SATBIR SINGH KADIAN Vs. BIJENDER

JUDGEMENT

(1.) - Defeated candidate (hereinafter referred to as 'the petitioner') has filed this petition under sections 80 and 81 read with sections 100 and 101 of the Representation of People Act, 1961 (hereinafter referred to as 'the Act') challenging the election of the returned candidate respondent from 19 - Naultha Assembly Constituency of Haryana held in April 1996 on the grounds of illegal rejection of nomination papers of Manoj Kumar S/o Shiv Charan and Karam Chand S/o Sant Ram; illegal acceptance of the nomination paper of the respondent and also on the basis of error in the counting of polled votes and for declaring the election of the respondent to the Legislative Assembly of Haryana as void.

(2.) A Notification was issued for holding general elections to all the Assembly Constituencies in the State of Haryana in March 1996. As per the election programme notified, the last date of filing the nomination papers was upto 3.4.1996. The date of Scrutiny was 4.4.1996 and the last date of withdrawal of the nomination papers was 6.4.1996. Elections, if any, were to be held on 27.4.1996. Petitioners contested the election as a candidate of a recognised party, namely Samata Party, and the respondent contested the election on the ticket of Haryana Vikas Party. After the last date of withdrawal of nomination papers, 18 candidates, including the petitioner and the respondent, were left in the election fray. Election was held on 27.4.1996, counting of votes started on 8.5.1996 and the result was declared on 10.5.1996. Respondent was declared elected by a margin of 1123 votes. Respondent polled 24,790 votes while the petitioner polled 23,667 votes.

(3.) SCRUTINY of nomination papers was held on 4.4.1996 in the office of Rao Surat Singh, Returning Officer. Time for scrutiny was from 11.00 AM to 3.00 PM. Petitioner, along with his proposer Amar Singh, reached the office of the Returning Officer at about 10.45 AM on 4.4.1996. At that time, a number of candidates, their, proposers and supporters were present, which included Manoj Kumar, candidate his proposer Manoj Kumar and Karam Chand, another candidate and his proposer Mauji Ram. Besides these, others were also there. It is alleged that the Returning Officer called the candidates and their proposers in his room for scrutiny purposes at 11.00 A.M. The scrutiny was an eye wash as the Returning Officer had already got typed his orders regarding acceptance/rejection of nomination papers on each of the nomination papers. Returning Officer, in the presence of his staff and the candidates who were present at that time, announced the names of persons whose nomination papers had been accepted and put his signatures on the orders already typed on the nomination papers. He, then declared that the nomination papers of other candidates were invalid and he was going to reject the same. Before he could affix his signatures on the rejection order of the nomination papers which had been declared as invalid, Manoj Kumar, candidate and his proposer Manoj Kumar, raised an objection to the effect that the nomination papers of Manoj Kumar should not be rejected and they be permitted to make the necessary corrections in the nomination papers which had been promised to them by the Returning Officer on the previous date. Similar request was made on behalf of Karam Chand. Petitioner also made a request that Manoj Kumar and Karam Chand, candidates be permitted to correct the clerical mistakes in their respective nomination papers. The request was declined by the Returning Officer stating that the correct particulars of the candidates and their proposers should have been given in the beginning and since he had already got the order typed about the rejection of nomination papers, the request made by the candidates and the petitioner could not be accepted. Nomination papers of Manoj Kumar were rejected on the ground that at serial No. 33 of Booth No. 156 mentioned in the nomination papers, there was no person by the name of Manoj Kumar S/o Suraj Mal, who was the proposer of Manoj Kumar and that Manoj Kumar, candidate, had proposed himself as a candidate. Nomination papers were rejected as there was no proposer to his candidature. Nomination papers of Karam Chand, the other candidate, were rejected on the ground that there was no booth and serial number in the electoral roll which had been mentioned in the nomination papers filed by Karam Chand. Case of the petitioner is that serial number of Manoj Kumar S/o Shiv Charan, candidate, is at serial number 379 while that of Manoj Kumar S/o Suraj Mal, proposer, is at serial No. 454 of the Voters' List of Booth and Part No. 156 of Village Diwana. Manoj Kumar, proposer, had correctly written the Part/Booth number i.e. 156, in the nomination papers while proposing the name of Manoj Kumar candidate, but by oversight and clerical mistake he had wrongly mentioned the serial number as 33 against the correct number 454. Karam Chand and his proposer Mauji Ram had filled in the serial number of their votes and Part number of the electoral roll from the electoral roll prior to the current electroral roll on the basis of which the election was to be held. Name of Karam Chand was mentioned at serial number 112 and the name of his proposer was at serial number 333 of Booth/Electoral Part No. 85(A). Karam Chand produced the previous electoral roll and sought to correct the serial number of their votes as well as Part number of the electoral roll from the current electoral roll, but the same was declined by the Returning Officer. It is alleged that the mentioning of wrong voters' serial number and Part Number of the electoral roll in the nomination papers is not a substantial defect which could entail the rejection of the nomination papers. Under Proviso to section 33(4) of the Act, it is obligatory on the part of the Returning Officer to satisfy himself on the presentation of a nomination paper that the name and electoral roll number of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll. Under section 36(4) of the Act, the Returning Officer cannot reject any nomination paper on the ground of any defect which is not of substantial nature. Wrong mentioning of the correct Voters' serial number and Part number of the electoral roll was not a substantial defect and the same could be corrected at the time of scrutiny provided the Returning Officer had granted due opportunity to the candidates. Returning Officer was duty bound to give an opportunity, both to Manoj Kumar and Karam Chand, to make the necessary corrections in their nomination papers at the time of scrutiny and the failure to do so has resulted in illegal rejection of the nomination papers which has vitiated the result of the election, and, therefore, the election of the returned candidate is liable to be set aside on this ground.