RAMA NAND PRASAD SINGH Vs. VIDYA SAGAR NISHAD

JUDGEMENT

(1.) This Election Petition has been presented and filed on behalf of Sri Rama Nand Prasad Singh against Sri Vidya Sagar Nishad, the candidate who was declared elected in the Bihar Legislative Assembly in the election held in 1995 from 181-Parbatta Assembly Constituency. The petitioner also happened to be a candidate in the said election and he was defeated and was in the 3rd position. The petition has been filed under Sections 80, 80(A) and 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the 'R. P. Act') The petition has been filed praying for setting aside the election of the sole respondent in the aforesaid election on the ground that the nomination papers of two of the candidates were accepted, though the same were fit to be rejected. It is stated in the petition that the Returning Officer for the aforesaid election was the Sub-Divisional Officer of Gogari Sub-Division in the district of Khagaria and the election was held on the basis of a Notification issued by the Governor of Bihar for electing the members of the Legislative Assembly to constitute the 11th Assembly. According to the schedule of the Programme in the Notification, the dates were as follows:-i) The last date for filing of Nomination paper - 23rd of January, 1995.ii) The date of Scrutiny of the Nomination paper - 24th of January, 1995.iii) The last date for withdrawal of candidature - 27th of January, 1995.iv) Date of polling - 21st of March, 1995.v) Date of counting of Ballot papers - 29th March, 1995 to 1st April, 1995.vi) Date of declaration of final result.The 1st of April, 1995.There were altogether thirty nominations accepted by the Returning Officer after due scrutiny. However, on the date of scrutiny, i.e., 24th of January, 1995, the nomination papers of Balram Mandal were accepted by the R. O. ignoring the fact that said Balram Mandal on that date was disqualified for being a candidate, he being a government servant. According to the petitioner he was a panchayat Sewak under the Government of Bihar and, therefore, his nomination was fit to be accepted, as per the provisions of Article 191 of the Constitution. It is further stated that one Parmanand Choudhary had filed nomination as a nominee and the said Sri Parmanand Choudhary happens to be a voter of Chautham Assembly Constituency. According to Section 33(5) of the Act, where a candidate is an electorate of a different constituency, a copy of the electoral role of that constituency or the relevant part thereof or a certified copy of the relevant extract of such roll has to be filed along with his nomination papers, but Sri Parmanand Choudhary filed the photo-stat copy of the electoral roll along with his nomination papers. Therefore, the above named candidate Sri Parma Nand Choudhary did not comply with the mandatory provisions of Section 33(5) of the R. P. Act. It is also further stated that in his nomination papers, Sri Parma Nand Choudhary mentioned the serial Number and part number of the electoral roll in support of the fact that he was a voter of Chautham Assembly Constituency. On the date of scrutiny, i.e., 24th of January, 1995, the R. O. did not find the name of Sri Parma Nand Choudhary in the part and serial number of the electoral roll which were mentioned in the nomination papers and as required under Section 36(6) of the Act, the R. O. passed an order on the nomination papers as Aswkrit, meaning thereby - Rejected. It has been stated that under Section 36(6) of the R. P. Act, the R. O. in his capacity as the R. O. performs quashi judicial function while scrutinising the nomination papers and, therefore, after passing the order either of rejection or of acceptance, he ceases to have any power to review the order, but the said R. O. penned through the word - 'Aswikrit' subsequently and accepted the nomination papers of Sri Parma Nand Choudhary in spite of objection on the part of other candidates. It is, therefore asserted that the subsequent acceptance of the nomination papers of Sri Parma Nand Choudhary was improper and illegal. It is further stated that in the election, Sri Parmanand Choudhary received 22,839 votes and the sole respondent received 35,726 votes. It is stated that because of improper acceptance of nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal, the election of the petitioner has been materially affected and, therefore, the election is void, illegal and fit to be quashed. It is further stated that the petitioner filed requisition for obtaining the certified copies of the nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal but the R. O. refused to accept the same and, accordingly, the prayer has been made to set aside the election of the sole respondent who has been illegally declared elected from 181 Parbatta Assembly Constituency in the 11th Assembly of the Bihar State.

(2.) In pursuance of the notice issued to him, the respondent appeared and filed a written statement. In his written statement, inter alia, the respondent pleaded that the election petition was not maintainable, as it suffered from serious defects on account of non-compliance of the provisions of law, especially the provisions of Sections 81, 82, 83 and 117 of the R. P. Act. It was also, further stated that the petitioner failed to state the necessary material facts, in support of the allegation made out in the election petition. Therefore, the petition is fit to be dismissed. Several technical defects were pointed out on behalf of respondent in the written statement, so far as the election petition is concerned. The respondent also denied the allegation in the election petition parawise and stated that at the time when the nomination papers of Sri Balram Mandal were accepted during scrutiny, there was no objection by any body regarding its maintainability and no one pointed out that Sri Mandal was not qualified to contest the election and, therefore, it has been stated that the aforesaid statement has been fabricated as an afterthought, only with a view to get the election of the respondent set aside. It has also been stated that only allegations have been made which amounts to bald assertions and the necessary details of the material facts have not been provided by the election petitioner in the Election Petition. It has been stated that actually there has been no cause of action in this case and the petition is not fit to be maintained. It is also further stated that the nomination papers filed on behalf of Sri Rama Nand Choudhary were properly filed and the necessary copies of the electoral role of Chaudham Constituency in which said Sri Rama Nand Choudhary happens to be a voter, was filed with the nomination papers. It is also further stated that the nomination papers of Sri Parma Nand Choudhary were rightly accepted, after hearing and deciding the objections in this regard and, therefore, there was no illegality in it. It is stated that as is the usual practice and is permissible in law, four sets of nomination papers were filed on behalf of Sri Parma Nand Choudhary and it is not a fact that after rejecting the nomination papers, the R. O. had illegally accepted the nomination papers at a later stage. It is asserted that the nomination papers of Sri Parma Nand Choudhary were thoroughly scrutinised in the light of the objection made and the R. O. was satisfied about the correctness of the nomination papers and the same was duly accepted. In fact, Sri Parma Nand Choudhary was duly recorded as a voter in the electoral roll of Chautham Assembly Constituency and the relevant portion of the electoral roll was filed along with the nomination papers. However, there was some clerical errors in part of the electoral roll and by mistake the house number was mentioned as part of the electoral roll and, therefore, confusion had occurred which was subsequently explained properly before the R. O. and, therefore, the nomination papers were accepted. It has therefore, been stated that the respondent has properly and duly been elected. So far as the possibility of the petitioner getting larger number of votes in absence of candidatures of Sri Parma Nand Choudhary and Sri Balram Mandal is concerned, it has been stated on behalf of the respondents that the respondent happened to be a popular leader in the State and, especially in his constituency, and even in absence of candidature of Sri Parma Nand Choudhary who was a Congress Candidates votes polled in his favour could not have gone in favour of the petitioner and certainly the same would have gone in favour of the respondent who had wide support from all Sections of the Society in his constituency. It is stated that as both, the Congress (I) and the Janta Dal had image of secular party, votes polled in favour of Congress (I) candidate, would never have gone to B. J. P. candidate. In this view of the matter, it has been stated on behalf of respondents that the allegations in the election petition are vague and absurd and the same are fit to be rejected and the petition is fit to be dismissed with cost.

(3.) After the parties filed their pleadings, counsel for the parties were heard and on 29th March, 1996, three issues were settled by the Court for determination. The issues are as follows :i) Whether the Returning Officer of 181 Parbatta Assembly Constituency had improperly accepted the nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal?ii) Whether the improper acceptance of nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal has materially affected the election result?iii) Whether the election of sole respondent Sri Vidya Sagar Nishad is liable to be set aside?It appears that at a later stage, it was submitted on behalf of respondent that some further issues were required to be settled and, accordingly, two issues were settled by order dated 13th August, 1996. These issues are as under :i) Is the Election Petition maintainable?ii) Is the election petition liable to be rejected due to non-compliance of the provisions of Sections 81 and 82 of the R. P. Act?Counsel for the respondents thereafter prayed for hearing on a petition filed under Order 7, Rule 11 and Order 6, Rule 16 of the Code of Civil Procedure read with Sections 86 and 87 of the R. P. Act. The court, accordingly, heard the counsel for the parties and passed order on 16th of December, 1997 by which the Court decided the two issues subsequently framed regarding the maintainability of the petition and it was held that there was no question of the petition being fit to be dismissed and the election petition was maintainable. Therefore, only three issues remained to be decided.