Patna High Court
Abhay Kumar Singh vs Balram Singh Yadav @ Balram Si on 19 September, 2008
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
ELECTION PETITION No.4 OF 2003
In the matter of an application under
sections 80,80A and 81of the Representation
of the People Act, 1951.
ABHAY KUMAR SINGH-------------------(Petitioner)
Versus
BALRAM SINGH YADAV @ BALRAM SINGH---(Respondent)
For The Petitioner M/s S.N.P.Sharma, Sr.Advocate
& Mr. A.K.Singh,Advocate
For The Respondent M/s.S.B.K Mangalam&Paras Nath
Advocates
---------
P R E S E N T
THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI
A.K.Tripathi,J. The present election petition has been filed by the
petitioner calling in question the election of the returned candidate,
namely Balram Singh Yadav @ Balram Singh as a member of the
Bihar Legislative Council from 20- Saharsha -cum-Medhepura -cum-
Supaul Local Authority Election Constituency. The prayer is for
declaring the election of the respondent to be illegal and void on the
ground of improper rejection of the nomination of the petitioner under
section 100 (1 ), ( c) of the Representation of People Act, 1951..
On 2.6. 2003 based on the communication and the
letter issued by the Election Commission of India election for 24
Local Authorities Constituency in the State of Bihar was announced.
The Collector, Saharsa was designated as the Retuning Officer for
Sharsa- cum- Madhupra- cum- Supaul Local Authorities Constituency
to fill up a vacancy for the Legislative Council from the said
Constituency. The election was announced on 2.6.2003, nomination
papers were to be filed upto 16.6.2003. The date of scrutiny of the
nomination papers was fixed on 24.6.2003 and the date of polling was
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fixed on 10.7.2003. The date for final declaration of the result was
14.7.2003.
Petitioner‟s case is that he had all the eligibility for
contesting the election aforesaid and decided to file his nomination.
Altogether 51 candidates filed their nomination papers including the
present petitioner. On 24.6.2003 the nomination papers of all the
candidates were scrutinized and all the nomination papers were
declared to be valid except the nomination of this petitioner. In
otherwords, out of 51 candidates the sole rejection of a nomination
paper was that of the petitioner.
Petitioner thereafter obtained a certified copy of the
order of rejection which was furnished to him on 26.6.2003. The order
in question has been brought on record along with the election petition
as annexure-1.
After going through the reasoning and verifying the
facts and on due declaration of result of the election declaring Balram
Singh Yadav as the successful candidate, the petitioner in his wisdom
decided to file the present election petition under the Representation
of People Act, 1951.
It is necessary to reproduce the reason for rejection of
the nomination paper (Ext. 2) of petitioner because not only the issues
have been formulated for deciding the election petition based on the
same but the final adjudication in the present election petition will
have to be rendered on the same
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The above reason for rejection has been extracted from
Ext. 1 which is the nomination paper of the petitioner.
Four issues therefore came to be framed which are
noted below:
(1) Whether this election petition, as
framed is maintainable?
(2) Whether this election petition is
vitiated by non-joinder of
necessary parties?
(3) Whether the nomination paper
of the petitioner was improperly
rejected by the Returning
Officer?
(4) Whether the petitioner is
entitled to any relief or reliefs?
Of the above four issues the primary issue for
consideration is Issue No.3 relating to improper rejection and the
consequential relief in terms of Issue No.4.
Learned Senior counsel appearing on behalf of the
petitioner submits that the improper rejection of the nomination paper
is a valid ground for setting aside the election in terms of Section 100
(1) ( c) of the Representation of the People Act 1951 and that is the
primary relief which the petitioner is looking for. He starts with the
definition of the word "Constituency" which is contained in section 2
(b), (c ) and (f ) of the 1950 Act. Reading of the above provisions
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would show that there are different definitions and territorial
boundaries for different "Constituencies". Since the election in the
present case was to the Legislative Council under the Local Authority
Constituency it includes 14 Assembly Constituencies within what is
known as Bihar Legislative Council Constituency No.20 of Saharsa-
cum- Madhepura- cum- Supaul (hereinafter referred to as the
Constituency).
Submission is now made with regard to the conditions
contained in section 33 (5) of Representation of People Act 1951.
Section 33(5) of the Representation of the People Act, 1951 is
reproduced herein below for ready reference:
Section 33(5):- "Where the candidate is an elector
of a different constituency, a copy of the electoral roll of that
constituency or of the relevant part thereof or a certified copy of
the relevant entries in such roll shall, unless it has been filed along
with the nomination paper, be produced before the returning
officer at the time of scrutiny. "
According to the section a candidate is required to
furnish certified copy of the electoral roll or the relevant entries of
such roll along with his nomination paper if he is an elector of a
different constituency. In the present case since the petitioner belongs
to the „constituency‟ encompassing territorial boundary of the
Assembly constituency in question, there was no occasion or
requirement for him to furnish or annex a voter list or extract thereof.
Petitioner belongs to the 110, Raghopur Assembly Constituency
which forms part and parcel of the constituency. If that is the legal
requirement then even if the petitioner had not annexed any extract of
the electoral roll for the year, 2002 he did not commit any breach of
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the statute. If the extract of 1995 electoral roll was annexed with the
nomination paper which continued to be a valid electoral roll even for
the subsequent years then the reason recorded by the Returning
Officer that the petitioner did not have the required Aharta
(qualification) as on 1.1.2002 and non-furnishing of certified copy of
the voter list was a misplaced kind of reasoning. Petitioner‟s
categorical statement is that there was a deliberate mischief played
with his nomination paper and the rejection for the ground indicated
by the Returning Officer is not a valid reason in the eye of law. To
buttress his submission he further submits that all the 50 other
candidates had furnished extracts of electoral roll for various
periods. There were a few of 1995, majority for the year, 1998, two
for the year 2000 and 2002 and one candidate furnished nothing with
his nomination paper except annexing the photo identify card issued
by the Election Commission. Ironically even the returned candidate,
Balram Singh Yadav had furnished extract of 1998 voter list with his
nomination paper which was found to be valid. This fact is borne out
from the perusal of the nomination papers and also from a chart
furnished by the petitioner which is on record and not disputed by
respondent.
With such varied kinds of extracts having been
annexed with the nomination papers of other candidates, the Returning
Officer did not find any fault whatsoever with their nominations but
from where he got this illusion that the petitioner alone had to furnish
extract of the certified copy of the voter list of 2002 and must have
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„Aharta‟ of 1.1.2002 seems to be in violation of the provision
contained in section 33 (5) of the 1951 Act. In otherwords, the
rejection of the nomination paper of the petitioner prima facie was not
based on any legal or statutory ground but on a nonest ground and this
is good enough for election of the respondent to be set aside.
Submission of learned Senior counsel thereafter is that
even for the sake of argument if the petitioner or any other candidates
had not even attached any extract of the voter list of the constituency
in question the Returning Officer was duty bound to scrutinize the
nomination papers based on the voter list of the constituency in
question as per the details of the entries provided in the nomination
paper. If there was omission to scrutinize the nomination papers from
the electoral roll of the constituency then he cannot be made to suffer
on the ground of failure of the Returning Officer to perform his
statutory duty.
The next limb of submission of learned Senior
Counsel for the petitioner is that acceptance of nomination paper is
more of a rule and rejection is exceptional. The position or this stand
is based on a reading of the provision and rulings in this regard on
section 36(5) of the 1951 Act. The nomination paper can be rejected
on very limited ground. The object of the scrutiny is not to find faults
in it but to detect defects of substantial nature or character. In this
regard reliance has been placed on a decision of the Hon‟ble Supreme
Court in the case of Ram Awadhesh Singh vrs. Smt. Sumitra Devi
reported in AIR 1972 SC 580. Similar view has also been expressed
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by the Hon‟ble Supreme Court in the case of Viveka Nand Giri vrs.
Nawal Kishore Shahi reported in AIR 1984 SC 856.
It is contended further that if the Returning Officer had
completed the process of scrutiny in accordance with section 33 (4)
read with section 33 (5) of the provision of the Representation of the
People Act, 1951, there would have been no occasion for rejection of
the nomination paper.
Learned counsel appearing for the respondent, namely,
Balram Singh Yadav submits that the election petition does not
disclose the material fact nor are the pleadings in place in support of
the allegation of illegal rejection of the nomination paper. If the
material facts are not pleaded the Court would not get into the nitty-
gritty of so called illegal rejection of nomination paper of the
petitioner. He further pleads that in terms of section 86 of the Act the
election petition is fit to be dismissed for non-compliance of sections
81, 82 and 117 of the Representation of the People Act, 1951.
Submission has been made as to what constitutes material facts. It is
also urged that the petitioner was not a serious candidate because on
the date of scrutiny he did not appear before the Returning Officer. A
memo was issued to the petitioner by the Returning Officer which was
received by one of his proposers about the date and time of the
scrutiny but the same was ignored by him. If the petitioner was careful
and vigilant enough then may be the present rejection of his
nomination would not have happened.
The Court has to examine therefore whether the
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grounds urged by the respondent against the maintainability of the
election petition and the grounds indicated above are cogent or valid.
Attention of the Court has been drawn to the election
petition with emphasis on narration of facts and events where a
categorical assertion has been made by the petitioner that the rejection
or the reason for rejection of the nomination paper of the petitioner
was an improper rejection and the reasoning further assigned is in
conflict with section 33 (5) of the Representation of People Act, 1951.
Since there was no legal duty or requirement cast upon the petitioner
or any candidates to annex voter list of the constituency, mere
declaration with regard to the Part, the Serial Number and the name of
the constituency was more than enough. It was incumbent upon the
Returning Officer thereafter to verify from the voter list of the
constituency and then either reject or accept the nomination papers.
Since the same had not been done and pleadings of the petitioner in
this regard are categorical, therefore, the objection raised on behalf of
the respondent that the material facts have not been pleaded is not
correct.
Learned counsel for the petitioner has drawn the
attention of the Court to the written statement which had been filed by
the respondent to the election petition. In the first written statement
even the respondent is not very sure as to the requirement of annexing
extract of the voter list and what was the voter list which was required
to be filed. He sums up the position in paragraph-13 of the written
statement which is quoted herein below for ready reference as to the
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stand of the respondent on the issue:
"That the statement made in paragraph no.-11 is
misleading and misconceived. The petitioner belongs to the
another district and he was required to produce the certified copy
of the electoral roll as per the notification of the Election
Commission."
Subsequently in paragraph-15 of the written statement
a stand has been taken that the candidates were required to file
extract of the electoral roll of the year 1998. An additional written
statement was subsequently filed on behalf of the respondent. A
reading of the same coupled with the categorical stand taken in the
first written statement only muddies the water as to what was required
to be filed or not filed or was actually filed along with the nomination
paper.
Petitioner does not deny that he had filed an extract of
1995 electoral roll and even in the electoral roll of 1998 the Part and
Serial Number where the petitioner‟s name figured was identical. If
the Retuning Officer had bothered to turn the pages of 1998 electoral
roll at the time of scrutiny then the above declaration of the petitioner
in the nomination paper would have stood verified and corroborated.
But then the reason for rejection of the nomination of the petitioner is
not that the petitioner had not annexed 1998 electoral roll. The
reason assigned is that he did not have the Aharta as on 1.1.2002 and
he had not annexed Styapit (certified) extract of the electoral roll
in the regard.
Learned counsel for the petitioner therefore sums up
his submission on this issue that the Returning Officer has committed
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error by illegal rejection of nomination paper of petitioner by
imposing a burden upon him which was not required under
Representation of People Act, 1951 or any other provisions in this
regard. The Returning Officer has applied varied standards in scrutiny
of the nomination papers and even the reason assigned by him that the
petitioner did not have the Aharta (Qualification) as on 1.1.2002 is
not based on any requirement of law.
The next submission of the petitioner is to the
objection of the respondent that petitioner was not a serious candidate
and he did not present himself for scrutiny on the date fixed even
when a memo was issued by the Returning Officer which is Memo
No. 10 dated 23.6.2003. The said memo is on record along with the
nomination paper which is annexure-1 as well as annexure-A to the
written statement. The Court is surprised to find that much emphasis is
being placed on this memo by the respondent but the memo does not
disclose anything. It is a blank memo with nothing indicated as to
what purpose and object it was issued and even otherwise it was not
received by the candidate or his agent but supposedly by one
Samrendra Nath Singh, a proposer of the petitioner. The memo
therefore is neither here nor there. On the submission of the
respondent that the petitioner was not a serious candidate he submits
that since he was a serious candidate therefore he had been targeted by
getting his nomination paper rejected, without any valid rhyme or
reason available under the law.
The Court also decides to have a look at the oral
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evidences which have been adduced on this score. Five witnesses
were produced on behalf of the petitioner. P.W. 1 is the petitioner
himself where he has stated that he was one of the candidates for the
"Constituency" of the Local Body and was a voter of 110- Raghopur
Assembly Constituency. He stated that his nomination papers were
illegally rejected. He filed two sets of nomination papers which were
duly signed by him and his proposers. In one of the nomination papers
a detailed reason for rejection was recorded but in the second
nomination paper the word "Aswikrit Karta Hun" (rejected) only
mentioned. He has furnished the details of his name, the Part and the
Serial Number of 110- Raghopur Assembly Constituency which is
reflected in the voter list of 1998. His name figured at serial no. 444 in
Part 11. He also states that a demand of voter list for the year, 2002
was made from him orally but there was no voter list of the year
available to his knowledge. He also denied that he had received any
kind of memo much less memo no. 10. He does accept that he was
personally not present at the time of scrutiny but he had authorized
one Sri Prabhakar Singh, Advocate to participate in the same but he
was not allowed to go to the place of scrutiny.
The other witnesses on behalf of the petitioner more or
less state similar kind of things and there is nothing glaring pointed
out by the respondent which requires to be taken note of.
On behalf of the respondent, 16 witnesses have been
examined. The respondent‟s witnesses in question were either
candidates in the said election or proposers of the respondent in
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question or voters. In the varied statements made in the evidence led
by them, majority of them have submitted that 1998 voter list was the
current voter list and there is no voter list as such of 2002. It also
emerges that most of the candidates had annexed voter list of the year
1998 and that was the voter list in operation at the relevant time. In
otherwords there is nothing to support that there was a requirement
upon the candidates to annex voter list of the year 2002 or there was
need for Aharta (qualification) of 1.1.2002.
The Returning Officer was also summoned as an
official witness who is Mr. R.L. Chongthu. In his evidence in
examination-in-chief he has accepted that he was the Returning
Officer by virtue of being the D. M. of Saharsa. 51 candidates had
filed their nominations and he remembers rejecting one nomination
paper as that of the petitioner. But significantly he also accepts in his
examination-in-chief that certified copy of the electoral roll of the year
1998 was the valid document which was required to be filed along
with the nomination papers as far as he could remember. But in his
cross-examination he accepted that he rejected the nomination paper
of the petitioner because he did not annex the voter list of the
qualifying date of 1 st January, 2002. He did accept that 1998 voter list
was the mother roll. In otherwords, the Returning Officer could not
satisfactorily explain in his evidence as to why he chose to reject the
nomination of the petitioner for a voter list with qualifying date of
1.1.2002 when 1998 voter list was the mother roll and the Part and
Serial Number furnished by the petitioner was the same as that of
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1998 voter list. Though he admits that he had submitted extract of
1995 voter list which was no different from 1998 voter list.
Another significant aspect which emerges is that the
Returning Officer states that certified copy of the electoral roll of
1998 was a valid document which was required to be filed along with
the nomination papers of the candidates. From where does the
Returning Officer gets this motion has not been explained either by
him or by learned counsel appearing on behalf of the respondent. The
Court gets a feeling that the Returning Officer did not even know the
basic requirement of law and the provisions including the provisions
specifically provided in section 33 (5) of the Representation of the
People Act, 1951.
The Court therefore comes to a considered opinion
that there was no cogent or legal reason for rejection of the
nomination of the petitioner. The Returning Officer had rejected the
nomination paper without any valid reason or breach of law. He has
totally failed to explain the considerations which went into the
decision making of rejecting the nomination of the petitioner. He does
not seem to be well versed with the requirement of law and rules
while scrutinizing nomination papers filed by the candidates in this
regard.
In totality therefore it is declared that the election
petition as framed is maintainable and that the rejection of the
nomination of the petitioner was an improper rejection under section
100 (1) (c ) of the Representation of the People Act, 1951. The
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election petition is in order and petitioner has made out a case for
interference.
Issue Nos. 1, 3 and 4 are answered in favour of the
petitioner. Issue No. 2 is misplaced.
The Court declares the election of respondent no.1,
namely Balram Singh Yadav @ Balram Singh for Constituency No.
20 of Local Government of Saharsa-cum- Madhepura-cum- Supaul
to be illegal and void and sets aside his election as such. Let the
substance of the decision be communicated to Election Commission
and the Chairman of the Bihar Legislative Council.
The election petition is allowed.
(Ajay Kumar Tripathi, J.)
Patna High Court, Patna
Dated the 19th September,2008
NAFR/RPS/Sr.Secy.