GOPAL KRISHNA VERMA, SON OF LATE SAHDEO PRASAD VERMA ALIAS LATE SAHDEO VERMA Vs. RAJIV RANJAN SINGH ALIAS LALAN SINGH SON OF SRI JWALA PRASAD SINGH

JUDGEMENT

(1.) This election petition under Sections 80, 80A and 81 of the Representation of the People Act(hereinafter referred to as the Act) has been filed challenging the election of sole respondent from 28-Munger Parliamentary Constituency held on 30.04.2009 on the ground that both the nomination paper of the election petitioner bearing Nos.56, 57 for contesting the said election was improperly rejected by the Returning Officer under order dated 11.04.2009 on the ground that the name of his 10 th proposer, namely, Sri Shailesh Kumar is not available in the electoral roll of part no.19, serial no.1175 of 165-Munger(General) Assembly Constituency as has been stated in the Nomination Form, as there are only 921 electors named in the said part of the electoral roll of 165-Munger(General) Assembly Constituency. Before rejecting the nomination paper neither such error was pointed out to the petitioner by the Assistant Returning Officer who received the nomination paper nor the Returning Officer granted the petitioner sufficient indulgence to remove the defect and thereby infracted Sub-Section-(4) of Section 33 and Sub-Section-(5) of Section 36 of the Act. Nomination paper of the election petitioner being improperly rejected, the election of the sole respondent returned candidate from the said constituency is fit to be declared as void.

(2.) In support of the aforesaid plea election petitioner averred in the election petition that he filed his two sets of nomination paper for the aforesaid election on 9.4.2009 at 2.48 P.M., which was received by the Assistant Returning Officer, who handed over the nomination papers to the Assistants and other officers present to assist the Assistant Returning Officer in receiving the nomination papers. The Assistants and officers present to assist the Assistant Returning Officer cross-checked the contents of nomination paper including the entries made therein and the required documents filed with the nomination paper. After being satisfied that there was no defect in nomination paper petitioner was granted two receipts and check list dated 9.4.2009, Annexures-1, 1/1 & 2 annexed with the election petition asking him to appear for scrutiny on 11.4.2009 at 11 A.M. In paragraph-13 of the election petition categorical assertion has been made by the election petitioner that at the time his nomination paper was received by the Assistant Returning Officer on 9.4.2009 at 2.48 P.M. and verified by the Assistants present to assist him, whereafter receipts and check slip dated 9.4.2009 was issued to the petitioner no defect about the part, serial number of his 10 th proposer was pointed out by the Assistant Returning Officer, which was disclosed for the first time by the Returning Officer when he took up the nomination paper of the petitioner for security. In paragraph-15 statement has been made that petitioner was shocked and surprised to learn about the defect in his nomination paper from the Returning Officer and immediately informed the Returning Officer that at the time of presentation/receipt of his nomination paper by the Assistant Returning Officer part, serial number of his proposers were verified by the Assistants present to assist the Assistant Returning Officer in receiving the nomination paper but neither the Assistants nor the Assistant Returning Officer ever pointed out any defect about the part, serial number of any of his proposers in the nomination paper. Further statement made by the petitioner in the said paragraph is that having learnt about the defect, he requested the Returning Officer to furnish the electoral roll of part nos.17, 18 and 19 of 165-Munger(General) Assembly Constituency so as to enable him to correct the mistake but the Returning Officer gave the petitioner electoral rolls of part nos.17 and 19 only. In paragraphs-16, 17 of the election petition statement has been made that having gone through the electoral roll of part nos.17 and 19 of 165-Munger(General) Assembly Constituency petitioner could not locate the name of his 10 th proposer Sri Shailesh Kumar at serial no.1175 of part nos.17 and 19, whereafter petitioner requested the Returning Officer time and again to furnish the voter list of part no.18 of 165-Munger(General) Assembly Constituency but the Returning Officer refused to furnish the same, whereafter petitioner requested the Returning Officer to grant him time till the next day so as to enable him to remove the defect about his 10 th propopser but the Returning Officer granted him 15 minutes to remove the defect in the nomination paper. In paragraph-18 of the election petition petitioner has stated that for removing the defect in the nomination paper within 15 minutes the time granted by the Returning officer he rushed to the office of the District Election Officer, Munger, to find out the correct serial number of his 10 th proposer in the voter list. In paragraphs 19, 20, 21 of the election petition election petitioner has stated that no sooner voter list of part no.18 of 165-Munger(General) Assembly Constituency was made available by the office of the District Election Officer he found out the name of his 10 th proposer at the same serial i.e. 1175, after finding out the correct part number of his 10 th proposer, petitioner rushed back to the office of the Returning Officer within half an hour while the process of scrutiny of the nomination paper of other candidates was still in progress. No sooner the scrutiny of nomination paper of the particular candidate which was in progress at the time petitioner re-entered the office of the Returning Officer was over he intervened and informed the Returning Officer that the name of his 10 th proposer Sri Shailesh Kumar is found at the same serial number as mentioned in the nomination paper but in part no.18 of the electoral roll which has inadvertently been stated in the nomination paper as part no.19. The Returning Officer did not listen to the request of the petitioner and proceeded with the scrutiny of nomination paper of other candidates. Petitioner made repeated request before the Returning Officer to permit him to correct the part number of his 10 th proposer in the nomination paper to avoid rejection of nomination paper on technical ground but the returning Officer neither himself corrected the part number of the 10 th propposer nor allowed the petitioner to correct the same. In paragraph-22 of the election petition it has been stated that when petitioner put pressure on the Returning Officer to allow him to correct the part number of his 10 th proposer the Returning Officer asked the petitioner to try his luck again in the next election and further stated that neither he would correct the part number of his 10 th proposer in the nomination paper nor would he allow the petitioner to correct the same. Highlighting the aforesaid partisan attitude of the Returning Officer election petitioner submitted petition dated 11, 12, 13.4.2009 with enclosures before the Returning Officer, copy whereof was also sent to the Chief Electoral Officer, Bihar and the Chief Election Commissioner of India, New Delhi through fax, Annexures-3, 7. In paragraph-46 of the election petition petitioner has stated that he applied for supply of certified copy of some documents, namely, the attendance register of candidates who appeared for scrutiny maintained by the Returning Officer, certified copy of nomination paper of all the contesting candidates with the documents filed by them, copy of his application dated 11, 12, 13.4.2009 filed before the Returning Officer through fax praying therein to accept his nomination paper and duplicate of compact video disc of the process of scrutiny of nomination paper etc. through fax vide application dated 16.4.2009 addressed to the Returning Officer stating therein that the copying section in the collectorate is closed with further request to guide him the way for obtaining certified copy of the aforesaid documents.

(3.) By filing written statement sole respondent pleaded that the election petition is fit to be dismissed for non-compliance of the mandatory provisions of Sections 81, 82 and 117 of the Act under Sub-Section-(1) of Section 86 of the Act for the failure of the election petitioner to serve on the sole respondent true copy of the election petition filed in this Court as there are various discrepancy in the petition filed in this Court and the copy which has been served on the sole respondent. In paragraphs-4, 5 of the W.S. sole respondent has stated that election petitioner failed to make adequate statement of material facts as also to furnish any contemporaneous document to support his false allegation and in such circumstances election petition is fit to be dismissed summarily under order 7 Rule 11 of the Code of Civil Procedure. In paragraph-10 of the W.S. sole respondent has stated that part, serial number of the 10 th proposer of the election petitioner as mentioned in nomination paper did not find place in the concerned voter list of 165-Munger(General) Assembly Constituency. In paragraph-11 of the W.S. statement has been made that the Returning Officer after examining the two sets of nomination paper of the election petitioner read with concerned voter list pointed out to the petitioner that part, serial number of his 10 th proposer is not correct and does not tally with the concerned voter list. In paragraphs-12, 13 sole respondent dealt with paragraphs, 8, 9 of the election petition and stated that the said statement is incorrect as in fact the Returning Officer/Assistant Returning Officer pointed out that part, serial number of 10 th proposer of the petitioner did not tally with part, serial number of the concerned voter list. In paragraph-15 sole respondent disputed the averments made in paragraphs 11 and 12 of the election petition as totally incorrect as according to the sole respondent the Returning Officer provided opportunity to all the candidates to examine the nomination paper of the other candidates. In paragraphs- 16, 19, 21, 22 of the written statement the sole respondent disputed the contents of paragraphs-13, 16, 18 and 19 of the election petition as totally incorrect and false as according to the sole respondent Returning Officer/Assistant Returning Officer did inform the petitioner that part, serial number of his 10 th proposer is not matching with part, serial number of the 10 th proposer as stated in the concerned voter list and story to the contrary, of the petitioner is totally concocted and is only for the purposes of election petition. In paragraph-20 of the W.S. sole respondent denied the contents of paragraph-17 of the election petition and submitted that petitioner never filed any petition before the Returning Officer for grant of one day time by postponing the scrutiny of his nomination paper. In paragraph-23, 24 the sole respondent disputed the contents of paragraphs-20, 21 of the election petition and submitted that petitioner never came back before the Returning Officer during the scrutiny of the nomination paper and statement to the contrary made in the election petition is incorrect and false. In paragraph-25 of the W.S. sole respondent has denied the statement made in paragraph-22 of the election petition as belated statement which is incorrect, false and concocted only for the purposes of election petition. In paragraphs-26, 31 of the W.S. the sole respondent has dealt with paragraph-23 of the election petition and stated that statement under reply is unwarranted, contrary to law as according to the sole respondent Returning Officer does not have any jurisdiction to review the order rejecting/accepting the nomination paper as he becomes functus officio after accepting/rejecting the nomination paper. In paragraphs-27, 28, 29 of the W.S. sole respondent has dealt with paragraphs-24, 25, 26 of the election petition read with Annexure-3 and stated that statement under reply are out and out, afterthought, besides being false. It has further been stated therein that petitioner is not fair in casting aspersion against the Returning Officer which appears to be motivated. In paragraph-30 of the written statement sole respondent has dealt with paragraph-27 of the election petition with Annexures-5, 5/1 and stated that the statement made therein are not to be relied in these proceedings as the same has been made on the basis of self created document on 11.4.2009 at 6.21 P.M. after rejection of the nomination paper of the election petitioner as also after the process of scrutiny was over. In paragraph-32 of the W.S. sole respondent has disputed the statement made in paragraph-29 of the election petition and has submitted that order rejecting the nomination paper is final, subject to the order passed by the High Court during the trial of the election petition. In paragraph-33 of the W.S. sole respondent has dealt with the averments made in paragraph-30 of the election petition and has stated that the same is incorrect and false and has been averred only for the purpose of filing the election petition because the Returning Officer had given ample opportunity to the election petitioner to remove the defect in the nomination paper but the petitioner failed to furnish the correct part, serial number of his 10 th proposer. In paragraph-34 of the W.S. sole respondent has dealt with paragraph-31 with Annexures-7, 7/1 of the election petition and has stated that the averments made therein are unnecessary, uncalled for and contrary to law besides being afterthought. It is also stated in the said paragraph that perusal of contents of Annexure-7 indicates that petitioner even threatened the Returning Officer that he will file election petition challenging the election with prayer to declare the election of the returned candidate as void, although Returning Officer had given ample opportunity to the election petitioner on 11.4.2009 to remove the defect in his nomination paper. In paragraphs-35, 36 of the W.S. sole respondent dealt with paragraphs-32, 33 and Annexures-8, 8/1, 9 of the election petition and stated that contents of the said paragraphs and the Annexures does not deserve any consideration and are merely the preparation process by the petitioner to file the election petition, which deserves no consideration by this Court. In paragraph- 37 sole respondent has stated that contents of paragraph-34 of the election petition are merely repetition. In paragraphs-38, 40 sole respondent has dealt with paragraphs-35, 37 and Annexure-10 of the election petition and stated that contents of the said paragraphs and Annexure are nothing but falsehood and misleading. He has further stated in the said paragraph that at the time of presentation of nomination paper by the petitioner the Assistant Returning Officer examined his nomination paper and pointed out the defect in the nomination paper about part, serial number of his 10 th proposer. In paragraphs-39, 42, 51 the sole respondent dealt with paragraphs-36, 39, 48 and 49 and Annexures-11, 12 of the election petition and stated that the statements made therein are totally false and motivated as the election petitioner asked for half an hour time from the Returning Officer to remove the defect in his nomination paper. In paragraph-41 of the W.S. sole respondent has dealt with paragraph-38 of the election petition and stated that interpretation given by the election petitioner of Sub-Section-(5) of Section 36 in paragraph-33 is wholly misconceived as the election petitioner in reality had asked the Returning Officer to grant only half an hour time during scrutiny of the nomination paper so as to enable the election petitioner to remove the defect. In paragraph-43 of the W.S. sole respondent has stated that the contents of paragraph-40 of the election petition is not correct either in fact or law. In the said paragraph it has further been stated that petitioner has wrongly compared checking of nomination paper by the Assistant Returning Officer on its presentation with the scrutiny of nomination paper as the checking of the nomination paper is merely preliminary verification of the nomination paper. It has further been stated in the said paragraph that after verifying nomination paper of the election petitioner with the concerned voter list the Assistant Returning Officer pointed out defect regarding part, serial number of 10 th proposer of the petitioner. In paragraph-44 of the W.S. sole respondent dealt with paragraph-41 of the election petition and stated that bare reading of the said paragraph indicates the false prejudice of the election petitioner against the Returning Officer which has nothing to do with the merit of the rejection of his nomination paper. In paragraph-45 of the W.S. sole respondent dealt with paragraph-42 of the election petition and stated that after rejection of the nomination paper only remedy available to the election petitioner was filing of election petition in the light of the provisions of Article 329(b) of the Constitution of India within 45 days of declaration of final result of the election. In paragraphs-46, 47 sole respondent dealt with paragraphs-43, 44, 45 of the election petition and submitted that the contents of the said paragraphs are vague and imaginative. In paragraph 48 of the W.S. sole respondent stated that election petitioner has miserably failed to state primary essential statement of material fact by not annexing the copy of his nomination paper, which suffered from the vice of substantial defect. In such circumstances, according to the sole respondent election petition should have been dismissed summarily under order VII Rule 11 of the Code of Civil Procedure. In paragraph-50 of the W.S. sole respondent stated that statement made in paragraph 46 and 47 of the election petition are nothing but repetition of the old story. In paragraph-52 of the W.S. sole respondent stated that as part, serial number of 10 th proposer of the election petitioner, namely, Sri Shailesh Kumar was not correctly stated in the nomination paper and the said defect made it difficult, rather impossible for Returning Officer to ascertain whether the aforesaid 10 th proposer of the petitioner was really a voter of the said parliamentary constituency. Aforesaid defect being vital and substantial nomination paper of the election petitioner was fit to be rejected by the Returning Officer under Section 36 of the Act.