KAN SINGH GEHLOT Vs. ASHOK GEHLOT

JUDGEMENT

(1.) THE petitioner, by this election petition under Section 81 read with Sections 100 and 101 of the Representation of People Act, 1951 (hereinafter referred to as "the Act of 1951"), has challenged the election of respondent No. 1 who was declared elected by the Returning Officer as a Member of the Legislative Assembly from Sardarpura Constituency of City of Jodhpur, Rajasthan, on 4. 12. 2003.

(2.) BRIEF facts of the case as stated in the petitioner are that, the petitioner on an assurance given by the President of Indian National Lok Dal submitted his nomination paper before the Returning Officer, certified copy of which is placed on record as Annexure-1. The nomination of the petitioner was rejected by the Returning Officer vide order dated 15. 11. 2003 on the two grounds; firstly, out of ten proposers, names of six proposers are not available in the part number of the voter list and at the roll numbers which were disclosed by the proposers and the petitioner in petitioner's nomination paper (Annexure-1 ). and second, on the ground that the petitioner could not submit authorisation from the political party concerned, in the forms A and B as required under sub-clause (b) and (d) of Rule 13 of the Election Symbols (Reservation and Allotment) Order, 1968.

(3.) THE reply has been filed by the petitioner to the application of respondent No. 1. THE petitioner submitted that the petitioner pleaded all the material facts which are necessary to prove a case to succeed in the petition and, therefore, there is a complete discloser of cause of action. THE petitioner in reply to the application, again reiterated that duty of the Returning Officer is quash-judicial in nature as held by the Hon'ble Apex court and the Returning Officer was under obligation to hold a summary enquiry to determine the validity of the nomination paper filed by the petitioner after giving opportunity of hearing and time under Section 36 (5) of Act of 1951. THE petitioner submitted that entry at Sec. No. 3 in the nomination paper of the petitioner is of Kamlesh and not of Kalesh or Kailash. THE petitioner for this, relied upon the typed copy of the nomination paper. THE petitioner again reiterated that in view of Annexure-4 to 9, it is clear that six proposers' names were very much available in the electoral roll of the Sardarpura Constituency. THE petitioner, to meet the objection about the verification, submitted that Annexure 2, 3 and 10 have been verified and want of verification or defect in verification of the documents annexed to the petitioner, cannot be a ground for dismissal or the petition since the same is matter of procedure and is curable defect only, as held by the Supreme Court and also by the Rajasthan High Court and further submitted that the affidavit filed by the petitioner is verified in accordance with the law and, if there is defect, it is also curable. THE petitioner submitted that he has impleaded all the necessary parties in the election petition and the rights of contesting candidates are involved and the Returning Officer has rejected the nomination paper, therefore, the petitioner impleaded all of them in the election petition and even if it is found that they are unnecessary parties, the election petition cannot be dismissed in view of the decision of the Hon'ble Apex Court.