it cannot be ascertained whether he has been convicted or not for any offence mentioned in Section 8 of the Act and therefore, the nomination paper was rejected. Bhagwan Singh has not challenged the rejection of his nomination paper.

(3.) The petitioner's case is that Bhagwan Singh had declared in the nomination form that he was qualified and not disqualified to fill the seat. It was implicit in this declaration that he has not been convicted for any offence. Therefore, his nomination form could not be rejected. There was no defect of a substantial character within the meaning of Section 36(4) of the Act. It has been further pleaded that Bhagwan Singh's nomination paper fully complied with the requirements of law under the Act and the rules framed thereunder and it was not necessary to fill up the pro forma prescribed by the Election Commission. It is stated that the instruction of the Election Commission in the letter dated 28-8-1997 (Ex. P. 8 page 55) is only an executive fiat and failure to fill up that pro forma could not be a ground for rejection of the nomination paper.