Patna High Court
Gopal Krishna Verma vs Rajiv Ranjan Singh@Lalan Singh on 1 May, 2012
Author: V.N. Sinha
Bench: V.N. Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.2 of 2009
In the matter of an application under Sections 80, 80A and 81 of the
Representation of the People Act, 1951
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GOPAL KRISHNA VERMA, SON OF LATE SAHDEO PRASAD VERMA @
LATE SAHDEO VERMA, RESIDENT OF VILLAGE GAJIPUR BAZAR, P.O.
TARAPUR, P.S. TARAPUR, DISTRICT MUNGER
.... .... Petitioner/s
Versus
RAJIV RANJAN SINGH @ LALAN SINGH, SON OF SRI JWALA PRASAD
SINGH, RESIDENT OF 50, BUDHA COLONY, P.S. BUDHA COLONY,
PATNA-1, DISTRICT PATNA
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. S.B.K. Manglam, Advocate
For the Respondent/s : Mr. S.N.P. Sharma, Sr. Adv, Amrendra Kr. Singh,
Advocate
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
C.A.V. JUDGMENT
V.N. Sinha, J 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 10th 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)
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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
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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 10th 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 10th 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 10th proposer at the same serial
i.e. 1175, after finding out the correct part number of his 10th
proposer, petitioner rushed back to the office of the Returning Officer
within half an hour while the process of scrutiny of the nomination
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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 10th 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 10th 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 10th 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
10th 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 10th 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
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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 10th 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 10th 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
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number of 10th 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 10th 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
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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 10th
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
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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
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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 10th 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 10th proposer of the election petitioner, namely, Sri
Shailesh Kumar was not correctly stated in the nomination paper and
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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.
4. In the light of the aforesaid pleadings made by the
parties, following issues were framed under order dated 8.1.2010 :-
i. Whether, the nomination paper of the petitioner was illegally
and improperly rejected by the Returning Officer for
insufficient reason and without compliance of the provisions
contained in the Representation of the People, Act, 1951 ?
ii. Whether, the election of the sole respondent is fit to be set
aside under the provisions contained in Section 100(1) of the
Representation of the People Act, 1951 on the ground that
the nomination of the petitioner has been improperly
rejected by the Returning Officer at the time of scrutiny of
nomination paper ?
iii. Whether, election petition as framed is maintainable ?
iv. Whether the copy served on the sole respondent is the true
copy of the original election petition ? If not, whether the
election petition is fit to be dismissed U/s 86(1) of the said
Act for non-compliance of Section 81(3) of the R.P. Act,
1951 ?
v. Whether the failure on the part of election petitioner by not
enclosing the copy of the nomination paper alleged to have
been improperly rejected ? If so, whether the election
petition is fit to be dismissed for not furnishing the material
facts in his pleading inasmuch as not enclosing the
contemporaneous evidence regarding the said allegation ?
vi. Whether the nomination paper of the petitioner has been
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improperly rejected when the nomination paper suffers from
substantial defect or not giving the correct part number and
serial number of the concerned voter list of the 10 th proposer
of the petitioner, namely, Shailesh Kumar and also not
clarifying the said vital defect occurred in the nomination
paper before Returning Officer during time of scrutiny even
if an ample opportunity was provided by the Returning
Officer to the petitioner ?
vii. Whether the nomination paper of the petitioner was further
fit to be rejected in view of the statement made in the written
statement of the sole respondent accompanied by affidavit of
the proposer of the petitioner namely, Manoj Sahni and as
such nomination paper was also required to be rejected by
the Returning Officer on this additional ground alone that
nomination paper does not contain genuine signature of the
proposer rather it was forged signature ?
viii. Whether the verification and affidavit subscribed by the
petitioner regarding election petition is not in accordance
with order 6, rule 15 C.P. Code ? If not, is the election
petition is fit to be dismissed in limine ?
5. In support of the contents of the election petition
election petitioner examined himself as P.W.-1 and supported the
contents of the election petition and submitted that his nomination
paper in both the sets were received by the Assistant Returning
Officer. At the time of presentation of the nomination paper all the 10
proposers accompanied the election petitioner. After petitioner
presented his nomination paper the Assistant Returning Officer called
out the name of his all the 10 proposers one by one to verify their
presence. After verification of the proposers the Assistant Returning
Officer passed on the nomination paper to the Assistants present in his
chamber to confirm the other requirements of a valid nomination
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paper. The assistants deputed to assist the Assistant Returning Officer
verified the nomination paper of the petitioner and having found the
nomination paper valid check list, receipt/notice fixing the date of
scrutiny on 11.4.2009 at 11 A.M. was issued to the petitioner by the
Assistant Returning Officer which has been marked as Exhibits-1 and
2 in these proceedings. Election petitioner has further averred in his
examination in chief that scrutiny of his nomination paper was taken
up on 11.4.2009 at about 3 P.M. and the Returning Officer disclosed
that the name of his 10th proposer Sri Shailesh Kumar does not find
mentioned at serial number of the part number as mentioned in the
nomination paper, which surprised the petitioner as the serial, part
number of all his 10 proposers was verified by the Assistants deputed
to assist the Returning Officer at the time of presentation of his
nomination paper and no such defect was pointed out to the petitioner
at the time of presentation of the nomination paper. Petitioner himself
also looked into the nomination paper and found that the name of his
10th proposer does not find mentioned at serial no.1175 of part no.19
of the voter list of 165-Munger(General) Assembly Constituency, the
defect pointed out being clerical election petitioner requested the
Returning Officer to furnish the voter list of part nos.17, 18, 19 so as
to enable him to correct the serial, part number of his 10 th proposer.
The Returning Officer, however, made available the voter list of part
no.17 and 19 but did not give the petitioner voter list of part no.18 of
165-Munger(General) Assembly Constituency. Petitioner having gone
through the voter list of part nos.17 and 19 of 165-Munger(General)
Assembly Constituency could not locate the name of his 10 th proposer
and made request to the Returning Officer time and again to furnish
the voter list of part no.18 so as to enable the petitioner to locate the
name of his 10th proposer and correct the same in the nomination
paper but the Returning Officer acted adamant and did not furnish the
voter list of part no.18 of 165-Munger(General) Assembly
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Constituency. In paragraph-9 of the examination in chief petitioner
asserted that he requested the Returning Officer to adjourn the process
of scrutiny of his nomination paper for the next day so that he may
collect the correct serial, part number of his 10 th proposer after going
through the voter list of 165-Munger (General) Assembly
Constituency but the Returning Officer did not adjourn the process of
scrutiny of the nomination paper of the election petitioner to the
following day despite his repeated request, virtually petitioner was
begging before the Returning Officer for such adjournment. In
paragraph-10 of the examination in chief petitioner stated that as the
Returning Officer looked adamant not to furnish the copy of the voter
list of part no.18 of 165-Munger(General) Assembly Constituency and
made up his mind to reject the nomination paper of the election
petitioner without providing him opportunity to remove the defect in
his nomination paper petitioner had no option but to request the
Returning Officer to grant him half an hour time so that he may rush
to the District Election office to find out the correct serial, part
number of his 10th proposer. In paragraph-11 of the examination in
chief election petitioner stated that on his request for grant of at least
half an hour to remove the defect, the Returning Officer granted 15
minutes to remove the defect in the nomination paper. In paragraphs-
12, 13, 14 it has been stated that petitioner immediately rushed to the
District Election Office where voter list of all Assembly
constituencies constituting Munger Parliamentary Constituency was
available and on his request the voter list of part no.18 of 165-
Munger(General) Assembly Constituency was made available to the
petitioner and within no time he could locate the correct serial number
of his 10th proposer in the voter list of part no.18 of 165-
Munger(General) Assembly Constituency and immediately rushed
back to the collectorate where scrutiny of nomination paper by the
Returning Officer was still in progress. Having reached the place of
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scrutiny within 20-25 minutes of his departure to find out the correct
serial, part number of his 10th proposer petitioner found the Returning
Officer still proceeding with the scrutiny of nomination paper of other
candidates. No sooner the scrutiny of nomination paper of the
particular candidate which was in progress from before was over
petitioner informed the Returning Officer that he has found out the
correct serial, part number of his 10th proposer and be permitted to
correct the same in his nomination paper but the Returning Officer
stated that since 15 minutes time was granted for removal of defect
and it is almost half an hour he will not permit correction in his
nomination paper as the same has already been rejected. In paragraph
15 of the examination in chief petitioner stated that he made repeated
request before the Returning Officer that rejection of his nomination
paper for defect of clerical nature would not be a proper rejection as
he is ready to correct the defect but the Returning Officer did no listen
to him and proceeded with the scrutiny of nomination paper of other
candidates. It is further stated in the same paragraph that petitioner
repeatedly requested the Returning Officer to allow him to correct the
defect so that his nomination paper may not be rejected for a clerical
defect. Returning Officer did not consider the request of the election
petitioner and continued with the scrutiny of nomination paper of
other candidates and advised the petitioner to try his luck in the next
election. In paragraph-16 of the examination in chief petitioner has
stated that he was requesting rather begging before the Returning
Officer in presence of the observer and the Assistant Returning
Officer to permit him to correct the serial, part number of his 10 th
proposer. It is further stated in the said paragraph that Assistant
Returning Officer as also the observer deputed by the Election
Commission of India also requested the Returning Officer to allow the
election petitioner to make correction in his nomination paper but the
Returning Officer did not accept their advice and said that he has
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already rejected the nomination paper. In paragraphs-17, 18, 19, 20,
21, 23 of his examination in chief petitioner has given the details of
the representation dated 11, 12, 13.04.2009 whereunder he informed
the Returning Officer and other superior officers including the
Election Commission of India about the partisan attitude of the
Returning Officer, which have been marked as Exhibits-3, 4, 5, 6, 7,
8, 9, 10, 11, 12 and 13 in these proceedings. In paragraph-24 of his
examination in chief the election petitioner has submitted that in
compliance of the instructions of the Election Commission of India
proceedings taken at the time of presentation and scrutiny of the
nomination paper was videographed the interaction which took place
between the election petitioner and the Returning Officer, the
Returning Officer and the Assistant Returning Officer and the
Returning Officer and the observers at the time of scrutiny of
nomination paper are part of the video cassette, which has been
transmitted to this Court by the Returning Officer in compact disc,
which is marked as Exhibit-18.
6. In paragraphs-16 and 17 of his cross-examination
election petitioner, P.W.-1 has stated that at the time of presentation
of his nomination paper the Assistant Returning Officer and the
Assistants present to assist Assistant Returning Officer also
overlooked the mistake in serial, part number of his 10 th proposer and
the Assistant Returning Officer never pointed out any mistake in his
nomination paper. He further stated that suggestion that petitioner
ignored the information given by the Assistant Returning Officer
about the mistake in his nomination paper is not correct. In paragraph-
17 petitioner has also refuted the suggestion that he was not a serious
candidate. In paragraph 26 of his cross-examination the election
petitioner has stated that within one minute the scrutiny of his
nomination paper was over and the Returning Officer informed him
that part number of his 10th proposer is incorrect and having said so he
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also told election petitioner that his nomination paper is rejected. In
the same paragraph election petitioner volunteered that having heard
the order of Returning Officer rejecting his nomination paper he
submitted before the Returning Officer that the ground on which his
nomination paper is rejected being technical in nature he be allowed
time to rectify or remove the defect. In paragraph-27 petitioner stated
that he made verbal request before the Returning Officer to permit
him to remove the technical defect. In the same paragraph petitioner
volunteered that the request made by the petitioner to the Returning
Officer to permit the petitioner to remove the technical defect in the
nomination paper has also been videographed as per the instructions
of the Election Commission of India contained in letter dated
10.02.2009. In paragraph 28 of the cross-examination the election petitioner denied the suggestion that he never requested the Returning Officer to permit him to correct the technical mistake in his nomination paper and left the place of scrutiny without making such request. In paragraphs-30, 32 of his cross-examination election petitioner states that he informed the Returning Officer that his 10 th proposer is either in part no.17, 18 or 19 of the voter list of 165- Munger(General) Assembly Constituency. In paragraph-33 election petitioner has denied the suggestion that he had not made request to the Returning Officer to furnish the copy of the voter list of part nos.17, 18, 19 of 165-Munger(General) Assembly Constituency. In paragraph-35 election petitioner states that during the scrutiny itself he submitted his representation but as no receipt was granted either by the Returning Officer or his Assistants he submitted representation through fax after scrutiny process was over. In paragraph-36 he has denied the suggestion that he asked for only half an hour time from the Returning Officer to remove the defect in his nomination paper. In the same paragraph election petitioner has volunteered that he asked for time until next day to remove the defect but the Returning Officer Patna High Court E.P. No.2 of 2009 dt.01-05-2012 17/63 granted him initially 15 minutes to remove the defect and on further request the time granted was extended by half an hour but before expiry of the time granted within 20-25 minutes, itself petitioner came back with the correct part number of his 10 th proposer but the Returning Officer did not accept the same. In paragraph-38 of the cross-examination election petitioner stated that from the certified copy of Annexure-3 obtained from the office of the Returning Officer also it appears that the same was received on 11.4.2009 at 6.21 P.M. In paragraph-39 of the cross-examination election petitioner stated that the suggestion that he submitted application dated 11.4.2009 after rejection of his nomination paper is not correct. In the same paragraph witness volunteered that he submitted application dated 11.4.2009 before rejection of his nomination paper but receipt thereof was not given to the witness and in order to establish its dispatch he sent Annexure-3 through fax. In paragraph-41 of his cross-examination election petitioner stated that he standby his statement made in paragraph-14 of his examination in chief. In paragraph-60 of the cross-examination election petitioner has denied the suggestion that he deliberately committed mistake in his nomination paper as regards part number of his 10th proposer for the purposes of election petition. In paragraph-100 of his cross-examination election petitioner states that it is true that in the order rejecting the nomination paper the Returning Officer has written that he granted the election petitioner half an hour time to remove the defects but he could not remove the defect within the time granted and he rejected nomination paper but such fact is not correct. In paragraph 101 of the cross-examination the witness states that at page 26 and 27 of the order sheet maintained by the Returning Officer in connection with Munger Parliamentary Election, 2009, Exhibit-6 the Returning Officer has indicated the reasons in brief which weighed with him to reject his nomination paper. In the same paragraph witness volunteers that the reasons are Patna High Court E.P. No.2 of 2009 dt.01-05-2012 18/63 not correct. In paragraph-102 of the cross-examination witness stated that Exhibit-7 is his petition dated 11.04.2009 but in the said petition he has not indicated any time. In paragraph-103 of the cross- examination election petitioner accepts that Exhibit-8 is fax receipt in which the time indicated is 7.09 P.M. In paragraph-104 of the cross examination witness states that Exhibit-7 is his application dated 11.04.2009 which was transmitted through fax to the Returning Officer at 6.20 P.M. and such fact is evident from Exhibit-7, which has come from the office of the Returning Officer and bears his seal. In paragraph-105 election petitioner has denied the suggestion that he transmitted his application on 11.4.2009 Exhibit-7 after the scrutiny proceedings were over. In the same paragraph the witness volunteers that the Returning Officer did not accept his application submitted by hand, whereafter he transmitted the application through fax at 6.20 P.M. In paragraph-106 of the cross-examination election petitioner admits that he does not have any documentary evidence to suggest that he submitted his application dated 11.4.2009 to the Returning Officer while the scrutiny proceeding was on. In paragraph-82 of the cross-examination election petitioner states that the application dated 11.4.2009 which has been shown to him is not the application which he had filed before the Returning Officer at the time of rejection of his nomination paper, rather it is the application which was sent by him through fax. In paragraph-83 election petitioner states that before sending the application dated 11.4.2009 through fax he had presented the same application before the Returning Officer but he did not accept the same.
7. P.W.-2 Ram Badan Rai who also contested the impugned election as official candidate of Rastriya Janta Dal political party has been examined in these proceedings as P.W.-2. P.W.-2 has stated in paragraph-2 that he was himself present at the place of scrutiny of nomination paper(s) since he had some information that Patna High Court E.P. No.2 of 2009 dt.01-05-2012 19/63 the Returning Officer may reject his nomination paper to ensure/confirm the victory of the sole respondent. P.W.-2 further stated in paragraph-5 of his examination in chief that, although scrutiny of his nomination paper was over but he was present at the place of scrutiny at the time of scrutiny of nomination paper of election petitioner, which was taken up at 3 P.M. He has further stated in the said paragraph that no sooner scrutiny of nomination paper of the election petitioner was taken up at about 3 P.M. within no time the Returning Officer informed the election petitioner that serial, part number of his 10th proposer is wrong. He further stated in the same paragraph that election petitioner requested the Returning Officer to furnish a copy of voter list of booth nos.17, 18 and 19 of 165- Munger(General) Assembly Constituency but the Returning Officer gave to the election petitioner the voter list of only two booths, namely 17 and 19. In paragraphs 6, 7 of the examination in chief P.W.-2 stated that election petitioner went through the voter list of booth nos.17 and 19 but when he did not find the name of his 10 th proposer in those two voter list he requested the Returning Officer to supply the copy of voter list of booth no.18 but the Returning Officer refused to furnish the same. Election petitioner then requested the Returning Officer to adjourn the process of scrutiny for the following day but the Returning Officer initially granted him 15 minutes time to remove the defect in part, serial number of his 10 th proposer but on further request from the election petitioner to grant him at least half an hour time the Returning Officer granted the election petitioner half an hour time to remove the defect. After grant of time the election petitioner immediately left the place of scrutiny and within 20-25 minutes was again present at the place of scrutiny and the witness saw the election petitioner requesting the Returning Officer to permit him to correct the part number of his 10th proposer but the Returning Officer did not allow him to correct the part number and verbally Patna High Court E.P. No.2 of 2009 dt.01-05-2012 20/63 stated that he has already rejected his nomination paper. In paragraph- 9 P.W.2 states that election petitioner requested the Returning Officer to give him a copy of the rejection order but the Returning Officer stated that he would pass the detailed order after the entire scrutiny process is over. In paragraph-10 P.W.-2 states that the election petitioner drafted a petition at the place of scrutiny itself and presented it before the Returning Officer with request to receive the same but the Returning Officer refused to receive the application though the process of scrutiny was still in progress. In paragraph-11 P.W.-2 states that process of scrutiny concluded at about 7 P.M. on the date on which the nomination paper of the election petitioner was improperly rejected by the Returning Officer.
8. In paragraph-8 of his cross examination P.W.-2 admits that he has also filed election petition in this Court challenging the election of the returned candidate. In paragraph-9 P.W.-2 admits that in the said election petition he has not written that he had any information that his nomination paper is going to be rejected by the Returning Officer. In paragraph-19 of the cross-examination the witness denied the suggestion that he left the place of scrutiny after scrutiny of his nomination paper was over. In paragraphs-28, 30 of his cross-examination P.W.-2 states that scrutiny of nomination paper of election petitioner commenced at 3.05 P.M. and was over at 3.28 P.M. and he was initially granted 15 minutes to remove the defect but after some persuation the time was extended by half an hour. In paragraph- 31 P.W.-2 stated that election petitioner did not make prayer for time by filing written application. In paragraph-32 P.W.-2 states that after the election petitioner returned back with voter list of part no.18 to remove the defect he was informed by the Returning Officer that his nomination paper has already been rejected, whereafter he submitted written application to the Returning Officer. In paragraph-34 P.W.-2 states that application which the election petitioner filed after rejection Patna High Court E.P. No.2 of 2009 dt.01-05-2012 21/63 of his nomination paper was not accepted by the Returning Officer as he stated that his nomination paper having already been rejected, no useful purpose will be served by filing the said petition and he should take his chance before the Superior authorities.
9. In support of the impugned election three witnesses, namely, Returning Officer, Assistant Returning Officer and the sole respondent have been examined as R.W.-1, 2, 3. Returning Officer, R.W.-1 stated in paragraphs 4, 5 of his examination in chief that during scrutiny of the nomination paper of the election petitioner who had filed his nomination paper as an independent candidate he found that serial, part number of one of his proposer Sri Shailesh Kumar as mentioned in the nomination paper could not be verified from the voter list, whereafter the said defect was pointed out to the election petitioner who asked for half an our time to locate the name of his aforesaid proposer in the voter list. The witness further stated that he furnished the voter list of the relevant part of the Assembly Constituency as asked for by the election petitioner. It is further stated that in spite of providing full opportunity to the election petitioner to locate the name of his 10th proposer in the relevant part of voter list within half an hour asked for by the election petitioner the said defect was not removed within the time asked for, Returning Officer had no alternative but to reject the nomination paper of the election petitioner by passing reasoned order in presence of the petitioner. In paragraph-6 of the examination in chief the Returning Officer stated that during the entire period of scrutiny of the nomination paper of the election petitioner no written petition or complaint was filed before him either by election petitioner or on his behalf. In paragraph-7 of the examination in chief Returning Officer stated that during the scrutiny of the nomination paper of the election petitioner Sri Ram Badan Rai who was also a candidate for the said election was not present as Sri Ram Badan Rai left the place of scrutiny no sooner the scrutiny of his Patna High Court E.P. No.2 of 2009 dt.01-05-2012 22/63 nomination paper was over. In paragraph-13 of the cross-examination R.W.-1 Returning Officer stated that for clerical and technical errors Returning Officer should not reject the nomination paper but for substantial defect in the nomination paper he can always reject the nomination paper. In paragraph-14 of the cross-examination Returning Officer stated that defect in indicating serial, part number of the proposer in the nomination paper is a substantial defect in the nomination paper. In paragraph-15 of the cross examination Returning Officer stated that he is aware about the provision, which cast a duty upon the Returning Officer to grant adequate opportunity to the candidate to remove the defect in the nomination paper. In paragraph- 16 of the cross-examination, Returning Officer stated that he is aware that in appropriate case the scrutiny of a particular nomination paper may be postponed to the next day. In paragraph-17 of the cross- examination Returning Officer stated that any candidate asking for time to remove the defect in the nomination paper until next day may be allowed such adjournment, provided the grounds taken by the candidate is satisfactory. In paragraph-18 witness stated that the maximum time which the Returning Officer can allow for removal of the defect is by the next day but such maximum time is not to be allowed in every case and it depends upon the request made by the candidate as also the nature of defect and considering the two, it is the discretion of the Returning Officer to grant appropriate time for removal of the defect. In paragraph-19 of the cross-examination Returning Officer stated that he is aware of the provision by which the officer receiving the nomination paper has to go through the nomination paper along with the persons assisting him so as to find out the defect in the nomination paper in presence of the candidate and to inform him about the defects with request to remove the same. In paragraph-24 of the cross-examination Returning Officer having perused Sub-Section-(5) of Section 36 of the Act stated that Returning Patna High Court E.P. No.2 of 2009 dt.01-05-2012 23/63 Officer has been given discretion to grant time to the candidate for removing the defect in the nomination paper. In paragraphs-25, 26 of the cross-examination the Returning Officer stated that discretion granted to the Returning Officer under Sub-Section-(5) of Section-36 of the Act for granting time to the candidate to remove the defect is inbuilt as per the language used in the Section. In paragraph-27 of the cross-examination Returning Officer stated that nature of defect would determine the time which is to be granted to remove the defect as per the prayer made by the candidate. In case, the defect is such which cannot be removed on the day of scrutiny then in such cases the candidate is allowed time until next day of the date fixed for scrutiny. In other cases, the candidate is to remove the defect on the same day. In paragraph-30 of the cross-examination Returning Officer denied the suggestion that he made false statement in paragraph-20 and 23 of his cross examination yesterday and again reiterated that Assistant Returning Officer who received the nomination paper of the election petitioner did his job as per law. In paragraph-32 of the cross- examination Returning Officer stated that Assistant Returning Officer informed him that he had pointed out the defect in the nomination paper of the election petitioner to the election petitioner. In paragraph- 33 of the cross-examination Returning Officer, however, stated that he did not remember whether he recorded in his order sheet that the Assistant Returning Officer had informed him that he had pointed out to the election petitioner at the time of receiving his nomination paper the defects in his nomination paper. In paragraph-34 of the cross examination Returning Officer stated that from the order sheet maintained by him pertaining to the impugned election it does not appear that any verbal communication was received from the Assistant Returning Officer about the defects in the nomination paper of the election petitioner. In paragraph-36 of the cross-examination the Returning Officer stated that there is no written instruction as to Patna High Court E.P. No.2 of 2009 dt.01-05-2012 24/63 how defect in the electoral roll number and part number of the proposer is to be communicated to the candidate or his proposer. In paragraph-37 the Returning Officer stated that there is no instruction to provide verbal information about the mistake in the electoral roll number and part number of the proposer in the nomination paper. In paragraph-40 of the cross-examination the Returning Officer stated that according to the Hand Book of the Election Commission of India issued for the Returning Officer, it is undesirable to reject the nomination paper of the candidate on account of defects which could be corrected by the candidate and for removal of such defect assistance of candidate is required. The Returning Officer, Assistant Returning Officer cannot correct the defect themselves on behalf of the candidate in the nomination paper. In paragraph-41 of the cross- examination the Returning Officer stated that at the time of presentation of the nomination paper and thereafter defect in the nomination paper of the election petitioner was not removed as election petitioner did not take steps to remove the defect in the nomination paper. In paragraph 42 of the cross-examination Returning Officer stated that no letter was received by him from the Assistant Returning Officer pointing out the defects as also stating that in spite of information given to the candidate about the defects the same has not been removed by him. In paragraph-49 of his cross-examination the Returning Officer stated that the process of scrutiny had begun at 11 A.M. and continued till 4.30 P.M. In paragraph 51 of the cross- examination the Returning Officer admitted the presence of the election petitioner at the time scrutiny of his nomination paper was taken up. In paragraph-54 of his cross-examination Returning Officer stated that he did not issue any memo to the election petitioner about the defects in his nomination paper. In paragraph-55 Returning Officer stated that election petitioner was present during scrutiny of his nomination paper and having scrutinized the nomination paper he Patna High Court E.P. No.2 of 2009 dt.01-05-2012 25/63 verbally informed the election petitioner about the defect in the nomination paper. In paragraph-56 Returning Officer stated that there is no endorsement of the Assistant Returning Officer on the nomination paper of the election petitioner that the same is defective or the election petitioner was verbally informed about defects in the nomination paper by the Assistant Returning Officer who received the nomination paper. In paragraph-57 Returning Officer stated that the election petitioner having learnt about the defect did not ask for adjournment. In paragraph-58 of the cross-examination Returning Officer stated that having noticed the defect in the nomination paper of the election petitioner he granted the election petitioner half an hour to remove the defect as was demanded by him. In paragraph-59 the Returning Officer stated that election petitioner never made any request in writing during the scrutiny for grant of further time to remove the defect in the nomination paper. In paragraph-60 of the cross-examination Returning Officer stated that election petitioner verbally asked for half an hour to remove the defect found in his nomination paper, which was granted as per his verbal request. In paragraph-61 of the cross-examination Returning Officer stated that from the order sheet maintained by him at the time of scrutiny of nomination paper of impugned election it would appear that he granted half an hour to the election petitioner as per his request to remove the defect and such fact is mentioned in the order sheet at page 27. In the said paragraph the witness has further clarified that the time was granted to the election petitioner as per his verbal request. In paragraphs 62, 63, 64 of the cross-examination Returning Officer stated that election petitioner asked him to furnish the copy of the voter list of 165-Munger(General) Assembly Constituency and he made available the copy of those parts of voter list which was asked for by the election petitioner. In pargraph-66 of the cross-examination Returning Officer stated that specific part of the voter list which the Patna High Court E.P. No.2 of 2009 dt.01-05-2012 26/63 election petitioner asked for to enable him to remove the defect in the nomination paper is not mentioned in the order sheet. In paragraph-67 of the cross-examination Returning Officer denied the suggestion that he made false statement that election petitioner asked for particular part numbers of the voter list of 165-Munger(General) Assembly Constituency, which was not given to him and that is why he has not mentioned the part number of the voter list which were given to the election petitioner at his request. In paragraph-68 of the cross- examination the Returning Officer stated that part number of the voter list which was furnished to the election petitioner in response to his demand is not indicated in the order sheet. In paragraph-70 of the cross-examination the Returning Officer stated that in the order rejecting the nomination paper of the election petitioner part number of the voter list supplied to him is not indicated. In paragraphs-72, 73, 74 Returning Officer stated that during 2009 Parliamentary Election the Election Commission of India instructed all the Returning Officers to videograph the important events of the election process, namely, receipt of nomination paper, scrutiny, allegation with regard to violation of model code of conduct etc. In paragraph-75 the Returning Officer stated that when he was told about the defect in the nomination paper of the election petitioner by the Assistant Returning Officer who received his nomination paper he did not look into the video cassette to confirm the information furnished by the Assistant Returning Officer. In paragraphs-80, 81, 82, 83, 84 of the cross- examination Returning Officer has stated that he received the application dated 11.4.2009 of the election petitioner through fax late in the evening and it is incorrect to say that when he received the fax message dated 11.4.2009 process of scrutiny was still in progress. In paragraph-86 Returning Officer stated that there are five compact disc of video prepared during submission of nomination paper by different candidates over which the word nomination has been written, which is Patna High Court E.P. No.2 of 2009 dt.01-05-2012 27/63 marked as Exhibit-18. In paragraph-87 Returning Officer stated that there are two compact disc of video prepared during scrutiny proceeding over which part nos.1 and 2 has been written, which is marked as Annexure-18A. In paragraph-88 Returning Officer stated that it is incorrect to suggest that Assistant Returning Officer did not verbally inform the election petitioner about the defect in his nomination paper. In paragraph-89 of the cross-examination Returning Officer stated that it is incorrect to suggest that he did not give the election petitioner voter list of 165-Munger(General) Assembly Constituency, which was asked for at the time of scrutiny of his nomination paper and as he did not give the voter list to the election petitioner he has not recorded the part number in his order sheet which was given to the election petitioner for removal of defect.
10. R.W.-2 is the Assistant Returning Officer who was authorized by the Returning Officer to discharge the duties of the Assistant Returning Officer as per law as also to receive the nomination paper of the candidate for the impugned election. In paragraph-6 of the examination in chief Assistant Returning Officer stated that the election petitioner presented his nomination paper on the last date fixed for filing the nomination paper for the impugned election. In paragraph-7 of the examination in chief Assistant Returning Officer stated that part, serial number of one of the proposers of the election petitioner did not tally with the entries in the electoral roll as mentioned by him in his nomination paper which mistake was pointed out to the election petitioner by the Assistant Returning Officer but election petitioner did not take any step to correct the mistake. In paragraph-8 of the examination in chief Assistant Returning Officer stated that he informed the Returning Officer about the defect in the nomination paper of the election petitioner as also his lack of interest in correcting the same. In paragraphs-9, 10, 11 of the examination in chief Assistant Returning Patna High Court E.P. No.2 of 2009 dt.01-05-2012 28/63 Officer stated that he was also present during the process of scrutiny and the defect in the nomination paper of the election petitioner was pointed out to him by the Returning Officer and that he asked for half an our time for removing the defect which was granted by the Returning Officer. In paragraph-12 of the examination in chief the Assistant Returning Officer stated that election petitioner was also provided with voter lists which were asked by him during scrutiny of his nomination paper. In paragraph-13 Assistant Returning Officer stated that after lapse of half an hour asked for by the election petitioner and his inability to remove the defect in his nomination paper the Returning Officer had no option but to reject his nomination paper. In paragraph 14 of the examination in chief Assistant Returning Officer stated that Sri Ram Badan Rai was not present at the time of scrutiny of nomination paper of the election petitioner. In paragraph-7 of his cross-examination Assistant Returning Officer denied the suggestion that he did not receive the nomination paper of the election petitioner, sole respondent and others. In paragraphs-14, 15 of the cross examination Assistant Returning Officer stated that as per his memory he received nomination paper of election petitioner on 9.4.2009 the last date for filing the nomination paper just 15-20 minutes earlier to the closing time, which is also indicated over the nomination paper. In paragraphs-17, 19 of his cross-examination Assistant Returning Officer stated that there was no instruction of the Election Commission of India to point out the defects in the nomination paper filed by the candidate either verbally or in writing. In paragraph-20 of the cross examination Assistant Returning Officer stated that there is no instruction to inform the election candidate about the defect in the nomination paper but by way of providing opportunity information about the defect was given to the petitioner. In paragraph-22 Assistant Returning Officer having seen Annexure-2 to the election petition, the form stated that as the defect in the Patna High Court E.P. No.2 of 2009 dt.01-05-2012 29/63 nomination paper of the election petitioner was not covered by any of the columns of the form information about the defect was verbally given to the election petitioner. In paragraph-25 of the cross examination Assistant Returning Officer stated that the proceeding undertaken at the time of receipt of the nomination paper of the election petitioner and other candidates was videographed in audio video mode. In paragraph-26 of the cross examination Assistant Returning Officer stated that the defect in the nomination paper of the election petitioner was conveyed to the election petitioner verbally. In paragraph-27 of his cross-examination Assistant Returning Officer stated that he did not put any remarks on the nomination paper of the election petitioner that the same is defective but he indicated the date and time on which the same was received by him. In paragraph-28 of the cross examination he denied the suggestion that he had not verbally informed the election petitioner about the defect in his nomination paper. In paragraph-29 of the cross examination Assistant Returning Officer stated that he did not see video cassette at the time of receipt of the nomination paper of the petitioner, as such, he is not aware whether conversation between him and the election petitioner about the defects in his nomination paper was videographed. In paragraph-30 of the cross-examination Assistant Returning Officer stated that proceeding undertaken at the time of receipt of the nomination paper, its scrutiny was videographed under the instructions of the Election Commission of India, but he is not aware about the contents of the cassette. In paragraph 31 of the cross examination Assistant Returning Officer stated that it is incorrect to suggest that he had not informed the election petitioner about the defect in his nomination paper.
11. R.W.-3 is the sole respondent who has not dwelt about the presentation and scrutiny of the nomination paper of the election petitioner, as such, his evidence is not being considered. Patna High Court E.P. No.2 of 2009 dt.01-05-2012 30/63
12. Learned counsel for the petitioner with reference to the pleadings made in the election petition and the evidence led on behalf of the parties as also the provisions of Section 33 of the Act submitted that election petitioner being an independent candidate filed his nomination paper for contesting the impugned election proposed by 10 electors of the Constituency in two sets, which was received by the Assistant Returning Officer on 9.4.2009 at 2.48 P.M., who handed over the nomination paper to the Assistants present to assist him for the purposes of verification of serial, part number of the proposers as mentioned in the nomination paper and the electoral roll. The Assistants verified the serial, part number as mentioned in the nomination paper with the electoral roll and no defect was pointed out to the petitioner at the time of presentation of his nomination paper that serial, part number of any of his 10 proposers did not match with the entries made in the concerned electoral roll. At the time of presentation of the nomination paper by the petitioner no defect in both the sets of the nomination paper was pointed out to the petitioner. On the contrary, petitioner was served with check list under the signature of the Assistant Returning Officer without any instruction to remove the defect in his nomination paper. With reference to Sub- Section-(4) of Section 33 of the Act it is submitted that on the presentation of the nomination paper it was the duty of the Returning Officer to satisfy himself that the names and electoral roll number of the candidate and his proposers as entered in the nomination paper are the same as those entered in the electoral roll and any inaccurate description, clerical, technical or printing error in regard to the name of the candidate or his proposers as entered in the nomination paper or in the electoral roll be overlooked and no nomination paper should be rejected at the time of scrutiny because of the discrepancy of serial, part number as mentioned in the nomination paper and the electoral roll of the candidate and his proposers. It is further submitted that as Patna High Court E.P. No.2 of 2009 dt.01-05-2012 31/63 no defect was pointed out by the Assistant Returning Officer at the time of receipt of the nomination paper petitioner was under the impression that there is no defect in his nomination paper. It is further submitted that petitioner being a serious candidate personally went to attend the process of scrutiny which was scheduled for 11.4.2009 and as his nomination papers were numbered as 56, 57 scrutiny of his nomination paper was taken up by the Returning Officer at about 3 P.M. After going through the nomination paper of the petitioner Returning Officer informed him that serial number and part number of his 10th proposer Sri Shailesh Kumar is not found in the voter list of the concerned part. Such information surprised the petitioner who informed the Returning Officer that aforesaid defect was never pointed out to him by the Assistant Returning Officer as also the Assistants present at the time of presentation/receipt of his nomination paper. Petitioner thereafter asked the Returning Officer to furnish the voter list of part nos.17, 18, 19 of 165-Munger(General) Assembly Constituency so as to enable him to locate the correct serial, part number of his 10th proposer and to remove the defect in his nomination paper. The Returning Officer furnished the voter list of part nos.17, 19 but did not furnish the voter list of part no.18 of 165- Munger(General) Assembly Constituency. It is submitted on behalf of the petitioner that having gone through the voter list of part nos.17, 19 petitioner could not locate the name of his 10th proposer and again requested the Returning Officer to furnish the voter list of part no.18, which was not given despite repeated request of the petitioner to make available the voter list of part no.18. Petitioner thereafter requested the Returning Officer to adjourn scrutiny of his nomination paper till the next day so as to enable him to remove the defect but the prayer of the petitioner to adjourn the scrutiny proceeding until next day was also rejected by the Returning Officer granting the petitioner 15 minutes to remove the defect, whereafter petitioner rushed to the District Election Patna High Court E.P. No.2 of 2009 dt.01-05-2012 32/63 Office which is also situate in the collectorate where the process of scrutiny was in progress and obtained voter list of part no.18 of 165- Munger(General) Assembly Constituency. In the District Election Office without any delay petitioner found out the name of his 10th proposer mentioned at serial no.1175 of part no.18 of the voter list of 165-Munger(General) Assembly Constituency. Having found the serial number of his 10th proposer petitioner rushed back to the office of the Returning Officer for removal of the defect when the scrutiny process was still on and the Returning Officer was proceeding with the scrutiny of nomination paper of other candidate. Petitioner having obtained part, serial number of his 10th proposer requested the Returning Officer to permit him to remove the defect in the nomination paper. The Returning Officer did not permit the petitioner to remove the defect as the time granted for removal of the defect had already expired and his nomination paper was rejected no sooner the time granted for removal of defect was over. In this connection, it was further pointed out that when the petitioner came back from the District Election Office with the correct serial, part number of his 10th proposer the process of scrutiny was not over and the Returning Officer was engaged in the scrutiny of nomination paper of other candidate. No sooner the scrutiny of the ongoing candidate's nomination paper was over the petitioner requested the Returning Officer to allow him to remove the defect in his nomination paper but he was informed by the Returning Officer that his nomination paper has already been rejected.
13. Learned counsel for the petitioner with reference to Exhibits-4, 4A and 4B the voter list of booth nos.17, 18 and 19 of 165-Munger(General) Assembly Constituency submitted that from perusal of voter list of booth no.18 it would appear that name of 10 th proposer of the petitioner is at the same serial number which was mentioned in the nomination paper, which would corroborate the Patna High Court E.P. No.2 of 2009 dt.01-05-2012 33/63 statement of the petitioner that the voter list of part no.18 was not made available to him by the Returning Officer and had it been made available petitioner would have removed the defect in his nomination paper. It is further submitted that petitioner made attempt to file written representation before the Returning Officer highlighting the manner in which he was not granted opportunity to remove the defect but the Returning Officer refused to entertain and acknowledge the same forcing the petitioner to send the representation to the Returning Officer through fax on 11.4.2009, which has been marked as Exhibit-
7. It is also submitted that as the Returning Officer failed to take any action in response to the request made by the petitioner in representation dated 11.4.2009, Exhibit-7 petitioner filed further representations to the Returning Officer on 12.4.2009, Exhibit-9 through fax vide receipt Exhibit-10, 10A, copy whereof was also sent to the Election Commission of India, Exhibits-11, 11A. Reliance has also been placed on Exhibit-12 the attendance register maintained by the Returning Officer at the time of scrutiny and Exhibit-13 application of the petitioner dated 16.4.2009 addressed to the Chief Electoral Officer, Bihar complaining about non-supply of the certified copy of the required documents. Learned counsel for the petitioner has also brought on record the instructions issued by the Election Commission of India regarding videography of the process of scrutiny and filing of nomination paper and submitted that at the instance of the election petitioner the compact disc of the process of presentation and scrutiny of the nomination paper was produced before this Court which was displayed on the computer in presence of the counsel for the parties. With reference to the evidence of R.W.-2 it is submitted that R.W.-2 had stated that defect regarding the incorrect serial, part number of the 10th proposer of the election petitioner was verbally informed to the petitioner. In this regard, it is submitted that it is a fact that Assistant Returning Officer had received the nomination paper of Patna High Court E.P. No.2 of 2009 dt.01-05-2012 34/63 the petitioner in absence of the Returning Officer. Video cassette containing video pictures concerning presentation process of the nomination papers was displayed but it did not reflect that the defect regarding incorrect serial, part number of the 10th proposer of the petitioner was ever conveyed to the petitioner even verbally. With reference to the contents of the video cassette concerning presentation of the nomination paper does not support the defence put forth by the Assistant Returning Officer that he had informed the election petitioner verbally about the defect in his nomination paper.
14. Learned counsel for the petitioner with reference to the evidence of Returning Officer R.W.-1 submitted that R.W.-1 admitted in his cross examination vide paragraph-34 that defect in serial, part number of the 10th proposer of the petitioner was verbally communicated by the Assistant Returning Officer to the petitioner but such fact is not mentioned by him in his order sheet that verbal communication was made to him by the Assistant Returning Officer that defect in the nomination paper of the election petitioner has been conveyed to him.
15. Learned counsel for the petitioner further submitted that from the entire evidence of the two official witnesses i.e. Returning, Assistant Returning Officer, it is evidently clear that there does not exist any document to show that the defects regarding incorrect serial, part number of the 10th proposer of the petitioner was detected at the time of presentation/receipt of the nomination paper and that the petitioner was informed about such defect, which is quite evident from the video cassette of the presentation proceedings.
16. Learned counsel for the petitioner also submitted with reference to paragraphs-63, 66 of the cross-examination of the Returning Officer that during scrutiny when Returning Officer noticed the defect about part, serial number of the 10th proposer of the petitioner he asked the petitioner to remove the defect granting him Patna High Court E.P. No.2 of 2009 dt.01-05-2012 35/63 sufficient time as also made available voter list which was asked for by the petitioner but when Returning Officer was confronted with the order sheet maintained by him during the conduction of the scrutiny process he had to concede/admit that he has not mentioned the specific part number of the voter list in his order sheet which was given to the petitioner.
17. Learned counsel for the petitioner with reference to paragraphs-25, 26, 61 of the cross examination of the Returning Officer submitted that Returning Officer admitted in the aforesaid paragraphs that considering the nature of defect in the nomination paper of the election petitioner he granted him half an hour as per his discretion which was inbuilt in the language used in Sub-Section-(5) of Section 36 of the Act for removal of defect in the nomination paper.
18. Learned counsel for the petitioner with reference to paragraph-27 of the cross-examination of the Returning Officer submitted that in the said paragraph he admitted that in case the defect is such which cannot be removed on the day of scrutiny, candidate is allowed time until next day of the date fixed for scrutiny for removal of defect.
19. Learned counsel for the petitioner further submitted that in paragraph-49 of the cross examination Returning Officer stated that process of scrutiny began at 11 A.M. and it continued till 4.30 P.M. and in paragraph-51 he admitted about the presence of the election petitioner when his nomination paper was taken up for scrutiny. In paragraph-56 he admitted that there is no endorsement of the Assistant Returning Officer on the nomination paper of the election petitioner that the same is defective or the election petitioner was verbally informed about the defect in the nomination paper by the Assistant Returning Officer who received his nomination paper.
20. Learned counsel for the petitioner with reference to Patna High Court E.P. No.2 of 2009 dt.01-05-2012 36/63 the different paragraphs of the cross examination of the Returning Officer referred to in paragraphs 14 to 19 of the written submission submitted that (A) There exist no document to indicate that while receiving the nomination paper of the election petitioner Assistant Returning Officer noticed the defect in serial, part number of the 10 th proposer of the election petitioner and informed him about the same even verbally. (B) That video cassette of the presentation process does not support the statement of the official witnesses (C) That at the time of scrutiny also neither sufficient time was granted to the petitioner nor the voter list of the desired booth numbers were made available to the petitioner as specifically stated in paragraph no.15 of the election petition. (D) That there is no denial of the specific statement made in paragraph-15 and 16 of the election petition and there is no documentary evidence to support that petitioner was given the voter list of booth nos.17, 18 and 19. (E) That the video cassette of the scrutiny process also does not support the version of the Returning Officer as deposed by him in Court.
21. That with reference to the statement made by the Returning Officer in paragraphs-72, 73 of his cross examination it is submitted that in compliance of the direction of the Election Commission of India important events of the election process, namely, presentation of nomination and scrutiny were videographed and with reference to the video cassette it is submitted that the very crucial evidence which is in the form of the video cassette should have clinched the issue raised by the petitioner but is missing from the video cassette and hence transparency which was directed to be maintained was completely lost in conducting the impugned election. In this connection, it is also submitted that the starting time of the second disc is 2 P.M. recording programme until 5 P.M., but when it was displayed it could run for one hour and it does not reflect the procedure of scrutiny of nomination paper of the petitioner and in Patna High Court E.P. No.2 of 2009 dt.01-05-2012 37/63 appreciation of such fact it is submitted that this Court should presume that events regarding the scrutiny of nomination paper of the petitioner was deliberately omitted from the disc before it was transmitted to this Court.
22. Learned counsel for the petitioner submitted that object of Sub-Section-(4) of Section 33 of the Act and its proviso is very clear that no sooner a nomination paper is presented before the Returning/Assistant Returning Officer, the Officer receiving the nomination paper is required to look into the nomination paper to satisfy himself that in the nomination paper name and electoral roll numbers of the candidate, proposers as entered in the nomination paper are the same as those entered in the electoral roll and the nomination paper is free from inaccurate description or clerical, technical or printing error. The word inaccurate description used in the proviso, therefore, would take within its sweep any inaccurate description or error in the nomination paper which should either be rectified at the time of presentation of the nomination paper or overlooked at the time of scrutiny. Learned counsel for the petitioner further submitted that the intention of the Legislature is that if a nomination paper passed the test of scrutiny at the time of its presentation the same cannot be rejected at the time of scrutiny.
23. Learned counsel for the petitioner next submitted that Section-36 of the Act provides for scrutiny of nomination paper by the Returning Officer on the date fixed and proviso to Sub-Section-(5) of Section 36 provides that in case, objection is raised by the Returning Officer or is made by any other person the candidate concerned may be allowed time to rebut the objection not later than the next day but one following the date fixed for scrutiny and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. Learned counsel for the petitioner further clarified that conjoint reading of Sub-Sections-(4), (5) of Section 36 with Sub- Patna High Court E.P. No.2 of 2009 dt.01-05-2012 38/63 Section-(4) of Section 33 and its proviso provide that Returning Officer should not reject any nomination paper for a defect which can be removed or cured within the time granted to cure the defect under proviso to Sub-Section-(5) of Section 36 of the Act. According to the learned counsel Sub-Section-(4) of Section 36 require the Returning Officer not to reject a nomination paper for a defect which is not of a substantial character. In the light of the aforesaid provisions, it is submitted that case of the petitioner as pleaded in the election petition and duly substantiated in evidence is that at the time of presentation of the nomination paper by the petitioner no defect in the nomination paper was pointed out by the Assistant Returning Officer who received the nomination paper. The Returning Officer, however, pointed out the defect at the time of scrutiny, whereafter petitioner requested the Returning Officer for supply of voter list of part nos.17, 18, 19 of 165-Munger(General) Assembly Constituency but the Returning Officer gave the petitioner voter list of part nos.17, 19, although, petitioner repeatedly asked for voter list of part no.18 which was not given. Petitioner then begged for time until the next date but the Returning Officer granted 15 minutes, whereafter petitioner rushed to the District election office to find out the correct serial, part number of the 10th proposer. Petitioner having found the correct serial, part number of the 10th proposer came back to the place of scrutiny, the Returning Officer was still engaged in the scrutiny of nomination paper of other candidates. Petitioner informed the Returning Officer that he has been able to locate the correct part number of the 10th proposer but Returning Officer replied that he has already rejected his nomination paper and advised him to try his luck in the next election.
24. Learned counsel for the election petitioner further submitted that Chapter-V of the instructions of the Election Commission of India contained in the hand book for the Returning Officer deals with nomination paper. Paragraph-16.1 of the Handbook Patna High Court E.P. No.2 of 2009 dt.01-05-2012 39/63 required the Returning Officer or the specified Assistant Returning Officer to compare the entries mentioned in the nomination paper with the entries made in the electoral roll relating to serial number, part number of the candidate and his proposers. Paragraph-17.1 of the said Handbook required the Returning Officer to permit correction of inaccurate description of the electoral roll number of the candidate and the proposer(s) at the time of scrutiny. Paragraph no.17.2 of the said Handbook states that it will be undesirable for the Returning Officer to reject the nomination paper at the time of its scrutiny for a defect which could have been cured at the earlier stage of presentation of the nomination paper. In the light of the contents of the handbook, it is submitted that as per the provisions of the Act it was also the intention of the Election Commission of India that clerical defects in the nomination paper should be cured at the time of presentation itself so that no nomination could be rejected for technical defects at the time of scrutiny.
25. Learned counsel further submitted that proviso to Sub-Section-(5) of Section 36 of the Act does vest in the Returning Officer power to postpone the process of scrutiny for removal of defect until the next day but one following the date fixed for scrutiny. In this connection, it is further submitted that the intention behind the provisions of the Act and the instructions in the handbook is that no nomination paper should be rejected for a technical defect and in the light of the said provisions the nomination paper of the petitioner was not liable for rejection as petitioner was present at the place of scrutiny and was ready to remove the defects.
26. It is further submitted that petitioner was present at the place of scrutiny until the process was closed and requested the Returning Officer times without number that he be permitted to remove the defect, which was not granted. He then prepared an application at the place of scrutiny itself and made attempt to get it Patna High Court E.P. No.2 of 2009 dt.01-05-2012 40/63 filed before the Returning Officer during the course of scrutiny but the Returning Officer refused to receive the application (Annexure-3). After the process of scrutiny was over election petitioner came outside the place of scrutiny and sent his representation to the Returning Officer through fax on the date of scrutiny itself, Annexure-5 annexing the relevant part of the Act. Exhibit-8 is the fax receipt by which it was transmitted to the Returning Officer. It is further submitted that even on 12.4.2009 petitioner sent further application dated 12.4.2009, Exhibit-9 to the Returning Officer indicating details of his earlier application dated 11.4.2009 annexing the photostat copy of the voter list of part no.18 of 165-Munger(General) Assembly Constituency wherein name of his 10th proposer was mentioned at serial no.1175 under fax receipt, Annexure-7/1 of the election petition. It is also submitted that on 13.4.2009 as well petitioner submitted representation, Annexure-10 to the Returning Officer giving reference to his earlier application dated 11, 12.4.2009 but the Returning Officer never considered the request.
27. Learned counsel for the petitioner further submitted that under letter dated 10.2.2009 Election Commission of India issued instructions for observing full transparency in the process of presentation, scrutiny of the nomination paper so as to prevent cases of mischief by directing videograph of the entire process of presentation, scrutiny of nomination paper. It is submitted that in the case in hand the statements made by the Returning Officer in his evidence does not find support from the video cassette, as such, transparency at the level of the Returning Officer in the instant case was completely lost.
28. In the background of the aforesaid submissions, it is submitted that while receiving and during scrutiny of the nomination paper of the petitioner Returning/Assistant Returning Officer did not discharge their duties in accordance with the provisions of the Act. Patna High Court E.P. No.2 of 2009 dt.01-05-2012 41/63 They did not conduct themselves in the manner in which they are required to conduct themselves while receiving and conducting scrutiny of the nomination paper of the petitioner and Returning Officer rejected the nomination paper of the petitioner improperly in arbitrary manner without providing the petitioner assistance and sufficient time to remove the technical defect found in the nomination paper. In the circumstances, the election of the sole respondent is fit to be set aside under Sub-Section-(1C) to Section 100 of the Act.
29. In support of the plea that defect in serial, part number of one of the proposers in the nomination paper of the election petitioner is not substantial in character and the nomination paper should not have been rejected for such defect learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court in the case of Viveka Nand Giri Vs. Nawal Kishore Sahi, reported in A.I.R. 1984 Supreme Court 856 and submitted that Hon'ble Supreme Court dismissed the appeal of the returned candidate Sri Viveka Nand Giri whose election was set aside by the High Court holding that nomination paper of Ram Kumar Jha was improperly rejected by the Returning Officer. In this connection, he pointed out from paragraph-6 of the judgment in the case of Viveka Nand Giri(supra) that Ram Kumar Jha had filed four sets of nomination paper numbered as 39 to 42. The proposer in the nomination paper no.39 was one Nand Lal Sah while the proposer in nomination paper no.40 was one Ganesh Prasad Gaur. Proposer in the nomination paper nos. 41 and 42 was Ram Kumar Jha's own brother Birendra Kumar Jha. Ram Kumar Jha mentioned his serial, part number as 415 and 13 respectively in the nomination paper no.39, as 391 and 17 in nomination paper no.40, as 324 and 14 in nomination paper no.41 and as 326 and 14 in nomination paper no.42. The Returning Officer rejected the nomination paper no.39 on the ground that serial, part number of the candidate was wrong with reference to Patna High Court E.P. No.2 of 2009 dt.01-05-2012 42/63 the electoral roll, Exhibit-4, nomination paper no.40 on the ground that serial, part number of the candidate was wrong and the age of the candidate was not mentioned, nomination paper no.41 on the ground that serial number of the candidate was wrong and nomination paper no.42 on the ground that there was difference in the age of candidate. Ram Kumar Jha declared in his nomination paper no.42 in reference whereto argument was made before the Hon'ble Supreme Court that he has completed 33 years of age but in the electoral roll, Exhibit-4 his age is mentioned as 37 years. On consideration of the evidence available on record High court found that no nomination paper could be rejected unless the defect is of substantial character and that the difference in the age of the candidate as given in the electoral roll and the nomination paper is not material error and no opportunity was given to Ram Kumar Jha to remove the defect. High Court and the Hon'ble Supreme Court did not approve of the rejection of the nomination paper no.42 of Ram Kumar Jha observing that difference in age of the candidate as entered in the electoral roll and the nomination paper would fall under the category of inaccurate discrepancy mentioned in proviso to Sub-Section-(4) of Section-33 of the Act and that it was obligatory on the part of Returning Officer to have it corrected or to overlook it having regard to the language of the proviso as Ram Kumar Jha having completed 33 years of age was qualified to contest the election being above the minimum age required for contesting election to the State Legislature.
30. Another case relied upon by the learned counsel for the petitioner is of Ram Awadesh Singh Vs. Sumitra Devi, reported in A.I.R. 1972 Supreme Court 580. Ram Awadesh Singh the appellant before the Hon'ble Supreme Court was a candidate seeking election from Ara Assembly Constituency and was registered as elector from both Ara and Sandesh Assembly Constituency. He filed his nomination paper as elector of Ara Assembly Constituency without Patna High Court E.P. No.2 of 2009 dt.01-05-2012 43/63 enclosing the certified copy of the electoral roll as he was contesting from same Constituency. His nomination paper was accepted and after the poll he was declared elected by the Returning Officer. Election petition was filed in the High Court by the respondent challenging the election of the appellant on the ground that his nomination paper was improperly accepted by the Returning Officer as on the date of filing of his nomination paper appellant was not elector in Ara Assembly Constituency and the appellant had not enclosed the certified copy of the voter list of Sandesh Assembly Constituency with his nomination paper. Election of the appellant was set aside by the High Court. Hon'ble Supreme Court while reversing the judgment of the High Court in paragraph-4 of the judgment framed the questions which arose for consideration by the Hon'ble Court and observed in paragraph-6 that on the date of filing of the nomination paper by the appellant for Ara Assembly Constituency he learnt that his name is included as elector in the electoral roll of Ara Assembly Constituency and filed nomination paper as elector of Ara Assembly Constituency. Name of the appellant was later deleted as elector from Ara Assembly Constituency by supplementary list. Appellant and the Returning Officer both were not aware about the deletion of the name of the appellant as elector from the electoral roll of Ara Assembly Constituency. After verifying the name of the appellant and his electoral roll number as indicated in the electoral roll of Ara Constituency and also the name of his proposer the Returning Officer received the nomination paper filed by the appellant. At the time of scrutiny no one objected to the nomination of the appellant. The Returning Officer accepted his nomination as valid nomination. The objection to the acceptance of the nomination of the appellant was put forward for the first time in the election petition. Having considered the aforesaid facts of the case in paragraph-24 of the judgment Hon'ble Supreme Court observed that defect in the Patna High Court E.P. No.2 of 2009 dt.01-05-2012 44/63 nomination paper of the appellant was not of substantial character and allowed the appeal upholding the election of the appellant.
31. Learned counsel for the petitioner also relied upon the judgment of this Court in the case of Abhay Kumar Singh Vs. Balram Singh Yadav @ Balram Singh, reported in 2009(1) PLJR 806. In the said case election of Balram Singh Yadav was challenged on the ground that nomination paper of election petitioner was improperly rejected by the Returning Officer. Election for Bihar Legislative Council from local authority constituency was notified and candidate was required to file his nomination paper on the basis of voter list published on 1.1.2002. Election petitioner filed his nomination paper enclosing photo copy of voter list of 1995. At the time of presentation of nomination paper he was served with the memo by the Returning officer to file the voter list of 2002. On the date of scrutiny no body appeared to attend the scrutiny process on behalf of appellant nor he removed the defect as pointed out in the memo served on him at the time of presentation of his nomination paper pointing out the defect. The nomination paper was, accordingly, rejected. This Court relying upon the judgment of the Hon'ble Supreme Court in the case of Ram Awadesh Singh and Viveka Nand Giri set aside the election of Balram Singh Yadav holding that there was no cogent or legal reason for rejecting the nomination paper of the election petitioner.
32. Learned counsel for the election petitioner also relied on the judgment of the Hon'ble Single Judge of this Court in the case of Rameshwar Prasad Yadav Vs. Sri Awadhesh Kumar Singh, reported in 2007(3) PLJR 427 whereunder election petition of Rameshwar Prasad Yadav was dismissed holding that the Returning Officer had power to review his order by which he had earlier rejected the nomination paper of Sri Binod Kumar Yadvendu. Election petitioner filed his nomination paper as official candidate of Janta Dal Patna High Court E.P. No.2 of 2009 dt.01-05-2012 45/63 United political party annexing letter of the authorized person of the said political party allotting him symbol of Janta Dal United political party. Subsequently, Sri Binod Kumar Yadvendu also filed his nomination paper as official candidate of Janta Dal United political party annexing letter of authorized person allotting him party symbol without intimation to the Returning Officer in form 'B' the cancellation of the earlier allotment of symbol to the petitioner. On the date of scrutiny the Returning Officer accepted the nomination paper of the petitioner and rejected the nomination paper of Sri Yadvendu. Later, Returning Officer issued letter for fresh scrutiny of nomination paper of both petitioner and Sri Yadvendu and after fresh scrutiny nomination paper of Sri Yadvendu was accepted rejecting the nomination paper of the election petitioner. Dismissing the election petition this Court held that there is no illegality in the order by which nomination paper of Sri Yadvendu was accepted and that of the petitioner rejected. Learned counsel for the election petitioner with reference to the aforesaid judgment of this Court in the case of Rameshwar Prasad Yadav(supra) submitted that as this Court has acknowledged the power of the Returning Officer to review the order accepting/rejecting the nomination paper, the Returning Officer in the case of the petitioner should also have reviewed the earlier order of rejection of the nomination paper of the petitioner no sooner petitioner arrived with correct part number of his 10th proposer as the process of scrutiny was still on. The Returning Officer by not accepting the nomination paper of the petitioner even after he discovered the correct part number of his 10th proposer acted in arbitrary manner and the rejection of the nomination paper of the election petitioner has to be declared as improper by this Court.
33. Learned counsel for the petitioner also relied on the judgment in the case of Mohd. Yunus Khan Vs. State of Uttar Pradesh and Others, reported in (2010) 10 Supreme Court Cases 539 and Patna High Court E.P. No.2 of 2009 dt.01-05-2012 46/63 submitted that Hon'ble Supreme Court has held that arbitrariness in the action of the constitutional, statutory authorities is an anathema to the principles of reasonableness and fairness, which is enshrined in constitutional, statutory provisions. The Rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. The actions of statutory authorities should be guided by the principles of reasonableness and fairness. The authority cannot be permitted to abuse the law or to use it in unfair manner. According to the learned counsel for the petitioner in the present case the Returning Officer has not only abused the law by acting unfairly but his action can never be said to be reasonable and fair and in any view of the matter the rejection of the nomination paper of the petitioner by the Returning Officer cannot be upheld as the defect for which nomination paper of the petitioner was rejected is not a defect of substantial character as categorically held in the judgment of the Hon'ble Supreme Court in the case of Ram Awadhesh Singh and Viveka Nand Giri(supra).
34. Learned counsel for the sole respondent submitted that entire allegations as contained in the election petition are too vague inasmuch as not containing material facts besides being incorrect, false and contrary to law and does not disclose a triable issue, rather the whole election petition is fit to be dismissed summarily. The solitary allegation though wrong and false is the improper rejection of the nomination paper of the election petitioner. The sole respondent has specifically denied the aforesaid allegation in his written statement vide paragraphs-5, 7, 8, 10 to 13, 15, 16, 19 to 22, 25 to 28, 31 to 33, 38 to 41, 45 and 49. The entire examination in chief of the election petitioner is contrary to the document available before the Returning Officer and also contrary to law. The election petitioner in his entire evidence has not stated that during the scrutiny of his nomination paper he filed any written petition before the Patna High Court E.P. No.2 of 2009 dt.01-05-2012 47/63 Returning Officer to adjourn the scrutiny of his nomination paper for the next day. His entire evidence coupled with the order sheet maintained during the scrutiny of the nomination paper of the petitioner indicate that petitioner asked for half an hour time from the Returning Officer which was granted but during the time allowed election petitioner did not turn up before the Returning Officer to clarify the correct serial, part number of his 10 th proposer and the Returning Officer had no alternative but to reject the nomination paper of the election petitioner. The election petitioner in his evidence stated regarding filing of petition before the Returning Officer, Chief Electoral Officer, Bihar, Patna and the Election Commission of India but all such petitions were filed after the scrutiny of his nomination paper and for the purpose of election petition. In the light of the aforesaid fact, it is submitted that settled principle of law is that Returning Officer has no power to review the order rejecting/accepting the nomination paper as he becomes functus officio after he has passed order rejecting nomination paper of the petitioner.
35. Learned counsel for the respondent also submitted that P.W.-2 Sri Ram Badan Rai one of the contesting candidate examined on behalf of the election petitioner was also the candidate for the impugned election and his nomination paper was accepted by the Returning Officer much before the scrutiny of the nomination paper of the election petitioner but P.W.-2 claimed that he was present before the Returning Officer at the time of scrutiny of the nomination paper of the election petitioner. P.W.-2 stated in his examination in chief that election petitioner requested the Returning Officer to grant him half an hour for removal of defect and the Returning Officer granted him half an hour to rectify the mistake in serial, part number of his 10th proposer. It is submitted that the election petitioner did not rectify the mistake in description of serial, part number of his 10th Patna High Court E.P. No.2 of 2009 dt.01-05-2012 48/63 proposer within the time granted by the Returning Officer for removing the defect, as such, the Returning Officer had no option but to reject the nomination paper of the election petitioner.
36. Learned counsel for the sole respondent with reference to paragraph-6 of the examination in chief of the Assistant Returning Officer submitted that election petitioner presented his nomination paper on the last date fixed for presentation of nomination paper. Assistant Returning Officer in paragraph-7 of his examination in chief stated that serial, part number of one of the proposer of the election petitioner as mentioned by him in his nomination paper did not match with the entries made in the electoral roll. Assistant Returning Officer further stated that when he pointed out such mistake to the election petitioner he did not take any interest to correct the mistake. Assistant Returning Officer further stated that he had informed the Returning Officer about the defect noticed by him in the nomination paper of the election petitioner as also his lack of interest in removing the defect. Assistant Returning Officer further stated that on 11.4.2009 he was present during the process of scrutiny of the nomination paper by the Returning Officer and the defect in the nomination paper of the election petitioner was pointed out by the Returning Officer to the election petitioner, whereafter election petitioner asked the Returning Officer to grant half an hour to remove the defect, which was allowed by the Returning Officer to the election petitioner. The Assistant Returning Officer also stated in his examination in chief that election petitioner was provided with voter lists which were asked for by him during scrutiny of his nomination paper. The Assistant Returning Officer further stated that the voter list of all the assembly segments comprising the Parliamentary Constituency was available in the hall where scrutiny of the nomination paper was going on. Assistant Returning Officer specifically stated in his examination in chief that after passage of half Patna High Court E.P. No.2 of 2009 dt.01-05-2012 49/63 an hour asked for by the election petitioner and his inability to remove the defect found in the nomination paper the Returning Officer had no option but to reject the nomination paper of the election petitioner. The Assistant Returning Officer further stated in his examination in chief that Sri Ram Badan Rai was not present at the time of scrutiny of the nomination paper of the election petitioner.
37. Learned counsel for the sole respondent with reference to paragraph-4 of the examination in chief of Returning Officer submitted that Returning Officer categorically stated that during scrutiny of the nomination paper of the election petitioner who filed his nomination paper as an independent candidate he noticed that serial, part number of one of the proposers of the election petitioner Sri Shailesh Kumar as mentioned in the nomination paper of the election petitioner could not be located in the electoral roll, whereafter Returning Officer pointed out the said substantial defect to the election petitioner who asked for half an hour for removal of defect as also relevant part of the voter list, which was given to the election petitioner. In spite of adequate opportunity granted to the election petitioner to remove the defect he could not locate the name of his 10 th proposer in the relevant part of the voter list within the time asked for by the election petitioner and granted by the Returning Officer, as such, for failure of the election petitioner to remove the substantial defect in his nomination paper Returning Officer had no option but to reject his nomination paper.
38. Learned counsel for the sole respondent further submitted that Returning Officer was cross-examined on behalf of election petitioner at great length for three days, i.e. 29.11.2010, 30.11.2010 and 6.12.2010 but he could not be shaken and thereby from the evidence of the Returning Officer it is proved beyond reasonable doubt that the nomination paper of the election petitioner was rejected as he could not remove the defect in his nomination Patna High Court E.P. No.2 of 2009 dt.01-05-2012 50/63 paper regarding his 10th proposer in spite of adequate opportunity granted to him to remove the defect.
39. Learned counsel further submitted that from the evidence of the Returning Officer it is established that all the voter list which were asked for by the election petitioner from the Returning Officer were given to the election petitioner by the Returning Officer but the nomination paper of the election petitioner was rejected for his failure to remove the defect in the nomination paper.
40. Learned counsel for the sole respondent further submitted that order dated 11.4.2009 passed by the Returning Officer rejecting the nomination paper of the election petitioner is correct as it is the order passed by the Returning Officer in discharge of official duty and there is presumption about the correctness of the official act under Section 114 of the Evidence Act unless proved to the contrary. In the instant case, according to the learned counsel for the sole respondent election petitioner has miserably failed to prove that the contents of the order dated 11.4.2009 rejecting his nomination paper is incorrect.
41. Learned counsel for the sole respondent with reference to Sub-Section-(5) of Section 36 of the Act submitted that as the election petitioner failed to remove the defect in his nomination paper regarding serial, part number of his 10th proposer within the time granted by the Returning Officer, Returning Officer had no option but to reject his nomination paper.
42. Learned counsel for the respondent in this connection, relied on the judgment of the Hon'ble Supreme Court in the case of Brij Mohan Vs. Sat Pal, reported in A.I.R. 1985 Supreme Court 847 and submitted that Sat Pal an elector of the Jind Assembly Constituency filed election petition that Dog Ram was registered as an elector at serial no.177 in part 39 of the electoral roll of Jind Constituency. Ram Pratap who proposed Dog Ram as candidate was Patna High Court E.P. No.2 of 2009 dt.01-05-2012 51/63 registered as elector at serial number 313 in part 39 of the same constituency. In the nomination paper name and address of Dog Ram was correctly mentioned but there was mistake in part number as for 39, 57 was mentioned due to inadvertence committed by the person who filled up nomination paper. Similarly in the case of proposer Ram Pratap the serial number of the elector and the number of constituency were given correctly but the number of his house was wrongly entered in the column meant for the part number of the electoral roll. These mistakes in the nomination paper were technical in nature and should have been corrected by the Returning Officer at the time of scrutiny. No other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram but the Returning Officer on his own rejected the nomination paper stating that particulars of the candidate and the proposer have been wrongly entered in the nomination paper and the candidate who was present at the time of scrutiny failed to produce the voter list showing particulars as entered in the nomination paper under consideration. Election of the returned candidate Brij Mohan was challenged by an elector on the ground that defects in the nomination paper of Dog Ram were technical in nature and should have been rectified by the Returning Officer at the time of scrutiny. High Court accepted the aforesaid submission and set aside the election of the returned candidate Brij Mohan on the ground that the nomination paper of Dog Ram was improperly rejected by the Returning Officer. Returned candidate filed appeal in the Hon'ble Supreme Court and the Hon'ble Supreme Court reversed the judgment of the High Court holding that nomination paper of Dogram was properly rejected as there was defect in the serial, part numbers of the candidate and the proposer in the nomination paper, their names could not be traced in the concerned parts as registered electors. According to the Hon'ble Supreme Court the Returning Officer, therefore, was helpless and Patna High Court E.P. No.2 of 2009 dt.01-05-2012 52/63 asked the candidate Dog Ram to point out the names of self and his proposer in the electoral roll, which Dog Ram failed to point out. It is submitted by the learned counsel for the sole respondent that while upholding the rejection of the nomination paper of Dog Ram the Hon'ble Supreme Court distinguished the judgment of the Supreme Court in the case of Ram Awadhesh Singh and Viveka Nand Giri(Supra) in paragraphs-23, 24 of the said judgment heavily relied upon by the election petitioner.
43. Learned counsel for the sole respondent further relied on the judgment of the Hon'ble Supreme Court in the case of Lila Krishan Vs. Maniram Godara and Ors., reported in A.I.R. 1985 Supreme Court 1073 in which same point was involved as the serial number of the voter list of the proposer of the two candidates, namely, Maniram Chapola and Raj Tilak did not tally with the serial number mentioned in the electoral roll. The proposer of Maniram Chapola was one Brij Bhushan while the proposer of one Raj Tilak was one Upendra Kumar. Brij Bhushan and Upendra Kumar as indicated in the electoral roll was at serial no. 26 and 77 respectively. These numbers have been correctly indicated in form 3A but in the nomination paper the serial numbers have been shown as 126 and 177 respectively. The discrepancy has arisen on account of appearance of the figure '1' before the correct number. When scrutiny was taken up Maniram Chapola and Raj Tilak were not present before the Returning Officer. Similarly proposers Brij Bhushan and Upendra Kumar were also absent. The High Court took the view that it was the obligation of the Returning Officer to verify the electoral roll and to find out the serial number, the mistake if any was not of substantial character so as to expose the nomination paper to rejection and the rejection on such a ground was improper and set aside the election of the returned candidate. Hon'ble Supreme Court, however, reversed the judgment holding that to cast obligation on the Returning Officer to look Patna High Court E.P. No.2 of 2009 dt.01-05-2012 53/63 through the entire electoral roll of a particular part with a view to find out the identity of the proposer is not the requirement of law to read such obligation on the part of Returning Officer is likely to lead to an unworkable position. In one part of the electoral roll on the average names of about a thousand voters appeared. Out of thousand names it is quite possible that there would be more than one voter by the same name. Identification of any particular voter out of such list even when there are more voters with the same name is possible only with further reference to the father's name. To cast obligation of verifying the entire electoral roll of a particular part is actually requiring the Returning Officer to do almost an impossible feet. No one was available when the nomination paper of Maniram Chapola and Raj Tilak was taken up for scrutiny to indicate that the serial number of their proposer Brij Bhushan and Upendra Kumar was 26 and 77 and not 126 and 177, as is appearing in the nomination paper and the Hon'ble Supreme Court considering the import of the provisions of Sub-Section-(4) of Section 33 and Sub-Section-(1) to (4) of Section 36 of the Act reversed the judgment of the High Court and held that the nomination paper of Maniram Chapola and Raj Tilak was rightly rejected as incorrect serial number of their proposer was indicated in the nomination paper, which was not even corrected at the time of the scrutiny as none was available to correct the defect.
44. Learned counsel for the sole respondent also relied on the judgment of the Hon'ble Supreme Court in the case of Bhogendra Jha Vs. Manoj Kumar Jha, reported in A.I.R. 1996 Supreme Court 2099. In the said case serial, part number of one of the proposers of Manoj Kumar Jha was wrongly mentioned in the nomination paper which was not corrected by the candidate or his proposer at the time of scrutiny of nomination paper and the Returning Officer had no option but to reject the nomination paper of Manoj Kumar Jha. Patna High Court set aside the election of the returned candidate Bhogendra Patna High Court E.P. No.2 of 2009 dt.01-05-2012 54/63 Jha at the instance of Manoj Kumar Jha. Hon'ble Supreme Court, however, reversed the judgment of the Patna High Court holding that nomination paper of Manoj Kumar Jha was properly rejected as it was not the duty of the Returning Officer to make a roving and fishing enquiry to find out the serial, part number of the proposer which was the duty of the candidate/proposer to furnish correct serial, part number in the nomination paper.
45. Learned counsel for the sole respondent distinguished the judgment of this Court rendered in the case of Abhay Kumar Singh(supra) and submitted that nomination paper of Abhay Kumar Singh was rejected by the Returning Officer on the sole ground that he filed the voter list of the year 1995 and not of the year 2001, although he was voter from Raghopur Assembly Constituency, which was part of the local body constituency, as such, he was not required to have filed voter list of the year 2001.
46. Having considered the rival pleadings, evidence led on behalf of the parties and the submissions noted above as also the deposition of the Assistant Returning Officer, R.W.-2 who received the nomination paper of the election petitioner on 9.4.2009 at 2.48 P.M., it is evident that there was defect in the nomination paper of the election petitioner as serial, part number of his 10 th proposer as mentioned in the nomination paper did not match with the concerned electoral roll and information to that effect was verbally conveyed by the Assistant Returning Officer to the election petitioner but he did not take any steps to remove the defect on the date of presentation of the nomination paper, which has been stated by the Assistant Returning Officer, R.W.-2 in paragraphs-6, 7 of his deposition. True it is that R.W.-2 did not furnish written information about the defect to the election petitioner by serving a memo indicating the defect noticed in the nomination paper. Submission made on behalf of the election petitioner that by not furnishing written memo indicating the defect Patna High Court E.P. No.2 of 2009 dt.01-05-2012 55/63 noticed in the nomination paper of the election petitioner along with receipts, check slip dated 9.4.2009, Annexures-1, 1/1 and 2 the Assistant Returning Officer, R.W.-2 violated Sub-Section-(4) of Section 33 of the Act is wholly misconceived as Sub-Section-(4) of Section 33 of the Act only require the officer receiving nomination paper to satisfy himself about 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 roll. In the instant case, the Assistant Returning Officer, R.W.-2 having received the nomination paper of the election petitioner passed on the nomination paper to the Assistants present to assist him for verification of the entries made in the nomination paper. Assistants having noticed the defect in the nomination paper of the petitioner brought the defect to the notice of the Assistant Returning Officer, R.W.-2 who in turn verbally informed the petitioner about the defect and thereby Sub-Section-(4) of Section 33 of the Act was complied with by the Assistant Returning Officer, R.W.-2. The receipts, Annexures-1, 1/1 were issued in token of having received the nomination paper of the petitioner with further information that he has to appear for scrutiny of his nomination paper at the time and date indicated in the receipt. Check list, Annexure-2 was issued informing the petitioner that the documents required to be filed along with the nomination paper have been filed with the nomination paper. Receipt/notice fixing the date and time for scrutiny of the nomination paper and the check slip showing receipt of the documents has nothing to do with the defects noticed by the Assistant Returning Officer, R.W.-2 at the time of receipt of the nomination paper, which is required to be communicated to the candidate concerned either verbally or through a written memo. In the instant case, defect having been pointed out to the election petitioner verbally, election petitioner was given required notice for removal of the defect. Information about the defect noticed Patna High Court E.P. No.2 of 2009 dt.01-05-2012 56/63 by the Assistant Returning Officer in the nomination paper of the election petitioner on 9.4.2009 was also conveyed by the Assistant Returning Officer to the Returning Officer on 9.4.2009 who also confirmed that Assistant Returning Officer had informed him about the defect noticed in the nomination paper of the election petitioner. In the circumstances, I do not find any fault with the Assistant Returning Officer, R.W.-2 as he having received the nomination paper and having verified the defects through the Assistants present to assist him in receipt of nomination paper informed the election petitioner verbally about the defect found in his nomination paper that serial, part number of the 10th proposer as mentioned in the nomination paper did not match with the concerned electoral roll.
47. Scrutiny of the nomination paper of the election petitioner was taken up on 11.4.2009 at about 3 P.M. After going through the nomination paper of the election petitioner Returning Officer, R.W.-1 informed the petitioner that serial, part number of his 10th proposer Sri Shailesh Kumar does not match with the concerned part of the electoral roll, which information, however, surprised the petitioner and he informed the Returning Officer, R.W.-1 that no such information was ever given to him by the Assistant Returning Officer when he presented the nomination paper before him. Aforesaid case of the election petitioner that he learnt about the defect in his nomination paper for the first time on the date of scrutiny i.e. 11.04.2009 at about 3 P.M. through the Returning Officer R.W.-1 does not appear to be trustworthy as from the evidence of the Assistant Returning Officer, R.W.-2 it is quite evident that R.W.-2 not only informed the election petitioner about the defects in his nomination paper on 9.4.2009 the date of presentation of the nomination paper but also gave information about the defect in the nomination paper of the election petitioner to the Returning Officer, R.W.-1 on 9.4.2009 who also confirmed in his deposition that he was Patna High Court E.P. No.2 of 2009 dt.01-05-2012 57/63 duly informed by the Assistant Returning Officer on 9.4.2009 itself that verbal information about the defect in the nomination paper was given to the election petitioner.
48. The further case of the election petitioner that having learnt about the defects in the nomination paper for the first time from the Returning Officer, R.W.-1 on 11.4.2009 at about 3 P.M., he requested the Returning Officer, R.W.-1 to furnish the electoral roll of part nos.17 to 19 of 165-Munger(General) Assembly Constituency to enable him to find out the correct serial, part number of the 10th proposer and remove the defect in the nomination paper, the Returning Officer, R.W.-1 furnished electoral roll of part nos.17 and 19 to the election petitioner, despite repeated request of the petitioner, Returning Officer, R.W.-1 did not furnish electoral roll of part no.18, petitioner thereafter requested the Returning Officer, R.W.-1 to adjourn the scrutiny of his nomination paper for the next day, the Returning Officer, R.W.-1, however, granted the petitioner 15 minutes for removal of defect also does not appear to be trustworthy in view of the contents of paragraphs-16 to 21 of the election petition whereunder election petitioner stated that his request for adjourning the scrutiny of his nomination paper to the following day was not considered, he was granted 15 minutes to remove the defect, having ascertained the correct part number of the 10 th proposer election petitioner returned back to remove the defect within half an hour while scrutiny of the nomination paper of others was still on and the contents of paragraphs-9 to 14 of the examination in chief of the election petitioner where election petitioner with intent to improve his case stated that his request to adjourn the scrutiny of his nomination paper to the following day was not considered the Returning Officer made up his mind to reject his nomination paper without providing the petitioner opportunity to remove the defect in the nomination paper, the petitioner had no option but to request the Returning Officer to Patna High Court E.P. No.2 of 2009 dt.01-05-2012 58/63 grant half an hour for removal of defect but the Returning Officer granted the petitioner 15 minutes to remove the defect in the nomination paper. It would thus appear that as per election petition petitioner requested the Returning Officer, R.W.-1 to adjourn the scrutiny of his nomination paper by following day but the Returning Officer granted him 15 minutes to remove the defect, whereas from his examination in chief it appears that when request of the petitioner for adjourning the scrutiny proceeding to the following day was not considered and Returning Officer made up his mind to reject the nomination paper petitioner asked for half an hour to remove the defect but the Returning Officer granted the petitioner 15 minutes for removal of defect in his nomination paper. There is variance in the case of the election petitioner as stated in the election petition and examination in chief. As per election petition, election petitioner asked for adjournment of the scrutiny to the following day but Returning Officer granted 15 minutes for removal of defect. As per examination in chief election petitioner asked for adjournment of scrutiny to following day but the Returning Officer looked adamant to reject the nomination paper without providing any opportunity to remove the defect then petitioner asked for half an hour for removal of defect in the nomination paper but the Returning Officer granted the election petitioner 15 minutes to remove the defect. Aforenoted departure with intent to improve the case of the election petitioner creates further doubt about the further case of the election petitioner that having ascertained the correct part number of the 10 th proposer the election petitioner came back within half an hour/20-25 minutes to remove the defect in his nomination paper and lends support to the version of the Returning/ Assistant Returning Officer that election petitioner did not come back to remove the defect in his nomination paper within the time granted for removal of defect in the nomination paper and the nomination paper of the election petitioner was rejected Patna High Court E.P. No.2 of 2009 dt.01-05-2012 59/63 no sooner time granted for removal of defect(half an hour) was over but the reasoned order rejecting the nomination paper was passed in presence of the petitioner. Aforesaid case of the election petitioner as stated in the election petition and examination in chief also does not find mentioned in the contemporaneous document, the application of the petitioner dated 11.04.2009, Annexure-3 addressed to the Returning Officer with copy to the Chief Electoral Officer, Bihar and the Chief Election Commissioner of India, New Delhi, in which petitioner has not stated that he learnt about the defects in his nomination paper for the first time on the date and time of scrutiny i.e. 11.04.2009 at about 3 P.M. through the Returning Officer and that he asked for voter list of part nos.17 to 19 for removal of defect in his nomination paper from the Returning Officer but the Returning Officer gave the petitioner copy of voter list of part nos.17 and 19 and not of part no.18, on failure of the Returning Officer to furnish voter list of part no.18, election petitioner sought adjournment of the scrutiny of his nomination to the following day/half an hour but the Returning Officer granted the election petitioner 15 minutes for removal of defect. Aforesaid case has been set out by the election petitioner for the first time in the election petition, paragraphs-16 to 21 and paragraphs 9 to 14 of the examination in chief of the election petitioner and not in the contemporaneous document, Annexure-3, in the circumstances, cannot be relied upon in view of paragraph-36 of the cross examination of the election petitioner where election petitioner admits that he was granted half an hour for removal of defect in the nomination paper. The fact that election petitioner was granted half an hour for removal of the defect by the Retuning Officer, R.W.-1 is also confirmed by Sri Ram Badan Rai, P.W. 2 another candidate as also by both the official witnesses, namely Returning Officer, R.W.-1 and Assistant Returning Officer, R.W.-2 but the defect was not removed within the time granted, in the Patna High Court E.P. No.2 of 2009 dt.01-05-2012 60/63 circumstances, I am satisfied that petitioner was allowed sufficient indulgence of half an hour by the Returning Officer to correct the serial, part number of his 10th proposer which was not corrected within the time granted and nomination paper of the petitioner was rejected in his presence as has been stated by Returning Officer, R.W.-1 in paragraphs-4 and 5 of his examination in chief.
49. The further case of the election petitioner that having found the correct serial, part number of his 10th proposer he returned to the place of scrutiny within 20-25 minutes and informed the Returning Officer that he has been able to find the correct serial, part number of his 10th proposer, but was not entertained by the Returning Officer, R.W.-1 also does not appear to be trustworthy in view of the fact that election petitioner did not state such fact in the contemporaneous document the application of the petitioner dated 11.04.2009, Annexure-3 and the evidence of the Returning, Assistant Returning Officer, R.W.-1, 2 that petitioner returned back to remove the defect noticed in his nomination paper after half an hour by the time his nomination paper was already rejected by the Returning Officer, R.W.-1 as he did not appear within half an hour, the time granted for removal of defect noticed in his nomination paper and the reasoned order rejecting the nomination paper of the petitioner was passed in his presence. The case of the election petitioner that he submitted application dated 11.4.2009, Annexure-3 soon after rejection of his nomination paper on 11.4.2009 also does not appear to be correct as according to the petitioner as per paragraph 17 of his examination in chief the Returning Officer, R.W. 1 refused to receive the application dated 11.4.2009 when the same was submitted before him soon after rejection of the nomination paper of the petitioner. Petitioner, however, did not send representation dated 11.4.2009 through fax to the Returning Officer immediately after refusal of the Returning Officer to receive the representation in view of the own Patna High Court E.P. No.2 of 2009 dt.01-05-2012 61/63 admission of the petitioner in paragraph-38 of his cross-examination that copy of representation dated 11.4.2009 was faxed by him to the Returning Officer on 11.4.2009 at 6.21 P.M. before which the scrutiny of the nomination paper of all the candidates was already over at 4.30 P.M. which is also confirmed by the Returning Officer in paragraph- 49 of his cross-examination.
50. The submission that defect noticed in the nomination paper of the petitioner should have been ignored in view of proviso to Sub-Section-(4) of Section 33, Sub-Section-(4) of Section 36 and proviso to Sub-Section-(5) of Section 36 of the Act is also misconceived as petitioner having been informed about the defect by the Assistant Returning Officer on 9.4.2009 as also by the Returning Officer on 11.04.2009 and granted sufficient indulgence of half an hour by the Returning Officer to remove the defect failed to remove the defect within the time granted. In the circumstances, Returning Officer had no option but to reject his nomination paper as in the absence of correct part, serial number of the 10th proposer of the election petitioner it was quite difficult for the Returning Officer to identify the 10th proposer of the election petitioner.
51. The submission that video cassette containing video pictures concerning presentation, scrutiny process of the nomination paper(s) did not reflect the defect regarding incorrect serial, part number of the 10th proposer of the petitioner being conveyed to the petitioner and sufficient indulgence being granted to the petitioner to remove the defect may put a question mark over the manner in which video pictures were taken by the videographer but Returning, Assistant Returning Officer cannot be held responsible if the videographer has not taken the video pictures of the entire proceeding in right earnest.
52. Reliance placed by the election petitioner over the judgment of the Hon'ble Supreme Court in the case of Ram Patna High Court E.P. No.2 of 2009 dt.01-05-2012 62/63 Awadhesh Singh and Viveka Nand Giri(supra) appears to be misconceived in view of law laid down in paragraphs-23, 24 by the Hon'ble Supreme Court in the case of Brij Mohan(supra) where the judgments relied upon by the counsel for the petitioner has been distinguished observing that the decisions will not apply to the facts of the present case where there is mistake in mentioning the serial, part number of the candidate and the proposer in the nomination paper as in spite of indulgence granted to the candidate of that case to remove the mistake in his nomination paper the mistake was not removed. In this connection, I may point out that the election of Viveka Nand Giri was set aside as one of the four nomination paper of Ram Kumar Jha bearing no.42 was found to have been improperly rejected on the ground of difference in age as mentioned in the nomination paper i.e. 33 years and in the electoral roll i.e. 37 years. Ram Kumar Jha having completed 33 years of age was qualified to contest the election being above the minimum age required for contesting the election to the State Legislature. In the circumstances, Court held that difference in age of the candidate as entered in the nomination paper and mentioned in electoral roll would fall under the category of inaccurate discrepancy mentioned in proviso to Sub-Section-(4) of Section 33 of the Act and it was obligatory on the part of Returning Officer to have it corrected or to overlook the same. In the case in hand, election petitioner was granted half an hour to correct the description of his 10th proposer in the nomination paper but during the time granted i.e. half an hour petitioner never returned to remove the defect and the Returning Officer rejected his nomination paper after passage of the time granted i.e. half an hour. Petitioner did appear with the correct part number of his 10th proposer after rejection of the nomination paper and requested the Returning Officer to permit him to correct the description of his 10th proposer. The Returning Officer, however did not permit such correction as by the time election petitioner returned Patna High Court E.P. No.2 of 2009 dt.01-05-2012 63/63 to correct the description of his 10th proposer, the Returning Officer had already rejected his nomination paper soon after the time granted for removal of defect i.e. half an hour was over but passed the reasoned order in presence of the election petitioner. Returning Officer having no power to review the order passed under Section 36 of the Act, I do not find any illegality in refusal of the Returning Officer to review his order rejecting the nomination paper of the election petitioner. In view of my discussion in paragraphs-46 to 52 above, I am satisfied that the nomination paper of the election petitioner for contesting the impugned election was properly rejected for his failure to remove the defect found in his nomination paper by the Assistant/Returning Officer within the time granted by the Returning Officer i.e. half an hour.
53. The election petition is, accordingly, dismissed.
(V.N. Sinha, J) Patna High Court, Patna Dated the 1st May, 2012 Rajesh/AFR