Jharkhand High Court
Unknown vs Paulus Surin on 17 December, 2019
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
1
Election Petition No.9 of 2015
(In the matter of a petition under Section 80A, 81 & 82
read with Section 86 of Representation of the People Act,
1951)
Koche Munda ..... Petitioner
Versus
1. Paulus Surin
2. Puneet Hemrom
3. Clementia Hemrom
4. Poulus Dang
5. Samrom Topno
6. Suman Bhengra
7. Vijay Aind ..... Respondents
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For the Petitioner : Mr. V.P.Singh, Sr. Adv.
Mr. Ashok Kumar Sinha, Adv.
Mrs. Rashmi Kumari, Adv.
For the Respondent : Mr. R.S. Mazumdar, Sr. Adv.
Mrs. J. Mazumdar, Adv.
Mr. Dr. Ashok Kr. Singh, adv.
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PRESENT THE HON'BLE MR. JUSTICE ANANT BIJAY SINGH C.A.V. on 11/12/2019 Pronounced on 17/12/2019
1. The instant election petition has been filed on behalf of the Koche Munde (election petitioner) in terms of provisions of Section 80A, 81 & 82 read with Section 86 of Representation of the People Act, 1951, challenging the Election of the Returned Candidate Respondent No.1, Paulus Surin, who has been declared elected from 59, Torpa (S.T) Jharkhand Legislative Assembly Constituency as a member of the Jharkhand Legislative Assembly for which the election was held on 02.12.2014 and result was declared on 23.12.2014.
2. Election petition was filed on 04.02.2015. On 19.06.2015 notices were issued to the respondents, for which requisites etc. must be filed within one week to be served through ordinary process as well as by registered post. Rule is made returnable within six weeks.
It appears from order no.8, dated 24.11.2015 2 despite valid service of notices upon respondent nos.1 to 4, they did not appear and therefore, order was passed to proceed the case ex-parte against respondent no.1 to 4 and last opportunity was given to the respondent nos. 5, 6 and 7 to file written statement and matter was directed to be listed on 21.01.2016.
Respondent nos. 5, 6 and 7 appeared and time given to them to file the written statement but they did not file any written statement, so matter also proceeded ex-parte against them.
On 22.01.2016, respondent no.1 appeared through his counsel by filing Vakalatnama. Thereafter, matter was directed to be listed on 19.02.2016.
On 19.02.2016 an interlocutory application being I.A. No.1001/2016 was filed on behalf of the respondent no.1 to recall the order dated 24.11.2015 by which this Court passed an order to proceed ex-parte against respondent no.1 to 4. I.A. No.1001/2016 was allowed and respondent no.1 was directed to file written statement within a period of three weeks.
On 08.04.2016 written statement filed on behalf of the respondent no.1 was accepted.
On 17.06.2016 vide order no.14 seven issues were framed.
3. The case of the election petition in his plaint is as follows:-
(i) That the petitioner is a citizen of India and is also a Voter having his name in part no.71, serial no.40, from 59, Torpa (S.T) Jharkhand Assembly Constituency Election, 2014.
(ii) That as term of Jharkhand Legislative Assembly was going to expire on 03.01.2015, therefore, for constitution of new Legislative in the State of Jharkhand the Election Commission of India in the month of October, 2014 announced Election Programme. The Election for Jharkhand Legislative Assembly was announced to be held in 5 phases.3
(iii) That 59, Torpa Legislative Assembly seat is a reserved seat for Scheduled Tribe and Election was scheduled to be held in Phase-II. The Election programme for 59, Torpo (S.T.) Legislative Assembly also was announced as follows:-
I Date of issue of notification 07.11.2014 II Late date making nomination 14.11.2014 III Date of Scrutiny 15.11.2014 IV Last date of withdrawal 17.11.2014 V Date of Poll 02.12.2014 VI Date of Counting 23.12.2014
(iv) That the Petitioner and all Respondents including some others filed their nomination papers contesting the Election of Jharkhand Legislative Assembly for 59. TorPA (S.T.) seat.
(v) That in the scrutiny nomination papers of two candidates namely (i) Jitendra Chick Baraik and (ii) Sukhram Herenj were rejected but nomination papers of the Petitioner and all Respondents including some more person/persons were found valid.
(vi) That after withdrawal only eight (8) persons i.e. the Petitioner and all seven (7) Respondents remain in the field. After completion of all above and allotment of symbol voting was held by Electronic Voting Machine (E.V. Ms) on 02.12.2012 and counting of vote was held on 23.12.2012.
(vii) That in the counting the Retuning Officer declared that Total Votes Polled - 103993 including 137 postal votes, postal rejected votes-38 and NOTA Votes 3828 and also declared that the candidates have secured following number of votes;
Sl. Petitioner/ Party Votes
No Respondent Polled
name
1 Koche Munda B.J.P. 31960
(Petitioner)
2 Poulus Surin J.M.M. 32003
(Resp.-1)
4
3 Puneet Hemrom Congress 8242
(Resp.-2)
4 Clementia T.M.C. 2324
Hemrom
(Resp.-3)
5 Poulus Dong Rastriya 1520
(Resp.-4) Jankranti Party
6 Samrom Topno Akhil Bhartiya 3191
(Resp.-5) Jharkhand
Party
7 Suman Bhengra Jharkhand 18966
(Resp.-6) Party
8 Vijay Aind Independent 1959
(Resp.-7)
100165
(viii) That the Returning Officer -cum- Additional Collector, Khunti wrongly and illegally declared Respondent No.-1 Poulus Surin as Elected from -59, Torpa (S.T.) Jharkhand Assembly Constituency by margin of 43 Votes.
(ix) That the Petitioner is challenging the election of returned candidate Respondent No.1- Poulus Surin from-59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency Election- 2014 on following grounds:-
(a) The nomination paper of Jitendra Chick Baraik was improperly, wrongly and illegally rejected;
(b) The nomination papers (a) the returned candidates Respondent No.-1 Paulus Surin, (b) Respondent No.-3 Clementia Hemrom, (c) Respondent No.-4 Poulus Dang and (d) the Respondent No.-7 Vijay Aind were improperly, wrongly and illegally accepted by the Returning Officer, which had materially affected the result of election;
(c) There has been improper reception of 69 Postal Votes in favour of the Returned Candidate Respondent No.-1 Paulus Surin and improper rejection of 38 valid Postal Votes polled in favour of the Petitioner, these have also materially affected the result of the election.5
(d) There has been miscounting of Postal Votes which were validly polled in favour of the Petitioner but were counted in favour of other candidates, this has also materially affected the result of the election.
(e) The returned candidate- Respondent No.-1 and his Election Agent with the help of their men captured polling booths being booth numbers 58, 66, 76, 85, 103, 104, 116, 124, 125, 128, 131 132 (Total 12 Booths) and got maximum Votes polled in those booths in favour of the Returned Candidates.
(f) The Election Agent of the Respondent No.-1 with consent and connivance of the Respondent No.-1 obtained several hundred illegal Votes in their favour of the Persons who were already dead.
(x) That it is stated and asserted that the Petitioner has received maximum valid votes in the Election of 59, Topra (S.T.) Jharkhand Legislative Assembly Election-2014 has been illegally, wrongly declared to have lost election by 43 Votes by the Returning Officer
(xi) That the Returning officer-cum-Additional Collector, Khunti worked under influence of the Dy.
Commissioner, Khunti who is close relation of the returned Candidate the Respondent No.-1 Poulus Surin.
(xii) That the Respondent No.-1 the returned candidate Sri Paulus Suri was a candidate of J.M.M. Party which was in power in the State of Jharkhand at the relevant time of the Election.
The Respondent No.-1 in his nomination paper has disclosed about pendency of only three (3) Criminal Cases against him but has suppressed about pendency of several cases against him including:-
(a) Bano P.S. Case No.-3 of 2012 which he has been charge sheeted on 23.05.2012 alongwith others under Sections 147, 148, 149, 379, and 120 (B) the Cr.P.C. This case is pending for Trial being S.T. No.-158 of 2012.
(b) Govt. Appeal against his acquittal pending 6 before this Hon'ble Court arising of his acquittal in S.T. No.-165 of 2009 arising out of G.R. No 166 of 2009 in relation to an incident of murder. The Petitioner came to know that the Respondent No.-1 was acquitted only because most of the eye witnesses/witnesses had not appeared during trial where as in fact they died unnatural death during trial. The Petitioner also came to know that in acquittal appeal notice has been issued by this Hon'ble Court to theRespondent No.-1.
(xiii) That nomination papers Jitendra Chick Baraik, who has submitted his nomination for contesting the 2014 election from Torpa (S.T.) Jharkhand Legislative Assembly Constituency wrongly and illegally was rejected by Returning Officer at the time of scrutiny 15.11.2014. this illegal rejection nomination has materially affected the result of the Election.
(xiv) That the Constitution (Schedule Tribes) Order 1950, Part relates State IIXX Jharkhand. The said part XXII at serial 10 contains "Chick Baraik" as Schedule Tribe Section 24 of the Bihar Reorganization Act- 2000 and its Sixth Schedule Sl. No.-10 also says "Chick Baraik" as Schedule Tribe.
Therefore, rejection of nomination of Jitendra Chick Baraik on the ground that his caste certificate, which was issued S.D.O., Khunti vide Serial No.-1494 on 25.08.2006, was cancelled by Circle Officer, Torpa vide his letter dated (T)66) 29.09.2014.
(xv) That ST stated and asserted that said Jitendra Chick Baraik is a "Schedule Tribe" and his nomination should not have been rejected by the Returning Officer. Said Jitendra Chick Baraik should have been given opportunity to produce materials in support of his claim. Even the certificate, which granted the Petitioner on 25.08.2006 by S.D.0., Khunti, was wrongly, illegally and in violation of rule of natural justice was cancelled by Circle Officer, Torpa, who is not superior and controlling Officer the S.D.O., Khunti. Therefore above cancellation 7 of caste certificate Jitendra Chick Baraik by C.O. Topra was also without authority.
(xvi) That the Nomination Papers of the Returning Candidate Respondent No.-1 Paulus Surin, Respondent No.-3 Clementia Hemrom"'dsesfUl;k gsej¨e'" Respondent No.-4 Poulus Dang and Respondent N.-7 Vijay Aind were wrongly and illegally accepted as valid by the Returning Officer as those nomination papers were correctly and legally filled as per requirement of law. This wrong and illegal acceptance of nomination papers above candidates have materially affected the result of election.
(xvii) That nomination papers the Respondent No.-1 Surin should not have been accepted Poulus and should have been rejected because in Part 'Kha' Column- 8 (iii) (Kha) has been left blank in relation wife, Dependant-1, Dependant-2 and Dependant-3. The law as well nomination form clearly states that all Column must be filled.
(xviii) That the nomination papers of the Respondent No.-3 Clementia Hemrom ",'dsesfUl;k gsej¨e'",who has secured 2324 Votes, should have been rejected in scrutiny by Returning Officer because she has written her name as "'dsesfUl;k gsej¨e'" but singed as Clementia Hemrom. Apart from above in part "Kha" of her nomination paper there is no name of any candidate. The Column 8 (iii) part Kha) of her nomination was also not fillled.
On above grounds her nomination should not have been accepted by the Returning Officer and should have been rejected. This wrong and illegal acceptance of nomination paper of the Respondent No.-3 has materially affected the result of the Election.
(xix) That similarly nomination papers the Respondent No.-4 Poulus Dang should not have been accepted by the Returning Officer because several columns of his nominations were blank. The Respondent No.-4 in Part 'K' has not disclosed the name of his 8 dependants. His nomination paper Part 'Kha' Column 8
(iii) (Kha) was also blank in relation to his Wife, Dependant-1, Dependant-2 and Dependant-3.
On above ground nomination of the Respondent No.-4 should not have been accepted but should have been rejected by Returning Officer. This has also materially affected the result of the Election.
(xx) That nomination paper Respondent No.-7 Vijay Aind also should not have been accepted by the Retuning Officer as he has left blank several Columns in his nomination.
This has also materially affected the result of the Election.
(xxi) That the Returning Officer has wrongly and illegally accepted and counted 69 Postal Votes in favour of the Returned Candidates - Respondent No.-1 Poulus Surin even though those Votes were not in conformity of rule 23 of Conduct of Election Rules 1961 and the Forms 13A, 13B and 13C were not properly and correctly filled up.
The above illegal acceptance of 69 Postal Votes in favour of the Respondent No.-1 has materially affected the result of this Election.
(xxii) That the Returning Officer wrongly and illegally rejected 38 Postal Votes polled in favour of the Petitioner even though those Votes were fulfilling all the requirement of law, therefore, this illegal rejection of 38 valid Postal Votes polled in favour of the Petitioner has materially affected the result of the Election.
(xxiii) That Workers and polling agents of the Respondent No.1 with his consent and connivance have captured polling booths numbers 58, 66, 76, 85, 103, 104, 116, 124, 125, 128, 131 and 132 and they have not allowed all the supporters of the Petitioner to Vote. The detail of those booths are:
Sl Booth Total Vote Votes Polled %age of No. No. Voter Polled in Favour of Vote 9 Resp. No.1 Rsp.
No.1 1 58 821 500 338 67.60 2 66 539 300 235 78.33 3 76 847 599 416 69.44 4 85 795 390 270 69.23 5 103 856 502 409 81.47 6 104 495 298 204 68.45 7 116 1026 587 427 72.74 8 124 1247 697 391 56.97 9 125 627 405 276 68.14 10 128 1078 634 436 68.76 11 131 635 312 250 80.12 12 132 443 267 190 71.16 The above act the Workers/Polling Agents/Election Agents of the Respondents has materially affected the result of the Election.
(xxiv) That not only as stated above the Workers/ Polling Agents/ Election Agents the Respondent consent and connivance got polled votes of several dead persons in favour of the Respondent Poulus Surin. These illegal Votes polled in favour the Respondent No.-1, has materially affected the result of the Election.
(xxv) That the Petitioner states and submits that Votes of those dead persons polled in favour the Respondent No.-1 may kindly be de- coded and then deducted from the Votes of the Respondent No.-1.
(xxvi) That looking illegality in counting the Party of the Petitioner before declaration of result submitted representation to the Chief Election Commission, New Delhi with copy to Chief Election Officer, Jharkhand, District Election officer, Khunti, Observer and Returning Officer.
(xxvii) That the petitioner states and submits that above void Votes polled in favour of the Respondent No.1 be deleted and his election may kindly be set aside as he has secured less valid votes than the petitioner.
(xxviii) That the petitioner has received maximum Valid Votes in the polling fro 59 Torpa (S.T.) Jharkhand Assembly Election 2014 therefore he may kindly be 10 declared Elected.
4. Respondent No.1 appeared and filed his written statement taking following grounds and has stated as follows:-
(i) That it is stated that the Petitioner has filed in the instant Election Petition with ulterior motive, only with view to humiliate and harass the returned candidate and it is stated that the instant Election Petition is also bad for non-joinder of necessary parties in whose absence no effective order can be passed hence on this score alone this Election Petition is fit to be dismissed.
(ii) That at the outset it is humbly stated and submitted that the instant Election Petition, under reply, is neither maintainable on facts nor in law.
(iii) That the petitioner has filed the instant Election Petition only by making a bare and baseless allegation without any proof and on this score alone, the instant election petition is fit to be dismissed.
(iv) That with regard to the averment made in Para-1 of the Election Petition, under reply, it is stated and submitted that the same is the prayer of the petitioner which has no leg to stand in the eyes of law and therefore this election petition is liable to be dismissed by this Hon'ble Court.
(v) That with regard to the averment made in Para-2 and 3 of the Election Petition, under reply, it is stated and submitted that the respondent No. 1 has no knowledge about the averments made in Para-2 and puts the petitioner to strict proof thereof.
(vi) That with regard to the averment made in Para-4, 5, 6, 7, 8 and 9 of the Election Petition, under reply, it is stated and submitted that the same requires no comment.
(vii) That with regard to the averment made in Para-10 of the Election Petition, under reply, it is stated and submitted that the averments about wrong and illegal declaration of respondent No. 1 as elected is 11 denied and disputed. It is humbly stated and submitted that the respondent No. 1 has been validly and rightly declared as elected as he secures more number of votes than the Petitioner.
(viii) That with regard to the averment made in Para-11 of the Election Petition, under reply, it is stated and submitted that the respondent No. 1 denies and disputes all the grounds raised by the petitioner and states and submits that all the grounds raised are baseless.
(ix) That with regard to the ground at Para-11 (i) of the Election Petition, under reply, it is stated and submitted that the nomination papers of Jitendra Chick Baraik was rejected on the ground that his caste certificate had been cancelled and therefore it is beyond the understanding of the respondent No. 1 as to how the petitioner is averring that the nomination of Jitendra Chick Baraik improperly, wrongly and illegally rejected and therefore the said ground of the petitioner is denied, as baseless by the respondent No. 1.
(x) That with regard to the ground at Para-11 (ii) of the Election Petition, under reply, it is stated and submitted that it is again a baseless and a bare allegation of the petitioner that the nomination papers of the returned candidates stated at Para-11(ii) were improperly, wrongly and illegally accepted by the Returning Officer and the said ground is denied as baseless. It is further stated that the respondent No. 1's nomination has been validly accepted and had it been a case that certain nominations were wrongly accepted, then the petitioner ought to have raised his objections at that point of time itself.
(xi) That with regard to the ground at Para-11(iii) of the Election Petition, under reply, it is stated andsubmitted that how there has been improper reception of postal voter and now there has been improper rejection of postal votes has not at all stated by 12 the petitioner apart from making only a bare averment and therefore this ground of the petitioner is also baseless and should be rejected.
(xii) That with regard to the ground at Para-11 (iv) of the Election Petition, under reply, it is stated and submitted that yet again a baseless allegation of miscounting leveled by the petitioner without there being any proof thereof and had it been a case of miscounting the same should have been objected by the Election Agents of the Political Party who were present at the time of counting.
(xiii) That with regard to the ground at Para-11(v) of the Election Petition, under reply, it is stated and submitted that this ground is baseless and strongly denied by the respondent No. 1, the respondent No. 1 categorically denied that there has been no booth capturing as alleged by the petitioner and had there been any case of booth capturing, the petitioner and other candidates and/ or the media or election personnel would have definitely complained and raise issue with the Election Commission, but no such complaint was ever made and therefore this ground raised by the petitioner is nothing but an afterthought.
(xiv) That with regard to the ground at Para-11(vi) of the Election Petition, under reply, it is stated and submitted that the same is denied that any illegal votes was ever obtained by respondent No. 1
(xv) That with regard to the averment made in Para-12 of the Election Petition, under reply, it is stated and submitted that it is denied and disputed that the respondent No. 1 had been illegally declared to be elected.
(xvi) That with regard to the averment made in Para-12 of the Election Petition, under reply, it is stated and submitted that the averments made about a close relation between the Deputy Commissioner, Khunti and respondent No. 1 is denied and disputed. There is no 13 relation in between respondent No. 1 and the Deputy Commissioner, Khunti.
(xvii) That with regard to the averment made in Para-14, the same are denied and disputed. There has been no suppression by the answering Respondent. The answering Respondent has not been charge sheeted in Bano PS Case no. 3/2012. The answering Respondent further states that there is no requirement to disclose about acquittal appeal preferred by State as in because the acquittal holds good till it is interfered with and acquittal means the case is no longer pending.
(xviii) That with regard to the averments made in 15, 16 and 17 of the Election Petition, under reply, it is stated and submitted that the nomination papers of Jitendra Chick Baraik was rejected on the ground that his caste certificate had been cancelled and therefore it is beyond the understanding of the respondent No. 1 as to how the petitioner is averring that the nomination of Jitendra Chick Baraik improperly, wrongly and illegally rejected and therefore the said ground of the petitioner is denied, as baseless by the respondent No. 1.
(xix) That with regard to the averment made in Para-18 of the Election Petition, under reply, it is stated and submitted that the same is denied and disputed. The petitioner has only made a bare averment and has not brought on record any link in acceptance of nomination papers of the candidates at Paragraph- 18 and results of the election.
(xx) That with regard to the averment made in Para-19 of the Election Petition, under reply, it is stated and submitted that the same is denied and disputed and it is stated that the said column was filled.
(xxi) That with regard to the averment made in Para-20, 21, 22 and 23 of the Election Petition, under reply, it is stated and submitted that the averment made in the said paragraphs are not concerned with the petitioner and therefore the petitioner is not making any 14 reply to the same. However, the petitioner reserves its right to respondent to the averments made in these paragraphs.
(xxii) That with regard to the averment made in Para-24 of the Election Petition, under reply, it is stated and submitted that the same is denied. The petitioner has failed to substantiate his allegations, illegality or impropriety. The respondent No. 1 reserves right to file further affidavit, if further details are brought on record by the petitioner in this regard.
(xxiii) That with regard to the averment made in Para-25 of the Election Petition, under reply, it is stated and submitted that the same is denied. Had there been any booth capturing, the petitioner and his supporters ought to have made protest, however, no such protest or complaints were made.Entire process is in presence of representatives of all candidates of all parties and therefore there is no question of any illegality and it is beyond imagination that no protest was made by the Petitioner or other candidates in relation to booth capturing.
(xxiv) That with regard to the averment made in Para-26 and 27 of the Election Petition, under reply, it is stated and submitted that the same is denied and disputed. It is beyond the knowledge of the respondent No. 1 as to how the petitioner is claiming that the persons mentioned in the list annexed as Anexure-1 series are to be dead persons. By way of example, the respondent No. 1 is annexing proof about some persons whose name is included in the list of the petitioner as dead person, but the said persons are alive so it is beyond the knowledge of the answering Respondent how the Petitioner is making all these allegations which on the face of it seems doubtful.
(xxv) That with regard to the averment made in Para-28 of the Election Petition, under reply, it is stated and submitted that the averment made therein is beyond 15 the knowledge of the respondent No. 1.
(xxvi) That with regard to the averment made in Para-29 and 30 of the Election Petition, under reply, it is stated and submitted that the same is denied and dispute. The respondent No. 1 has been validly elected.
(xxvii) That with regard to the averment made in Para-31 of the Election Petition, under reply, it is stated and submitted that this allegation is nothing but frivolous attempt on the part of the petitioner to malign the respondent No. 1. The petitioner has filed the instant Election Petition without providing any detail and only made baseless allegations without any proof.
(xxviii) That with regard to the averment made in Para-1-32 of the Election Petition, under reply, it is stated and submitted that the same need no comment.
(xxix) That with regard to the averment made in Para-33 of the Election Petition, under reply, it is stated and submitted that neither bona fide nor in the interest of justice, as the same has been made only by making baseless allegation without any proof and the same is fit to be dismissed by this Hon'ble Court.
It is, therefore, prayed that in view of the above submission the instant Election Petition is liable to dismissed with exemplary costs.
No written statments of other respondents have been filed.
5. On the basis of pleadings, averments made in the plaint and written statment of the respondent no.1, by order dated 17.06.2016 following issues were framed:-
(i) Whether the Election Petition in its present form is maintainable?
(ii) Whether the instant Election Petition is fit to be dismissed due to non-joinder of necessary parties?
(iii) Whether the Returning Officer has applied double standard for accepting the nomination paper of some of the candidates?
(iv) Whether the Returning Officer has applied 16 double standard in accepting and rejecting the postal votes resulting in miscounting and declaration of results of the returned candidates?
(v) Whether respondent no.1 has concealed the material facts against him?
(vi) Whether the counting of votes was improper and unfair in order to help respondent no.1 who has been declared elected?
(vii) Whether the election of the returned candidates is fit to be declared void and the petitioner is fit to be declared elected as he has received maximum number of valid votes?
6. During course of arguments learned counsel for the petitioner fairly submitted that although 07 issues have been framed, now issue no.(iii), (iv) and (v) is to be adjudicated and so far issue no.(vi) is concerned despite best efforts of the petitioner could not led the evidence to prove this issues.
Learned counsel for the petitioner referred to Section 100 of the Representation of the People Act, which contemplates grounds for declaring election to be void and he referred to provisions of Section 100 (1) (c) & (d), which reads as under :-
100. Grounds for declaring election to be void . - (1) Subject to the provisions of sub-section (2), if the High Court is of opinion -
(a) ...........................................
(b) ...........................................
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
Further relied on the judgment of Hon'ble Supreme Court reported in AIR 2014 SC 344 in the case of Resurgence India Vs. Election Commission of India 17 & Anr., and relevant paragraphs is 20, 21 & 26 which are as follows:-
20. Let us now test whether the filing of affidavit stating that the information given in the affidavit is correct but leaving the contents blank would fulfill the objective behind filing the same. The reply to this question is a clear denial.
The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India. The citizens are required to have the necessary information at the time of filing of the nomination paper in order to make choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory.
21. For that purpose, the Returning Officer can very well compel a candidate to furnish information relevant on the date of scrutiny. We were appraised that the Election Commission already has a standard draft format for reminding the candidates to file an affidavit as stipulated. We are of the opinion that along with the above, another clause may be inserted for reminding the candidates to fill the blanks with the relevant information thereby conveying the message that no affidavit with blank particulars will be entertained. We reiterate that it is the duty of the Returning Officer to check whatever the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.
26. In succinct, if the Election Commission accepts the nomination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms (supra). Further, the subsequent act of prosecuting the candidate under Section 125A(i) will bear no significance as far as the breach of fundamental right of the citizen is concerned. For the aforesaid reasons, we are unable to accept the contention of the Union of India.
Learned counsel for the petitioner has also filed 18 written arguments wherein it has been stated that the Returning Officer while rejecting the nomination paper of Jitendra Chik Baraik and Sukhram Herenz has not given reasons and supplementing reason in the order- sheet will not sustain rejection and support and relied upon the judgment reported in AIR1978 SC 851 Mohinder Sing Gill.
However, learned counsel for the respondent no.1 submitted that this is not a case of supplementing reason as from the perusal of the entrie order-sheet dated 15.11.2014 mark as Exhibit-1 when the scrutiny of nomination papers of the candidates were taken he have given detail reason.
7. In this case altogether four witnesses examined on behalf of the election petitioner.
Petitioner Witness No. 2, Shashidhar Mandal, Returning Officer:- His cross examination was recorded on 06.03.2018 stating that he was posted as Additional Collector, Khunti District in 2014 and in 2014, 4th Jharkhand State Legislative Assembly Election was held in November-December, 2014. In that election, he was nominated as the Returning Officer of 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency by the Election Commission of India and Sri Somson Soy, I.A.S., the then Deputy Commissioner, Khunti was the District Election Officer.
Total 11 candidates had filed their nomination papers. Out of which, one person had withdrawn his nomination paper. He had rejected the nomination paper of two persons namely, Jitendra Chick Baraik and Sukhram Heranj and finally, 8 candidates had contested the election. Entire order-sheet pertaining to 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency commencing from 07.11.2014 till 23.12.2014, total 56 pages. These orders were dictated by me. The original file and the entire order-sheet is marked as Exhibit-1.
While referring order-sheet dated 15.11.2014, he 19 submitted that he had accepted the nomination papers of all the candidates except Jitendra Chick Baraik and Sukhram Heranj whose nomination papers were rejected by him.
In para-11 of the cross-examination stated that nobody had raised any objection regarding rejection of the nomination paper of Jitendra Chick Baraik. Suo moto says he exercised his powers and he had also assigned reasons for rejecting his nomination paper.
In para-12 of the cross-examination he proved Exhibit-2, which is the original nomination paper of Jitendra Chick Baraik consisting of 50 pages, was filed on 14.11.2014. It also consists of the Caste Certificate of Jitendra Chick Baraik.
He has stated that in Part-3 of the nomination paper, where the provision for declaration of the caste of the candidate to file nomination paper is given, there is no provision that the declaration should be accompanied with a caste certificate of the candidate issued by competent authority.
But, Suo Moto says that 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency is a Constituency reserved for Scheduled Tribe candidates and in absence of the caste certificate of the person who had filed the nomination paper issued by competent authority, I cannot ascertain the caste of the candidate.
He drawn attention to the provision of Section 33 (2) of Representation of People Act, which reads as hereunder:-
"33 (2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a 20 Scheduled Tribe of the State".
and suggestion has given to the defence that the aforesaid Section does not contemplate filing of the caste certificate along with the declaration.
But, Suo Moto says that as per practice and the training given to them before the election that caste certificate is mandatory along with the declaration before filing of the nomination papers.
Attention of P.W.2 was drawn to The Constitution (Scheduled Tribes) Order, 1950, C.O. 22, published with the Ministry of Law on 6th September, 1950 in the Gazette of India, Extraordinary which was framed in exercise of power conferred by clause (1) of Article 342 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make following order, namely, Constitution (Schedule Tribes) Order, 1950, (Part-III - Rules and Orders under the Constitution). Part- XXII which was inserted by Act No. 10 of 2003 contains list of 32 castes for the State of Jharkhand which fall in category of Scheduled Tribe.
Attention of P.W.-2 was drawn to Entry No. 10wherein the caste Chick Baraik finds mentioned.
But, P.W.-2, Suo Moto says that Jitendra Chick Baraik who had filed his nomination paper is not a Chick Baraik as he had not filed his caste certificate.
Attention of the witness was drawn to Exhibit-2 which is the order dated 15.11.2014 passed by the witness while rejection of the nomination papers of Jitendra Chick Baraik wherein no reason was given by him.
From perusal of the Exhibit-2 at page 3 which is nomination paper of Jitendra Chick Baraik in declaration he mentioned himself as member of Chick Baraik Attention of P.W.-2 was drawn drawn to the Exhibit
-2, the nomination paper of Jitendra Chick Baraik is 21 Chick where Suo Moto, says that he have mentioned in the order on the basis of the report of the L.R.D.C. and S.D.O., Khunti and in terms of the Letter No. 86-II dated 28-01-2013 issued under the signature of the Deputy Commissioner, Khunti that the caste certificate of Jitendra Chick Baraik issued on 25.08.2006 declaring him to be a member of Scheduled Tribe has been cancelled as he is Chick by caste.
Further in para-20 stated that he rejected the nomination paper of Jitendra Chick Baraik by order dated 15.11.2014 and he had informed in writing to Jitendra Chick Baraik about the letter of the Deputy Commissioner, Khunti dated 28-01-2013 whereby the Deputy Commissioner, Khunti had cancelled his caste certificate holding him to be a Chick.
He denied the suggestion that he have not given any opportunity and cancelled the nomination paper of Jitendra Chick Baraik and Suo Moto says he have orally informed Jitendra Chick Baraik about the letter of the Deputy Commissioner, Khunti.
It is further stated that It is not correct to say that, illegally with malafide intention, he had rejected the nomination paper of Jitendra Chick Baraik.
The result of 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency was declared on 23.12.2014.
Further order-sheet Exhibit-1 does not reflect that he had called for any paper regarding validity and genuinity of caste certificate of any of the candidates.
Suo moto says He had orally instructed the establishment section to send the caste certificates of the candidates.
He have not mentioned anything in the order-sheet Exhibit-1 about receipt of report pertaining to caste certificates of the candidates.
Suo Moto says that he had received information that the caste certificate of Jitendra Chick Baraik was cancelled by competent authority, S.D.M., Khunti much 22 prior to the elections.
Further he stated in cross-examination Exhibit 3 is original nomination paper of Paulus Surin consisting of 14 pages. At internal page-8 of the nomination paper, at Serial No.8 which deals with the assets and liabilities, at Sub-serial 'Kha' (III) (Kha), the columns pertaining to Wife, Dependent No.1, Dependent No.2 and Dependent No.3 have been left blank and only Column No.1 pertaining to self has been filled up.
Suo moto says that the columns have been filed as per the guidelines of Election Commission of India.
Attention of the P.W.-2 was drawn to internal page-9 of the nomination paper where Comment : 5 pertaining to the direction of the Hon'ble Supreme Court passed in Writ Petition (Civil) No. 121 of 2008 (Resurgence India - Versus- Election Commission of India and others) and the decision dated 13.09.2013 is mentioned wherein instructions are given that filling of all columns by the candidates are necessary and no column has to be left blank, the witness says that this comment has been complied with.
He also proved Exhibit-4 which is the original nomination paper of Clementia Hemrom in 03 sets consisting of 14 pages each. The entire original nomination paper of Clementia Hemrom is marked as Exhibit-4.
Further in Exhibit-4, the candidate Clementia Hemrom has written her name in Hindi as 'dsesfUl;k gsej¨e' and she has put her signature in English whereby her name has been spelt as Clementia Hemrom.
Suo moto says that there is no provision under Representation of Peoples Act for rejection of nomination paper on account of discrepancy in signature. So, I had accepted the nomination paper of Clementia Hemrom.
He has also proved Exhibit-5 which is the original nomination paper of Paulus Dang consisting of 14 pages. The entire original nomination paper of Paulus Dang is 23 marked as Exhibit-5. At internal page-8 of the nomination paper, at Serial No.8 which deals with the assets and liabilities, at Sub-serial 'Kha' (III) (Kha), the columns pertaining to Wife, Dependent No.1, Dependent No.2 and Dependent No.3 have been left blank and only Column No.1 pertaining to self has been filled up.
Suo moto says that the columns have been filed as per the guidelines of Election Commission of India.
He also proved the Exhibit-6, which is the original nomination paper of Vijay Aind in two sets consisting of 14 pages each. The entire original nomination paper of Vijay Aind is marked as Exhibit-6. At internal page-8 of the nomination paper, at Serial No.8 which deals with the assets and liabilities, at Sub-serial 'Kha' (III) (Kha), the columns pertaining to Wife, Dependent No.1, Dependent No.2 and Dependent No.3 have been left blank and only Column No.1 pertaining to self has been filled up.
Suo moto says that the columns have been filed as per the guidelines of Election Commission of India He has stated that in 2014, at the time of elections, J.M.M. was heading the Government and Paulus Surin was a J.M.M. candidate.
The order-sheet Exhibit-1 also reveals that 175 voters had cast their votes through postal ballots.
In his cross-examination, P.W.-2 has stated that entire process of scrutiny of nomination papers and the counting of votes was videographed and Jitendra Chick Baraik, one of the candidates, had furnished his caste certificate along with his nomination paper.
In para-44 stated that the Additional Collector, Khunti was also the In-charge of Establishment Section of the Collectoriat, so he had the occasion to see the file of Jitendra Chick Baraik and on the basis of that he had rejected the nomination paper of Jitendra Chick Baraik.
In para-45 of his cross-examination he stated on 15.11.2014, on the basis of report of Sub-Divisional Magistrate, Khunti, he had rejected the caste certificate 24 of Jitendra Chick Baraik after passing a detail order which is earlier marked as Exhibit-1.
On 15.11.2014 passed a detailed reasoned order mark as Exhibit-1 which reveals that in persons of general observation nominated by Election Commission of India all the nomination paper of candidates, namely, Samrom Topno, Clementia Hemrom, Koche Munda, Puneet Hemrom, Poulus Surin, Poulus Dong, Suman Bhengra, Vijay Aind, Subhash Kongari was followed in order. So far nomination paper of Sukhram Heranj is concerned that he was mentioned his name is registered in the electrol voter list of 60 Khunti (S.T.) Bhag "Sa" 91 but at 91 "Sa" his name does not figure. Enquiry made about voter list of 60 Khunti (S.T.) Bhag "Sa" 91 constituency but his name did not figure, so his nomination paper was rejected.
Furthr, so far nomination paper of Jitendra Chick Baraik is concerned he annexed his caste certificate issued by SDM, Khunti bearing Sl. No.1494 dated 25.08.2006 and enquiry was made and it transpires that caste certificate of Jitendra Chick Baraik was cancelled by competent authority, much prior to the elections vide letter no.83(II) dated 30.01.2013 and intimate the same to the Secretary, Welfare Department, Jharkhand Ranchi. So his nomination paper was rejected.
In para-51 of his cross-examination stated that the Clause 15.15.3.3 of the Hand Book for Returning Officer, 2014 published by Election Commission of India reads as under:
15.15.3.3 The covers in Form 13C received in time should be opened one after another.
(i) On opening the cover "B" in Form 13C, two documents are required to be found inside.
The first is the declaration by the voter in Form 13-A and the second the inner cover Form 13-B containing the postal ballot paper. As each cover is opened, you should take out 25 the declaration in Form 13-A and the cover in Form 13-B and scrutinize the declaration.
Before opening the cover Form 13-B containing the postal ballot paper, the
Returning Officer must check the declaration (Form 13-A). He will reject a postal ballot paper without opening its inner cover (Form 13-B) if:
a) the declaration in form 13A is not found in the cover or
b) the declaration has not been duly signed and / or not attested by an officer competent to do so or
c) it is otherwise substantially defective or
d) the serial number of ballot paper appearing in the declaration is different from the serial number on the cover in Form 13-B. Each such rejected cover should be endorsed suitably and the declaration and the cover should be placed back in the cover in Form 13-C. All such covers in Form 13-C should be kept together in a separate packet duly sealed and full particulars such as the name of the constituency, the date of counting and a brief description of contents should be noted thereon for easy identification.
(ii) All the declaration in Form 13-A, which have been found to be in order, should then be kept in separate packet in order to ensure that the secrecy of the postal ballot remains inviolate (undisturbed). The packet should then be sealed noting the particulars thereon regarding the name of the constituency, the date of counting and brief description of the documents. This should be done before the covers in Form 13-B containing the ballot papers are opened.26
Further stated that he have quoted the aforesaid provision from the Hand Book which he have brought with him and if the aforesaid provision is not followed, the postal ballot is not to be counted.
It is also stated that he have validly rejected the nomination papers of Jitendra Chick Baraik and Sukhram Heranj and he have validly accepted the nomination papers of Paulus Surin after finding the nomination papers in order.
Petitioner Witness No. 3, Binod Bhagat Mr. Binod Bhagat is the Proprietor of Subh Laxmi Vastralaya, a clothes shop situated in Torpa and he was nominated by Koche Munda, a candidate of Bhartiya Janta Party as his counting supervisor in the Jharkhand State Legislative Assembly Elections, 2014, in 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency.
1.He have not filed any paper in Court showing that he was nominated as his Counting Supervisor by Sri Koche Munda and he was not aware of the provisions of the rules pertaining to counting of the postal ballots.
When the postal ballots were counted, he was present in the R.O. table but he have no knowledge that how many assistants were deputed by the Returning Officer in the R.O. table.
In para-6 of his cross-examination he stated that 175 postal ballots were counted. Returning Officer had illegally counted 69 votes in favour of Paulus Surin and he had tried to file written objection, but it was not accepted.
In examination in chief on affidavit he stated that Postal Ballot was counted on 23.12.2014 on Central Table and 175 Postal Ballot was cast and Returning Officer have counted 69 Votes in favour of Polus Surin and rejected the 38 Postal Ballot and made objection.
In para-4 of the cross-examination he stated that he was not aware of the provisions of the rules pertaining to counting of the postal ballots.
27In para-10 of the cross-examination stated that he have no knowledge of the rules that if the postal ballot is not cast in accordance with rules, it can be rejected, and today he have come with Koche Munda to give his evidence.
He denied the suggestion that 38 postal ballots, which were cast in favour of Sri Koche Munda, have been rightly rejected by the Returning Officer and 69 postal ballots which were received by Paulus Surin, have been legally allowed by the Returning Officer. Petitioner Witness-4, Suman Bhengra Suman Bhengra stated in examination-in-chief that he was a candidate from Jharkhand Party in Jharkhand Assembly Election, 2014 from 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency and he received 18955 votes and 11 postal ballots total 18966 He stated that he filed nomination papers on 14.11.2014 and scrutiny of nomination papers was held on 15.11.2014 and he made oral objection before the Returning Officer when the nomination papers of Paulus Surin was accepted.
In para-12 of cross-examination stated that he had not submitted any written complaint before the Election Commission regarding acceptance of nomination papers of Paulus Surin.
He stated that the entire process of scrutiny of nomination papers and counting of the votes of EVM Machines was videographed.
In para-14 of his cross-examination stated that he has not filed any election petition challenging the election of Paulus Surin.
In para 18 of his cross-examination stated that he have no knowledge how many sets, Koche Munda had filed his nomination paper.
In para- 22 of his cross-examination stated that he doesn't know how the postal ballots were counted and also doesn't know whether there is any rule for counting 28 the postal ballots He denied the suggestion that the postal ballots were counted correctly and the counting of the postal ballots was in accordance with law.
8. In this case altogether six witnesses examined on behalf of the respondents.
Respondent Witness-1, Paulus Surin Paulus Surin is wining candidate and in examination in chief on oath he stated that he contested the election of Jharkhand Legislative Assembly Elections, 2014 from 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency which was reserved for Scheduled Tribe and apart from him, 9 persons have filed their nomination paper and nomination paper of two persons were rejected namely, Jitendra Chik Baraik and Sukhram Heranz. Further stated that he along with 7 persons contested the election. He has stated that during scrutiny of nomination paper no candidates have given objection and entire scrutiny process was videographed.
In his cross-examination in para-4 stated that he had also contested election from 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency in the year 2009 on the symbol of Jharkhand Mukti Morcha and I was elected as a member of Jharkhand Legislative Assembly and he had contested the Jharkhand Legislative Assembly Elections, 2009 while he was in judicial custody in connection with a triple murder case.
He denied the suggestion that he was in judicial custody since he was a member of PLFI.
In para 8 and 9 of his cross-examination stated that he contested the Jharkhand Legislative Assembly Elections, 2014 from 59, Torpa (S.T.) Jharkhand Legislative Assembly Constituency but he do not remember the date on which he had filed my nomination papers and the scrutiny of the nomination papers was held on 15.11.2014.
In para-11 stated that he had not raised any 29 objection regarding the nomination papers of the any of the candidates who had contested the election.
In para-12 and 13 stated that these are my nomination papers earlier marked as Exhibit-3-series which I had filed and he had not submitted my caste certificate alongwith his nomination papers (Exhibit-3- series).
In para-14 stated that as per requirement, he have mentioned that three criminal cases are pending against him.
In para -15 At Page-8 of Exhibit-3, at Serial No.8, Sub-serial 'Kha' (III) (Kha) which pertains to the information regarding the property (a) self-acquired (b) inheritance, Column Nos. 2, 3, 4 and 5 are left blank.
Further stated that he was present during counting of the postal ballots.
In para-18 stated that he did not remember as to how many postal ballots were counted, but he remember that he have got 43 postal ballots. he did not remember the total number of postal ballots received by the Election Petitioner Koche Munda.
He denied the suggestion that whatever he have deposed, it is in order to defend my membership as the winning candidate of the Jharkhand Legislative Assembly.
Respondent Witness-2, Juber Ahmad In the examination-in-chief on oath he have not stated that during the scrutiny and counting of postal ballots, he was present.
Respondent WitnessNo.-4, Sakir Ansari He stated in examination in chief on oath that he was agent of Paulus Surin, 59, Torpa (S.T.) Legislative Assembly Constituency. He was present during counting of the votes on 23.12.2014 and entire proceeding was videographed.
In cross-examination he have stated that he could not say about the booth number in which he was 30 deputed and also could not remember the date on which the pooling for the 59, Torpa (S.T.) Legislative Assembly Constituency had taken place as more than 4 years has lapsed since then.
R.W.-5, Md. Tanvir Hussain He stated in examination in chief on oath that he made request and Paulus Surin allow him to take participate into counting at table no.14. Entire counting was held on 23.12.2014 and entire process of counting was videographed.
In cross-examination he stated that he was a worker of Jharkhand Mukti Morcha and he cannot say the total number of booths in 59, Torpa Assembly Constituency.
9. Learned counsel for the respondent no.1 during curse of arguments relied upon two judgments of the Hon'ble Supreme Court reported in 2012 (3) SCC 314 in the case of Mangani Lal Mandal Vs. Bishnu Deo Bhandari and the Hon'ble Supreme Court held as follows:-
11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100 (1)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100 (i)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-
observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100 (1)(d)(iv). For the election petitioner to succeed on such ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in: (1) Jabar Singh v. Genda Lal; (2) L.R. Shivaramagowda v. T.M. Chandrashekar; and (3) Uma Ballav Rath v. Maheshwar Mohanty.
12. Although the impugned judgment runs into 30 pages, but unfortunately it does not reflect any consideration on 31 the most vital aspect as to whether the non-disclosure of the information concerning the appellant's first wife and the dependent children born from that wedlock and their assets and liabilities has materially affected the result of the election insofar as it concerned the returned candidate. As a matter of fact, in the entire election petition there is no pleading at all that the suppression of the information by the returned candidate in the affidavit filed along with the nomination papers with regard to his first wife and dependent children from her and non-disclosure of their assets and liabilities has materially affected the result of the election. There is no issue framed in this regard nor is there any evidence let in by the election petitioner. The High Court has also not formed any opinion on this aspect.
and another judgment is reported in 2017 (2) SCC 487 in the case of Mairembam Prithaviraj Vs. Pukhrem Sharatchandra Singh and the relevant paragraph are 23 and 36 which are as follows:-
23. It is clear from the above judgment in Durai Muthuswami that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election Petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the Respondent to prove that result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the Appellant's nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected.
26. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void under Section 100 (1)
(d). There has to be further pleading and proof that the 32 result of the election of the returned candidate was materially affected. But, there would be no necessity of any proof in the event of the nomination of a returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not applicable to the facts of this case. The submission that Durai Muthuswami is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non- compliance of Section 100(1)(d). The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100(1)(d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted.
Learned counsel for the respondent no.1 submitted that in this case as the counsel for the election petitioner fairly submitted in the Court that he is not pressing the issue no.(vi) pertaining to counting of votes as he could not produce ample evidence during course of the trial of this petition. It was further submitted by the learned counsel for the respondent no.1 that now the plea taken by the learned counsel for the petitioner and in view of the provisions of Section 100(1)(C) of the R.P. Act issues no.(iii), (iv) (v) be decided in the election petition cannot be sustain in the eyes of law.
Learned counsel for the respondent no.1 during course of arguments further referred to the evidence of P.W.-2, Shashidhar Mandal, Returning Officer especially paragraph no.18 of examination in chief wherein categorically stated that on the basis of the report of the L.R.D.C. and S.D.O., Khunti and in terms of the Letter 33 No. 86-II dated 28-01-2013 issued under the signature of the Deputy Commissioner, Khunti that the caste certificate of Jitendra Chick Baraik issued on 25.08.2006 declaring him to be a member of Scheduled Tribe has been cancelled as he is Chick by caste.
So it cannot be said that the rejecting the nomination paper of Jitendra Chick Baraik by P.W.-2, Shashidhar Mandal, Returning Officer is arbitrarily manner.
Further referred to Exhibit-4, proved by P.W-2 and after going to the Exhibit-4 which is nomination paper of Clementia Hemrom in 03 sets consisting of 14 pages each and the candidate Clementia Hemrom has written her name in Hindi as "'dsesfUl;k gsej¨e' and she has put her signature in English and P.W.-2, Shashidhar Mandal, Returning Officer in his examination in chief at para 31 stated that there is no provision under Representation of Peoples Act for rejection of nomination paper on account of discrepancy in signature and he accepted the nomination paper of Clementia Hemrom.
So reason given by P.W.-2 is valid and the election petitioner also failed to prove the nomination paper improperly accepted by the Returning Officer.
Further referred to Para-33 of the examination in chief of P.W.-2 about the nomination paper of Paulus Dang which was marked as Exhibit-5, wherein mentioned that at internal page-8 of the nomination paper, at Serial No.8 which deals with the assets and liabilities, at Sub- serial 'Kha' (III) (Kha), the columns pertaining to Wife, Dependent No.1, Dependent No.2 and Dependent No.3 have been left blank and only Column No.1 pertaining to self has been filled up and P.W.-2 says that the columns have been filed as per the guidelines of Election Commission of India and properly accepted his nomination paper.
Further referred to para-34 of the examination in chief of P.W.-2 about the nomination paper of Vijay Aind 34 which was marked as Exhibit-6 which is concerned At internal page-8 of the nomination paper, at Serial No.8 which deals with the assets and liabilities, at Sub-serial 'Kha' (III) (Kha), the columns pertaining to Wife, Dependent No.1, Dependent No.2 and Dependent No.3 have been left blank and only Column No.1 pertaining to self has been filled up and P.W.-2 says that the columns have been filed as per the guidelines of Election Commission of India and properly accepted his nomination paper.
Further, learned counsel for the respondent no.1 has submitted that in view of the judgments of the Hon'ble Supreme Court (Supra) and evidence of P.W.-2, Returning Officer no case is made out under Section 100(1)(C) of the R.P. Act and the election petition is fit to be set aside.
10. Despite valid service of notice neither Puneet Hemrom, Clementia Hemrom and Paulus Dang appeared nor filed written statement and further pursuant to issuance of notices Samrom Topno, Suman Bhengra and Vijay Aind appeared but did not filed written statement.
So, basically this election petition contested between election petitioner and respondent no.1.
11. After hearing the parties and in view of the detail analysis of both oral and documentary evidences and provisions of law cited on behalf of the parties and written notes filed by the learned counsel for the petitioner and in view of the deposition of P.W.-2, Shashidhar Mandal, Returning Officer, it cannot be said that the Returning Officer had improperly rejected the nomination papers of Jitendra Chick Baraik and Sukhram Heranj and improperly accepted the nomination paper of Paulus Surin.
So, I am of the considered view that the petitioner is not able to prove the issues nos. (iii), (iv) & (v), so the findings recorded goes in favour of the respondent no. 1 and against the petitioner.
35So far other issues are concerned, the same has not been pressed and no finding is recorded.
12. Accordingly, the instant election petition is devoid of merit and is hereby dismissed. No order as to costs.
13. Registrar General is directed to send an authenticated copy of this judgment to Chief Election Commission of India and also substance of the decision to the Hon'ble Speaker, Jharkhand Vidhan Sabha, Ranchi.
(Anant Bijay Singh, J.) Jharkhand High Court,Ranchi.
Dated:- 17/12/2019 Fahim/NAFR