Madhya Pradesh High Court
Ram Kishan Patel vs Devendra Singh on 28 September, 2022
Author: Vishal Dhagat
Bench: Vishal Dhagat
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ELECTION PETITION No.07 of 2019
Between:-
1. RAM KISHAN PATEL S/O SHRI BHAIYA
LAL PATEL, AGED ABOUT 69 YEARS,
R/O VILL. KOTPAR GANESH TEH.
BARELI DISTT. RAISEN M.P. (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI MRIGENDRA SINGH - SENIOR ADVOCATE
WITH SHRI RISHABH SINGH AND SHRI NARUNADITYA
SINGH - ADVOCATE)
AND
1. DEVENDRA SINGH S/O LATE SHRI
RAGHURAJ SINGH, AGED ABOUT 55
YEARS, R/O H.NO. 126 VILL. AND POST
GADARWAS TEH. BADI DIST. RAISEN M.P.
(MADHYA PRADESH)
2. RETURNING OFFICER RAISEN 140,
UDAIPURA, DIST. RAISEN (MADHYA
PRADESH)
....RESPONDENTS
(SHRI SANJAY KUMAR AGRAWAL - ADVOCATE)
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Reserved on : 14.09.2022 (FH)
Delivered on : 28.09.2022
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EP No.07 of 2019
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This petition has come up for hearing on this day, the Court
passed the following:
ORDER
Petitioner has filed this election petition challenging election of respondent No.1 namely Devendra Singh who is returned candidate from Constituency-140, Udaipura, District-Raisen (MP) on ground as contained under Sections 100(1)(d)(i) & (iv) of Representation of Public Act, 1951.
2. It is averred in election petition that last date of filing nomination form was on 09.11.2018. Scrutiny of nomination paper took place on 12.11.2018. Date of polling was fixed on 28.11.2018 and result was declared on 11.12.2018. Respondent No.1 was declared elected by margin of 8001 votes. On perusal of nomination form of respondent No.1 which was affixed on notice board in accordance with Section 33-A(3) of Act of 1951, petitioner learnt that affidavit annexed along with form was not signed by respondent No.1 and respondent No.1 was not identified in affidavit. Affidavit also did not contain signature of Notary on the seal affixed by him in all pages, therefore, there is non-compliance of mandatory provision and nomination form ought to have been rejected at threshold under Section 36(2) of Representation of People Act, 1951. Petitioner raised objections before Returning Officer on 12.11.2018. Respondent No.1 filed its reply to said objection. Returning officer rejected objection vide order dated 13.11.2018. Defect of non-verification of affidavit and non-identification of deponent in affidavit is defect of EP No.07 of 2019
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substantial character. Affidavit furnished was not in prescribed format i.e. form-26 and same was in violation of Section 33-A of Act, 1951 and Rules 4-A of the Conduct of Election Rules, 1961. Acceptance of defective affidavit by returning officer has affected election of petitioner materially. Affidavit filed was also in violation of Sections 8(1)(e) and 8(2) of Notaries Act, 1952. If affidavit of respondent No.1 was rejected then petitioner would have been elected among remaining 9 candidates. Petitioner examined himself as PW-1 and Dinesh Singh as PW-2. Petitioner exhibited document (Ex-P/1), Ex-P/1/A certified copy of Ex- P/1, Ex-P/2, Ex-P/3 and Ex-P/4.
3. Respondent No.1 filed its written statement and denied the pleadings in election petition. It was pleaded that affidavit filed along with nomination paper in form-26 was duly signed by respondent No.1. Affidavit was duly sworn before notary public and duly attested as required in law. Failure of notary public to put initial on seal at all pages of affidavit would not render affidavit nonest in eye of law. Defect is only of clerical omission and not substantial in character. First page of affidavit contained affirmation by notary public Smt. Reshu Jain. Returning Officer has disallowed the objection in accordance with instruction contained in handbook, 2018. As per said handbook, affidavit must contain signature of deponent on each page and should contain seal of notary oath Commissioner on each page. Person swearing affidavit was personally known to notary, therefore, no separate identification was required. Seal of identification was affixed by notary and name of respondent No.1 was mentioned by notary in his own hand. There is no EP No.07 of 2019
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defect in identification of respondent No.1. Defect pointed out is not of substantial character. Respondent No.1 made full and complete disclosure about his assets, liabilities, educational qualifications, past and present criminal case, if any. Complete and truthful disclosure is made by respondent No.1. Affidavit filed fulfills purpose and objective of Section 33-A of Act of 1951 and Rule 4-A of Conduct of Election Rules, 1961. It is pleaded that respondent as per instruction issued by Election Commission, can file fresh affidavit to remove defect. Respondent No.1 expressed inclination or intention to submit fresh affidavit in case any defect is found in affidavit. Answering respondent acted bonafidly and there was no mischief of improper verification and identification in affidavit. Defect made by notary public could not be attributed to respondent No.1. Voters of Constituency were completely informed in respect of information required in form-26 and they took decision to vote in favour of answering respondent. Affidavit was not left blank or unsigned by respondent No.1 and election result was not materially affected by defect in affidavit. Notary public had signed at the bottom of the affidavit and merely not signing verification clause will not make affidavit defective. Affidavit was filed in form-26 and to prove said pleading, respondent No.1 examined himself as DW-1 and Vishal Singh as DW-2 and exhibited document as Ex-D/1.
4. On basis of pleadings made in election petition following issues were framed:-
EP No.07 of 2019- 5 -
"1. Whether nomination form submitted by respondent no.1 is liable to be rejected under Section 36(2)(b) of the Representation of Peoples Act, 1951 due to non compliance of Rule 4-A of Conduct of Election Rules, 1961 ?
2. Whether non signing of affidavit to be filed along with nomination paper amounts to violation of Rights to Information under Section 33-A of the Representation of Peoples Act, 1951 ?
3. Whether non-compliance of Section 8(1)(e) and Section 8(2) of Notaries Act, 1952 makes affidavit a nullity?
4. Whether election of respondent no.1 is void as result of election is materially affected by improper acceptance of nomination paper?
4A. Whether alleged deficiencies in the affidavit filed by the returned candidate as pointed out by the petitioner are not of substantial nature and could not have been rejected by virtue of the provisions contained under Section 36(4) of the Representations of Peoples Act, 1951?
5. Whether election of respondent no.1 is void as result is materially affected by non compliance of EP No.07 of 2019
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Constitution and Acts and Rules made under the Representation of the Peoples Act, 1951?
6. Relief to which petitioner is entitled ?
7. Cost to be awarded if any?"
5. Petitioner examined himself as PW-1. He has stated that he contested election for Member of Legislative Assembly from Udaipura Constituency. He was given ticket from Bhartiya Janta Party and respondent No.1 Devendra Singh got ticket from Indian National Congress. Nomination form of Devendra Singh was displayed on notice board. On going through the nomination paper, it was found that same suffers from defects. After seeking legal advice objection was filed. Said objection was exhibited at Ex-P-v. Original of objection was marked as Ex-P/1, reply to said objection as Ex-P/2. Election Officer dismissed the objection by order dated 13.11.2018. PW-1 stated that affidavit at page no.19 was same affidavit which was displayed on notice board. Objection was raised that affidavit was not notarized and illegal. Seal of notary Smt. Reshu Jain is affixed on page nos.7 to 21 but notary did not put her signature on seal affixed on aforesaid pages. Witness could not recollect whether Devendra Singh/respondent No.1 has mentioned details of movable or immovable property and criminal cases. No objection was raised before returning officer that description of movable and immovable properties and of criminal cases was not given. Election Officer did not inform the PW-1 regarding dismissal of objection on EP No.07 of 2019
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ground that there was seal of notary on every page and respondent No.1 has signed on every page of nomination papers.
6. Petitioner examined Dinesh Singh as PW-2. Said witness stated that he was SDM, Bareli, District-Raisen (MP) and was Election Officer at relevant time. Nomination form dated 05.11.2018 was filed before him. He exhibited original nomination form as Ex-P/4 which has 48 pages. He has signed in Part-4 of nomination paper at 'A..........A'. Said nomination form has affidavit of Devendra Singh. Devendra Singh has identified himself in affidavit before notary. Affidavit was executed by deponent. Order dated 13.11.2018 was passed by him and exhibited as Ex-P/3. In cross-examination, it was stated by him that Election Commission sent handbook giving directions. In said handbook format of affidavit is given and requirement of affidavit was also mentioned. In said handbook, it has been mentioned that every page of affidavit must bear seal and name. He produced handbook before the Court. He relied on Clause-5.16.1 and document was taken on record. He submitted that affidavit in format-26 was displayed on notice board. He admitted that objection was filed by petitioner and respondent No.1 had filed its reply. After receiving objection, nomination paper and affidavit was scrutinized. Devendra Singh had signed on each page and there was notarial seal on each page. Devendra Singh had filed reply stating therein that he can file fresh affidavit as per election commission guidelines. There was no substantial defect in affidavit. If there was defect in affidavit then same can be cured within time limit prescribed. As there was no material defect, therefore, objection was dismissed.
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7. Learned counsel appearing for petitioner to establish his case relied on judgment reported in (2022) 1 SCC 115 {V. Prabhakara Vs. Basavraj K. (dead) by legal representatives and Another}. It is submitted that pleading is defined in Order 6 of the Code of Civil Procedure. Relief can only be based on pleadings alone. There is exception to said rule when parties know each other's case very well and pleading is implicit in an issue then Court can take judicial notice of a fact when it is apparent on face of record. Reliance is also place on paragraphs No.17 and 18 of judgment reported in (1999) 1 SCC 47 {Virendra Kashinath Ravat and Another Vs. Vinayak N. Joshi and Others} which is quoted as under:-
"17. The object of the Rule is two-fold. First is to afford the other said intimation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the court to determine what is really the issue between the parties. The words in the sub-rule "a statement in a concise form" are definitely suggestive that brevity should be adhered to while drafting pleadings. Of course brevity should not be at the cost of setting out necessary facts, but it does not mean niggling in the pleadings. If care is taken in the syntactic process, pleadings can be saved from tautology. Elaboration of facts in pleadings is not the ideal measure and that is why the sub-rule embodied the words "and contain only" just before the succeeding words "a statement in a concise form of the material facts".
18. This Court has indicated the position in Manphul Singh vs. Surinder Singh (AIR 1973 SC 2158). On a subsequent EP No.07 of 2019
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occasion this court has again reiterated the principle in M/s. Genesh trading Co. vs Moji Ram (AIR 1978 SC 484). Following observations made in the said decision are useful in this context:
"2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.""
8. Petitioner placed reliance on Baghele Narottam Gendalal Vs. State of Maharastra and others reported in {2016 SCC Online Bom 4464} and submitted that Sub-rule (4) of Rule 25 of the CPC does not restrict the power of Returning Officer to reject nomination paper. Failure to comply with mandatory requirement goes to root of the mater and therefore, it is defect of substantial character. In absence of signature, nomination paper is as good as nomination paper not being submitted at all.
9. Learned counsel appearing for the petitioner also placed reliance on judgment passed by Apex Court in case of Resurgence India Vs. Election Commission of India and Another reported in (2014) 14 SCC
189. It is submitted that Apex Court has held that voter has elementary EP No.07 of 2019
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right to know full particulars of candidate who will represent him in Parliament. Right of information t\o a voter flows from Article 19(1)(a) of the Constitution of India. In absence of information about candidate to be selected rights guaranteed to citizen under Article 19(1)(a) of the Constitution of India is violated. To safeguard such right Supreme Court in case of Union of India Vs. Association of Democratic Reforms reported in (2002) 5 SCC 294, had issued direction. Considering said directions, Section 33-A in Representation of Peoples Act, was enacted in 2002. Filing blank affidavit violates fundamental rights under Article 19(1)(a) and it renders affidavit of no value and importance. Petitioner has also relied on judgment reported in AIR 1966 SC 735 {Bhagwati Prasad Vs. ChandramMaul} and submitted that if fact is not specifically pleaded and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial then mere fact that plea was not expressly taken in the pleadings would not necessarily dis-entitle a party from relying upon it, if it is satisfactorily proved by evidence.
10. Respondent No.1 examined himself as DW-1. He stated that he had filed nomination paper from Constituency-Udaipura, Bareli in November, 2018 as candidate of Indian National Congress. He had filed his affidavit along with nomination paper on stamp of Rs.100/-. He had signed on part 'A..............A' on Ex-P/4 at page-16 and also signed on page-17 to 30. Affidavit has been notarized by Smt. Reshu Jain. Notary was known to respondent No.1 personally. There was no defect in affidavit. Ramkrishna Patel/petitioner raised objection before Returning Officer and Returning Officer dismissed objection after hearing him. Returning Officer gave EP No.07 of 2019
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him option to file fresh affidavit if defect is found in affidavit. As no defect was found by returning officer, respondent No.1 had not filed fresh affidavit. It is admitted by him in cross-examination that seal has been affixed on page-16 but same has not been signed by notary. It is submitted that in seal of identification name of respondent No.1 is mentioned but he had not signed over words signature mentioned in seal as he is not knowing procedural nicety of executing affidavit. Witness admits that his name is mentioned as identifier. It is further admitted that he had only signed at page-16 but has not been identified by any other person. No witness has signed affidavit. Clause-9(1) of Ex-P/4 at page-14 is left blank.
11. It has been stated that deponent is known to notary for last ten years. It was also stated that he went to the Office which is situated at Malviya Nagar, Bhopal and affidavit was prepared at Malviya Nagar. Witness denied suggestion that notary was not present in Office and seal was affixed by employee and not by notary. It is also denied that since notary was not present in office, therefore, signature of notary was not there on seal. Respondent No.1 examined Vishal Singh S/o Sahib Singh as DW-2. He is an Advocate by profession. Said witness is known to respondent No.1-Devendra Singh. Witness filed nomination form of 2018. He admitted that objection was raised by petitioner. He had signed vakalatnama (Ex-D/1) and his name is entered on Ex.D/1 on part 'B................B'. He had also filed reply to objection. DW-2 admitted that as per check list there was no defect in affidavit. Returning Officer found nomination form correct, therefore, there was no reason to file EP No.07 of 2019
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fresh affidavit. There is provision that if there is defect in affidavit then fresh affidavit can be filed. Said witness has denied suggestion that no instruction has been received from respondent No.1. It has been stated by him that notary has signed on first page of affidavit. It is also stated by him that if deponent is known to notary then he can identify him on affidavit but deponent cannot identify himself in affidavit. If notary identifies deponent then he will mention it in seal and sign the same and will put his signature over words identified by him. Notary has singed only on page-1 and rest of the pages had not been signed. It is admitted that he had not filled any column in Clause-9(1) but information has been given in Clause-9(2).
12. Learned counsel appearing for the respondent relied on judgment reported in (1989) 4 SCC 773 {Lata Devi (Mali) Vs. Haru Rajwar}. On strength of said judgment, it was submitted that mere assertions in election petition is not enough. There has to proof that result of election will be materially affected and in absence of same, it is not permissible to set aside election of a returned candidate merely on surmises and conjuncture. Reliance was also placed on paragraph Nos. 7 and 8 of judgment reported in (2002) 4 SCC 631 {Rajankumar Shankarrao Teware Vs. Ajit Anantrao Pawar} which are quoted as under:-
"7.While interpreting clause (d) of sub-section (1) of Section 100 of the Act, this Court has consistently held that in view of clear language of the provision even if the allegations in the election petition are found to be EP No.07 of 2019
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proved, the election petitioner should also establish that the result of the election was materially affected.
8. Drawing our attention to paragraph 30 of the impugned judgment, Mr. Lalit, learned counsel for the appellant has submitted that the High Court proceeded on a wrong legal proposition. In the said paragraph the learned Judge took the view that in order to succeed in the election petition, the appellants have at least to create a genuine doubt in the mind of the Court by establishing circumstances alleged in the election petition beyond all reasonable doubt. This approach was wrong in view of the settled position of law but we find from the impugned judgment that subsequently, the learned Judge after discussing various decisions of this Court recorded the finding that after going through the records it could not be said that even a genuine suspicion about alleged mal practice of substituting the valid votes with spurious votes could be established. We have also perused the impugned judgment and we find after discussing law and evidence on record, the election petition was dismissed holding that the appellants failed to make out a prima facie case and could not be allowed to embark upon a fishing inquiry."
13. Learned counsel appearing for respondent submitted in judgment reported in (2014) 5 SCC 312 {Arikala Narasa Reddy Vs. Venkata Ram EP No.07 of 2019
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Reddy Reddygari and Another} Apex Court held that Court cannot go beyond pleadings of the parties. Parties have to take proper pleadings and establish the facts by adducing evidence with particular irregularities and illegalities result of election has been materially affected. Further reliance was placed on judgment reported in 1985 (supp) SCC 111 {Umed Singh Rao Vs. Mani Ram Godara and others} wherein Apex Court held that there is a presumption that official acts have been regularly performed and the burden was on the person who pleaded to the contrary and sought a conclusion to be reached.
14. Learned counsel appearing for respondent placing reliance on judgment reported in (2009)10 SCC 541 {Ram Sukh Vs. Dinesh Aggarawal} submitted that success of a candidate who has won at an election can not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Counsel for respondent also placed reliance on paragraphs No.17 to 20 of judgment reported in (2012) SCC Online Kerala 20029 {Prahladan Vs. Varkala Kahar}. Said paragraphs are reproduced as under:-
"17. Another material aspect to be taken note of is the relevancy and significance of the check list prepared at the time of the submission of the nomination papers. Duplicate of the check list forms part of the nomination paper and original thereof is given to the candidate/petitioner who submits the nomination paper. The issuance of the check list to a candidate filing a nomination paper has been introduced by a notification EP No.07 of 2019
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issued by the Election Commission. The nomination papers, both of them, filed by the candidate/proposer contain the check list prepared by the Assistant Returning Officer. That check list demands primary satisfaction of the Returning Officer over the documents required to be produced with the nomination paper. If any of the documents has not been filed, it requires the Returning Officer to clearly state in the bottom of the check list fixing the time limit by which such documents can be submitted. Such check list is required to be signed both by the Returning Officer receiving the nomination paper and also the candidate/proposer as to receiving it. Notification issued by the Election Commission dated 10th February, 2009 in that regard states that the check list serves dual purpose acknowledging the receipt of the document as well as notice as directed in the Hand Book. If a document is filed subsequent to the filing of the nomination an acknowledgment to that effect is issued to the candidate mentioning the date and time and that is also to be indicated appropriately in the check list.
18. Going through the check list forming part of the nomination paper filed by the petitioner, it is seen that no defect was noticed by the Returning officer who received the nomination; and, production of every document including the affidavit in Form No.26 has been duly acknowledged without noticing any defect at EP No.07 of 2019
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all, leave alone, directing any rectification of defect in such document.
19. The question whether the rejection of the nomination paper of the petitioner for the reason that Form No.26 affidavit produced with the nomination paper sworn to before a Notary was not stamped for notarization was proper or improper has to be adjudged and examined with reference to the provisions covered by Sections 33(1) and 36(1) of the Act, Rules 4 and 4-A of the Conduct of Election Rules, Form 2B and paragraph 10.1 (viii) of the guidelines issued to the Returning Officers in the Hand Book. In the context, it is also to be pointed out that the Returning officer examined as PW2, when his attention was drawn to the guidelines given in the Hand Book, particularly, paragraph 10.1(viii) that a defect in the affidavit should not be a ground for rejection of the nomination conceding that guideline asserted that subsequently contra instructions have been given by the Election Commission. That assertion made by him that instructions conflicting with that covered by paragraph 10.1(viii) of the Hand Book is nothing but an explanation canvassed of, which has no merit, to justify the rejection of the nomination papers for not following the guidelines given in paragraph 10.1 (viii) of the Hand Book.EP No.07 of 2019
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20. As already indicated Form No.26 affidavit was sworn to before a Notary Public, but, stamp for notarization however happened to be affixed in a different affidavit produced with the nomination paper. When that be so, it was clearly a case that non-affixing the stamp for notarization in Form No.26 affidavit was only a mistake, and such mistake was not a defect of substantial character. Rejection of the nomination papers of the petitioner on the ground that it was not duly attested by the Notary for the reason of non- affixing of stamp for notarization in Form No.26 affidavit was improper. When Form No.26 affidavit was filed with the nomination paper duly signed by a Notary even if stamp for notarization has not been affixed in such affidavit, but only in the other affidavit produced, still, it is a case where an opportunity for affixing of the required stamp for notarization of the affidavit should have been extended to the petitioner having regard to the instructions given under the guidelines in paragraph 10.1(viii) of the Hand Book issued to the Returning Officers. The Returning officer has rejected the nomination paper of the petitioner on a ground which is not sustainable under law. Having regard to the provisions of the Act, Rules and guidelines under the Hand Book it has to be concluded that the nomination papers of the petitioner have been improperly rejected."EP No.07 of 2019
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In view of aforesaid submission, counsel for respondent prays for dismissal of election petitioner.
15. Heard the counsel for the petitioner as well as respondent.
16. First issue before this Court is "whether nomination form submitted by respondent No.1 is liable to be rejected under Section 36(2)
(b) of Representation of Peoples Act, 1951 and also due to non- compliance of Rule 4-A of Conduct of Election rules, 1961?"
Section 36(2)(b) of Representation of Peoples Act, 1951 is quoted as under:-
36. Scrutiny of nomination -
(1) *** (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds
(a) ***
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34;
Sections 33 (1) and 33 (4) of Representation of Peoples Act, 1951 are quoted as under:-
EP No.07 of 2019 - 19 -
33. Presentation of nomination paper and
requirements for a valid nomination -
(1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
(2) *** (3) *** (4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
Rule 4-A of Conduct of Election Rules, 1961 is quoted as under:-
"4-A. Form of affidavit to be filed at the time of delivering nomination paper- The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the EP No.07 of 2019
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candidate before a Magistrate of the first class or a Notary in form-26."
17. From perusal of aforesaid provisions of law, it is clear that Section 36(2)(b) gives power to returning officer to examine nomination paper and to decide objections and can reject nomination paper, if there has been failure to comply with provision of Section 33 of the Act of 1951. Section 33 prescribed presentation of nomination paper and requirements of valid nomination. On presentation of nomination paper, returning officer satisfies himself regarding name of candidate and his electoral number and also that of proposer. If there is any error in description which may be clerical, technical, printing or any other error in name, place etc. same will not affect full operation of nomination paper and returning officer shall permit errors to be corrected and can also direct for overlooking said defect. For aforesaid defects, nomination paper cannot be rejected. Returning officer can reject when there is failure to comply with provision of Section 33 and not otherwise.
18. Devendra Singh (DW-1) in its deposition has stated that as per election manual, 2018, defect in affidavit can be removed within the time prescribed. Returning officer has not pointed any defect, therefore, there was no requirement to file fresh affidavit. Handbook, 2018 lays down following guidelines:-
5-11 ukekadu i=ksa dh izkjafHkd tkap 5-11-1 tSls gh izR;sd ukekadu i= nkf[ky fd;k tkrk gS fjVfuaZx vkWfQlj ;k fofufnZ"V lgk;d fjVfuZax vkWfQlj }kjk ;FkkfLFkfr vf/kfu;e 1951 dh /kkjk 33¼4½ ds v/khu ;Fkkisf{kr rduhdh EP No.07 of 2019
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n`f"Vkds.k ls mlh le; mldh tkap fd;k tkuk fof/k }kjk visf{kr gSA fdUrq fjVfuZax vkWfQlj ls bl Lrj ij fdUgha ukekadu i=ksa dh dksbZ vkSipkfjd laoh{kk djuk visf{kr ugha gSA ;g izkjafHkd tkap ukekadu i=¼=ksa½ esa fn, x, vuqlkj rFkk fuokZpu ukeofy;ksa esa ;Fkk izfo"V vH;FkhZ ,oa izLrkod¼dksa½ ds uke ,oa fuokZpu] ukeofy;ksa ls lacaf/kr izfof"V;ksa rd lhefr gSA bl pj.k esa fuEufyf[kr igyqvksa dh tkap dh tkuh pkfg,A 5-11-1¼v½ ;g tkap dj ysa fd D;k 'kiFk i= ds lHkh LraHkksa dks Hkjk x;k gS] D;ksafd viw.kZ 'kiFk i= vLohdkj fd, tkus dh laHkkouk gS ftlls ukekadu i= dks vLohdkj dj fn;k tk,xkA ;fn fdlh vH;FkhZ }kjk dksbZ LraHk [kkyh NksM+k tkrk gS rks fjVfuZax vkWfQlj@;k fofufnZ"V lgk;d fjVfuZax vkWfQlj tkap lwph esa uksV djsxk tSlk fd ekuuh; mPpre U;k;ky; ds vkns'k ds ifjikyu esa vkSj Hkkjr fuokZpu vk;ksx ds funsZ'k Uka- 576/3/ECI/LET/FUNC/JUD/SDR/2013 fnukad 12-01-2017 rFkk mls vH;FkhZ dks lkSaidj mlls leqfpr jlhn ysxkA ,sls ekeyksa esa mEEkhnokj dks tkap 'kq: gksus ds fy, fu/kkZfjr le; rd ,d u;k ,fQMsfoV tks lc rjg ls iw.kZ gS] dks Qkby djus dk volj feysxkA 5-16 vH;kfFkZ;ksa }kjk izLrqr fd;k tkus okyk 'kiFk i= 5-16-3 ;fn dksbZ vH;FkhZ vius ukekadu i= ds lkFk mDr 'kiFk i= nkf[ky ugha dj ikrk gS] ;fn blesa dksbZ =qfV gks rks fjVfuZax vkWfQlj bl vis{kk dks mlds /;ku esa ykuk pkfg,A vH;kfFkZ;ksa ;k izLrkodksa dks lkSaih xbZ tkap lwph ds ek/;e ls vH;FkhZ dks ukekadu nkf[ky djus dh vafre rkjh[k dks vf/kdre 3 cts vijkUg rd lE;d :i ls 'kiFk fy, x, 'kiFk i= dks nkf[ky djus ds fy, dgk tkuk pkfg,A EP No.07 of 2019
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5-16-5 'kiFk i= ds fdlh Hkh LraHk dks [kkyh ugha NksM+k tkuk pkfg, ;k dsoy fu'kku@MS'k fpUg }kjk Hkjk ugha tkuk pkfg,A pwafd Qksu uacj] bZ&esy vkbZ- Mh- lks'ky ehfM;k vdkmUVl ls lacaf/kr tkudkjh QkeZ 26 esa lfEefyr dh xbZ gS] vr% bl laca/k esa lwpuk izLrqr djuk vko';d gSA 5-16-5 ekuuh; mPpre U;k;ky; us dgk gS fd vius ukekadu i= ds lkFk vH;kfFkZ;ksa }kjk nkf[ky 'kiFk i=ksa esa vH;kfFkZ;ksa ls mlesa lHkh LraHkksa dks Hkjk tkuk visf{kr gSA rFkk fdlh Hkh LraHk dks [kkyh ugha NksM+k tk ldrk gSA blfy, 'kiFk Ik= nkf[ky djus ds le; vkWfQlj dks ;g tkap djuh gksrh gS fd D;k ukekadu i= ds lkFk nkf[ky 'kiFk i= ds lHkh LraHk Hkjs x, gSa ;fn ugha rks fjVfuZax vkWfQlj vH;kfFkZ;ksa dks [kkyh LraHkksa esa lwpuk izLrqr ds fy, vuqLekjd nsxkA ekuuh; U;k;ky; us dgk gS fd ;fn fdlh en ds fy, izLrqr fd, tkus gsrq dksbZ lwpuk ugha gS rks ,sls LraHk esa mi;qDr vfHk;qfDr;ksa **'kwU; ;k ykxw ugha** ;k *Kkr ugha* dks ;Fkkiz;ksT; n'kkZ;k tk,xkA mudks fdlh LraHk dks [kkyh ugha NksM+uk pkfg,A ;fn vuqLekjd ds ckn Hkh vH;FkhZ [kkyh LFkkuksa dks ugha Hkj ikrk gS rks ukekadu i=ksa dh leh{kk ds le; ;g ukekadu i= fjVfuZax vkWfQlj }kjk vLohdkj fd, tkus ds fy, nk;h gksxkA**
19. Returning officer has no power to examine the contents of affidavit given by a candidate. He has to examine name, electoral number and to see affidavit is properly signed and no place is left blank and if there is some formal defect then opportunity is to be given to a candidate to correct the same. In present case, objection was filed and returning officer after hearing the parties has dismissed the objection. Non-signing by notary or by a candidate in some place or defect of identification are to be taken care of during scrutiny of returning officer and said defects are EP No.07 of 2019
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required to be pointed out to a candidate so that defect can be removed but no such defect was pointed out to respondent No.1. Objection was rejected, therefore, there was no occasion for respondent No.1 to correct the defect or to file fresh affidavit. Respondent No.1 has deposed that he had shown his willingness to file fresh affidavit if there is any defect. In these circumstances merely because defect of non-signing which was overlooked by returning officer and no opportunity was given to returning candidate to correct the same. Election of a democratically elected candidate cannot be declared void nor it can be said that there was improper acceptance of nomination paper.
20. Next question to be considered is "whether there is non- compliance of Rule 4-A of Conduct of Election Rules, 1961 for which nomination paper ought to have been rejected. On going through format-26 under Rule 4-A, which is part of Ex-P/1/A, it is found that column-9 (1) of part-B was left blank. Column-9(1) is regarding dues to Government. During cross-examination of DW-1, question was put to him whether he had left column-9 (1) blank. Objection was raised that said question could not be asked from witness as there is no pleading regarding it. Objection was reserved to be decided at the time of passing of judgment.
21. On going through the pleadings in election petition, it is found that there is no pleading that column-9(1) has been left blank. If there is no pleading then party is not permitted to give evidence to prove the same. In view of same, objection is sustained and therefore, question EP No.07 of 2019
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and its answer i.e. **izn'kZ Ikh0&4 -------------- okfdQ ugha gwaA** is not to be read in evidence in election petition. It is established law that proof and pleading in election petition is to be construed strictly.
22. Petitioner has relied in case of (2022) 1 SCC 115 {V. Prabhakara Vs. Basavraj K. (dead) by legal representatives and Another}; (1999) 1 SCC 47 {Virendra Kashinath Ravat and Another Vs. Vinayak N. Joshi and Others}; AIR 1973 SC 2158; 1978 SC 484 and stated that when both parties were aware of the issue and they have adduced evidence then issue raised can be considered by Court and decided in accordance with law. Said issue cannot be defeated only on ground that there is no pleading on facts regarding it. There is no quarrel to the proposition made by Apex Court in aforesaid cases. It is to be seen by Court that respondent is not prejudiced. Since, there is no pleading regarding leaving column- 9(1) blank, therefore, respondents does not have any chance to explain it in its written statement. Respondent No.1 will be taken by surprise if said question is permitted. In view of same, in absence of pleading, petitioner is not permitted to question respondent No.1 regarding leaving column- 9(1) blank. In view of aforesaid discussion, there is no non-compliance of Rule 4-A of Conduct of Election Rules, 1961. Resultantly, issue No.1 is answered in negative. Nomination paper of respondent No.1 is not liable to be rejected because of defect under Section 36(2)(b) of the Representation of Peoples Act, 1951 and Rule 4-A of Conduct of Election Rules, 1961.
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23. Issue No.2 is regarding non-signing of affidavit filed along with nomination paper amounts to violation of right to information under Section 33-A of Representation of Peoples Act, 1951 and same is quoted as under:-
"Section 33-A Right to Information- (1)A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether-
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-
section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
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(3) The returning officer shall, as soon as may be after the furnishing of information to him under sub- section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub- section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered."
24. Section 33-A lays down that candidate shall furnish affidavit along with his nomination paper furnishing information of his criminal antecedent which includes pending and decided cases and also information regarding his conviction and sentence. Section 33-A does not lay down for providing any other information. Information which has been left blank is in respect of Government dues has not been provided in Section 33-A of the Act of 1951.
25. Learned counsel appearing for petitioner has relied on judgment passed in case of Union of India Vs. Association of Democratic Reforms reported in (2002) 5 SCC 294 and submitted that it is mandatory on part of candidate to furnish affidavit in prescribed format-26 stating his assets and liabilities. There is statutory liability to file affidavit regarding the same. Respondent No.1 had left particulars blank, therefore, there is violation of Rights of Information. Legislature has enacted Section 33-A and same was inserted by Act 72 of 2002 on 24.08.2008. Legislature had omitted information regarding property in Section 33-A.
26. Apex Court in paragraph-48 of its judgment passed in Union of India (supra) has issued following directions:-
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"48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine?
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof;
(3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependents.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
(5) The educational qualifications of the candidate.EP No.07 of 2019
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27. After passing of judgment dated 02.05.2002, Legislature has amended the Representation of Peoples Act, 1951 and has incorporated Section 33-A. In Section 33-A, directions given in points-3, 4 and 5, were not included and omission by Legislature was intentional. Since description of movable and immovable property was not included in Section 33-A of Act of 1951, therefore, it cannot be said that leaving particulars blank in column-9(1) violates right to information. Resultantly, issue No.2 is answered in negative.
28. Issue No.3 "whether non-compliance of Section 8(1)(e) and Section 8(2) of the Notaries Act, 1952 makes affidavit a nullity?
Section 8(1)(e) of Notaries Act, 1952 is quoted as under:-
"8. Functions of notaries - (1) A notary may do all or any of the following acts by virtue of his office; namely:-
(a) ***
(b) ***
(c) ***
(d) ***
(e) administer oath to, or take affidavit from, any person"
29. Petitioner has not pleaded that oath has not been administered to deponent. Petitioner also does not have a case that respondent No.1 had not signed the affidavit. Petitioner's case is that notary has not identified EP No.07 of 2019
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the deponent and has not put his signature on place for identification. Seal has been affixed on affidavit but notary has not put his signature over the seal. Respondent No.1 had examined himself as DW-1. He was questioned that no witness has identified him in affidavit. Respondent No.1 had replied that he does not know about the procedure to be followed by notary. It has also been admitted that there is no signature of notary on page-16. It has been stated by DW-1 that notary Reshu Jain was known to him for ten years. It has also been stated that nomination paper and affidavit were prepared in Bhopal. Notary has affixed the seal in his Office. He had denied the suggestion that notary was not in office. Considering the deposition of DW-1, it is clear that, respondent No.1 was known to notary. It has been argued by respondent No.1 that identification by witness is not required if deponent is known to notary. Petitioner has not made out any case that affidavit is not of respondent No.1 and only technical defect has been pointed out in the affidavit.
30. As per Conduct of Election of Rules, 1961, Returning Officer ought to have given an opportunity to a candidate to remove technical defect if any in affidavit. No such technical defect was pointed out and objection was also dismissed. In view of aforesaid circumstances, it cannot be said that there was non-compliance of Sections 8(1)(e) and 8(2) of the Notaries Act, 1952 and nomination paper was illegally accepted. Issue No.3 is answered in negative.
31. Issue No.4 is "whether election of respondent No.1 is void as result of election is materially affected by improper acceptance of nomination EP No.07 of 2019
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paper?" Learned counsel for respondent No.1 had relied on judgement reported in (1989) 4 SCC 773 {Lata Devi (Mali) Vs. Haru Rajwar}; (2002) 4 SCC 631 {Rajankumar Shankarrao Teware Vs. Ajit Anantrao Pawar}; (2014) 5 SCC 312, 1985 (supp) SCC 111; (2009) 10 SC 541; (2012) SCC Online Kerala 20029 and stated that to be successful in election petition for declaration of election of returned candidate to be void parties must plead and prove that result of election would have substantially and materially affected. No evidence has been adduced to show that vote casted in favour of respondent No.1 would have gone to petitioner if his nomination paper was not accepted. Only because petitioner has got second largest number of votes will not infer this Court to draw a prescription that in case of rejection of nomination paper of respondent No.1 votes would have gone in favour of petitioner. Petitioner has failed to adduced evidence that non-acceptance of nomination paper of respondent No.1 would have materially affected the result of election. There were other contesting candidates and if nomination paper of respondent No.1 was not accepted then said votes could have been casted in favour of petitioner or other contesting candidates. Court will not presume that all votes casted in favour of respondent No.1 could otherwise go in favour of petitioner. In view of same, petitioner has failed to adduced any evidence to show that result of election would have been materially and substantially affected if nomination paper of respondent No.1 was rejected. Resultantly, issue No.4 is also answered in negative. It has already been held that acceptance of nomination paper was not illegal.
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32. Issue No.4-A and issue No.5 have already been answered while answering issues No.1 to 4. Resultantly, issue No.4-A is answered in positive and issue no.5 is answered in negative.
33. In view of aforesaid discussion and circumstance of case, petitioner is not entitled to get any relief. Election petition, is dismissed without cost.
(VISHAL DHAGAT) JUDGE shabana SHABANA ANSARI Digitally signed by SHABANA ANSARI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=4bc06f2e678b75148b60bb7947ee9ffc5ed27ef1f43a5d4d93d2d13dda510735, pseudonym=B646F86821C200C9792A53984F1D0790135DE39A, serialNumber=8A5E15A33816E651B4DB52BF3225281EF6C191F68E5EBE90A6E101CF42422711, cn=SHABANA ANSARI Date: 2022.09.29 13:04:42 +05'30'