Kerala High Court
Prahladan vs Varkala Kahar on 26 March, 2011
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 21ST DAY OF AUGUST 2012/30TH SRAVANA 1934
El.Pet..No. 8 of 2011 ( )
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PETITIONER(S):
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PRAHLADAN, S/O.SREEDHARAN, AGED 55 YEARS
VALLIVILAYIL, PATHARAM.P.O., SOORANAD SOUTH
KUNNATHOOR TALUK, KOLLAM.
BY ADV. SRI.J.OM PRAKASH
RESPONDENT(S):
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VARKALA KAHAR, 10/278, (8/335),
PUTHENVEEDU, NADAYARA, VARKALA.P.O.
THIRUVANANTHAPURAM.
BY ADV. SRI.K.RAMAKUMAR (SR.)
BY ADV. SMT.SARITHA DAVID CHUNKATH
BY ADV. SMT.SMITHA GEORGE
BY ADV. SRI.C.R.REKHESH SHARMA
BY ADV. SRI.K.G.RAJEESH
BY ADV. SMT.ASHA BABU
BY ADV. SRI.T.RAMPRASAD UNNI
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 10-04-2012,
THE COURT ON 21-08-2012 DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-A: THE RECEIPT ISSUED BY THE ASSISTANT RETURNING OFFICER,
DATED 26.3.2011.
ANNEXURE-B: COPY OF THE ORDER OF THE RETURNING OFFICER IN RESPECT
OF ARO-13 DATED 28.3.2011.
ANNEXURE-C: COPY OF THE ORDER OF THE RETURNING OFFICER IN RESPECT
OF ARO-14 DATED 28.3.2011.
ANNEXURE-D: CHALAN NO.345 DATED 17.6.2011.
EXT.P1: THE RECEIPT ISSUED BY ASSISTANT RETURNING OFFICER DATED
26.3.2011.
EXT.P2: COPY OF ORDER OF THE RETURNING OFFICER IN RESPECT OF ARO-13
DATED 28.3.2011.
EXT.P3: COPY OF THE ORDER OF THE RETURNING OFFICER IN RESPECT OF
ARO-14 DATED 28.3.2011.
EXT.X1: ARO-13 NOMINATION PAPER OF ELECTION TO LEGISLATIVE ASSEMBLY
OF KERALA STATE OF SRI.PRAHALADAN DATED 25.3.2011.
EXT.X1(A): FORM 26 IN X1 (PAGE 9)
EXT.X1(B): FORM 26 IN X1 (PAGE 11)
EXT.X1(C): AFFIDAVIT ATTACHED TO FORM 26 IN EXT.X1.
EXT.X2: ARO-14 - NOMINATION PAPER OF ELECTION TO LEGISLATIVE
ASSEMBLY OF KERALA STATE OF SRI.PRAHALADAN DATED 25.3.2011.
EXT.X2a - FORM 26 IN X2 PAGE 11.
EXT.X2b - FORM 26 IN X2 PAGE 15.
EXT.X2c: AFFIDAVIT ATTACHED TO FORM 26 IN EXT.X2.
EXT.X3: VIDEO TAPE 1 - (SCRUTINY ON 28.3.2011 AT 127 VARKALA LEGISLATIVE
ASSEMBLY CONSTITUENCY)
EXT.X4: VIDEO TAPE 2 OF SCRUTINY ON 28.3.2011 AT 127 VARKALA LEGISLATIVE
ASSEMBLY CONSTITUENCY.
EXT.X5: PROCEEDINGS OF SCRUTINY OF NOMINATION BY RETURNING OFFICER,
127 - VARKALA LEGISLATIVE ASSEMBLY CONSTITUENCY.
//TRUE COPY//
P.A. TO JUDGE
C.R.
S.S.SATHEESACHANDRAN, J.
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E.P.NO.8 OF 2011
-----------------------------------
Dated this the 21st day of August, 2012
J U D G M E N T
The above election petition has been filed under Sections 80, 81, 83, 84 and 100(1)(c) of the Representation of People Act, 1951, hereinafter referred to as the "Act" challenging the election of the respondent from No.127 of Varkala Legislative Assembly Constituency in the General Election held on 13.04.2011.
2. Petitioner, as a candidate, submitted two nomination papers, numbered as ARO-13 and ARO-14, to contest the election from the above Constituency. He submitted his nomination as a candidate of the Bahujan Samaj Party, for short, the 'BSP', a registered National Political Party. Scrutiny of the nomination papers were conducted by the Returning Officer on 28.03.2011. The Returning Officer rejected both the nomination papers of the Elec.P.No.8/2011 2 petitioner holding that the affidavit in Form No.26, though signed by the Notary Public, was not duly attested since the stamp of the required value has not been affixed on such affidavit. Certified copy of the order rejecting the nomination paper ARO-13 is Annexure-B and the nomination paper ARO-14 is Annexure-C. There are two affidavits attached to Form No.26 and both affidavits were attested by the Notary Public but by mistake notary stamp was affixed only in one affidavit. When his nomination papers on submission were verified no formal defect was noticed or pointed out. Petitioner pointing out the above, at the time of scrutiny, requested for allowing him to affix the notary stamp and, thus, cure the defect, but it was declined. Petitioner had also pointed out the instruction in Chapter VI of the Hand Book for Returning Officers, which specifically states that if the prescribed affidavits have been filed, but are found or considered to be defective or containing false information, the nomination should not be rejected on that ground. Discarding and turning down the request of the petitioner, the Returning Officer rejected his nomination papers. What transpired as Elec.P.No.8/2011 3 above could be seen from the video recorded at the time of scrutiny, is the case of the petitioner. Orders passed by the Returning Officer rejecting his nomination papers are illegal and arbitrary, and defect noticed was not of a substantial character, and what has been pointed out by the Returning Officer, in fact, is not a defect at all, is his case. Even assuming that it is a defect, petitioner should have been granted an opportunity to cure such defect, is his further case. Nomination papers of the petitioner were improperly rejected by the Returning Officer, and as such, the election conducted on 13.04.2011, in which, the respondent was declared elected, is void ab initio, according to the petitioner. Improper rejection of the nomination papers of the petitioner has adversely and materially affected the result of the election, and as such, the election of the respondent as the returned candidate is liable to be set aside, is his case. Petitioner stating thus has sought for a declaration that the election of the respondent from No.127 of the Varkala Legislative Assembly Constituency is void and for setting aside the result of the election declared on 13.05.2011, with his costs. Elec.P.No.8/2011 4
3. Respondent filed a written statement resisting the challenge against his election as the returned candidate. Maintainability of the election petition was impeached contending that it does not disclose a cause of action. Petitioner has not filed any valid nomination as he has not complied with Rule 4-A of the Conduct of Election Rules, for short, the "Rules", in filing the nomination as it was not accompanied by an affidavit in Form No.26. Attestation of the Notary should be on the stamp of the required value and it should be affixed while signing by the Notary. If that has not been done it is not a curable mistake to make notarization legal. Since no valid nomination was presented, the Returning Officer has no alternative other than rejecting such invalid nomination. That fatal defect was not noticed at the time of submitting the nomination papers is immaterial where the defect is of a substantial nature, and the nomination papers were rightly rejected by the Returning Officer. Order of the Returning Officer, according to the respondent, is perfectly in order and consistent with the Elec.P.No.8/2011 5 provisions and Rules. Non-production of the two affidavits as part of the election petition while referring to the same as having been properly attested is fatal to the entertainability of the election petition since the respondent has been prejudiced from knowing about the contents of the affidavits. Petitioner has relied on the video recorded at the time of scrutiny but neither the details thereof nor the video is produced with the election petition, and, that would also show that the petition has not been properly presented. Verification of the petition is also not proper, and as such, the election petition is defective and liable to be rejected. Annexures produced are not properly verified and therefore there is non-compliance of the provisions of Section 83 of the Act, making the election petition defective and liable to the rejected. Petitioner has incorporated by reference in the election petition Hand Book published by the Election Commission, but the same has not been produced. The election petition, being not statutory, when he has relied on that book, he was bound to produce the same as an Annexure to the election petition. Non-production of the Hand Book renders the election Elec.P.No.8/2011 6 petition defective, and on that ground also, it is liable to be rejected. The order passed by the Returning Officer rejecting the nomination papers of the petitioner was perfectly correct since his nomination papers were not accompanied by the affidavits prescribed by the Rules. There were other candidates also in the field besides the respondent, but the petitioner has suppressed that fact in the election petition. Election of the respondent as the returned candidate is not liable to be declared void by reason of rejection of nomination papers of one of the candidates. Allegation raised that the rejection of the petitioner's nomination papers has materially affected the election, is absolutely unsustainable and not supported by any material facts pleaded in the petition. There is no ground to set aside the election of the respondent as the returned candidate, and serious prejudice would be caused to the electorate if the election is set aside on the flimsy ground as the Constituency will be left unrepresented and the majority will reflected in favour of the respondent will be seriously and prejudicially affected, is the further contention of the respondent to urge for dismissal of the Elec.P.No.8/2011 7 election petition, with his costs.
4. On the pleadings of the parties as above, the following issues have been raised for trial:-
(1) Is not the election petition maintainable ? (2) Has the nomination filed by the petitioner to contest the election from No.127 of the Varkala Legislative Assembly Constituency been improperly rejected ?
(3) Is the election of the respondent as the returned candidate from No.127 of Varkala Legislative Assembly Constituency liable to be declared as void on account of improper rejection of the nomination of the petitioner as alleged ? (4) Further reliefs and costs.
5. The evidence in the election petition consists of PWs.1 and 2 and Exts.P1 to P3 for the petitioner. PW1 is the petitioner and PW2, the Returning Officer. Exts.X1 to X5 documents summoned were also exhibited. No evidence was adduced by the respondent.
Elec.P.No.8/2011 8
6. Before considering the issues involved on the pleadings and evidence let in the case, it has to be stated that the respondent raising preliminary objections to the entertainability of the petition had urged for its rejection as not maintainable. After hearing both sides, by order dated 21.12.2011, such preliminary objections were overruled making it clear that the observations made in that order shall not have any bearing in the final decision of the election petition. That order was challenged by the respondent in appeal seeking Special Leave before the Supreme Court. The Supreme Court turned down the Special Leave Petition, but, making it clear that the observations made by this Court in its order negativing the preliminary objections with respect to the non-affixing of the required stamp when the affidavit was attested by the Notary Public shall be treated only for the purposes of consideration of the application under Order VII Rule 11 of the Code of Civil Procedure, for short, the 'Code', and shall not have any bearing at the time of consideration of the matter finally. The Supreme Court has further observed in that order thus:
Elec.P.No.8/2011 9
"All issues and aspects concerning the validity and legality of the order of the Returning Officer rejecting the nomination of respondent No.1 are kept open for consideration at the time of final hearing of the Election Petition."
The issues framed are accordingly considered taking note of the observations made above.
7. Issue No.(1):
Maintainability of the election petition has been impeached on various grounds, many of them urged as preliminary objections to the entertainability of the election petition had been considered and negatived earlier. All preliminary objections raised over the entertainability of the petition had been negatived and the petition has proceeded with trial for its disposal on merits. Observations made in that order turning down the preliminary objections, as already indicted, shall not be treated as decisive or final in adjudicating the petition on its merits. The question of maintainability of the election petition Elec.P.No.8/2011 10 has to be examined on the basis whether the respondent has any sustainable ground to canvass that the petition is not maintainable. What has been canvassed to impeach the maintainability of the election petition contending that it has not been properly filed is that when reference was made to the Hand Book for Returning Officers published by the Election Commission to sustain the case of the petitioner that he had pointed out the relevant provision thereof to the Returning Officer at the time of scrutiny of the nomination papers, it should have been produced as a necessary document with the election petition. When that is not done, it is fatal to the election petition and any reference to that Hand Book with reference to the case canvassed by the petitioner over the rejection of his nomination papers is improper and it would cause serious prejudice to the respondent. Hand Book for Returning Officers published by the Election Commission is not statutory and where it is not produced with the election petition, it cannot be relied upon for any purpose, is the submission of the learned senior counsel for the respondent to contend that non-production of that document Elec.P.No.8/2011 11 is fatal to the election petition rendering it not maintainable. Reliance is placed on M.Karunanidhi v. Dr.H.V.Hande and Others ((1983) 2 SCC 473), Mulayam Singh Yadav v. Dharam Pal Yadav and Others ((2001) 7 SCC 98), M.I.Shanavas v. Returning Officer & Others (1987 (2) KLT 530, U.S.Sasidharan v. K.Karunakaran (1987 (2) KLT 1001), Manohar Joshi v. Nitin Bhaurao Patil and another (AIR 1996 SC 796) and Harkirat Singh v. Amrinder Singh ((2005) 13 SCC 511) to support the challenge canvassed as above to hold that the election petition is not maintainable. The decisions relied by the counsel, as above, do not call for a critical scrutiny in the given facts of the case, to examine the question whether Hand Book issued to the Returning Officers, which is referred to in the election petition should have been produced with such petition when it has been relied upon by the petitioner to sustain the challenge raised against the rejection of his nomination papers by the Returning Officer, as improper. The learned senior counsel has adverted to the decisions as aforesaid on the premise that the Hand Book for Returning officers being Elec.P.No.8/2011 12 non-statutory where it is referred to in the election petition and relied upon its production with the petition is necessary. The Apex Court in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others ((1978) 1 SCC 405) has considered the ambit and scope of Election Commission's powers as vested in that Commission under Article 324 of the Constitution of India over the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and the elections to the offices of the President and the Vice-President held under the Constitution.
Such powers enjoined in the conducting of such elections by the Election Commission, it has been held, are to be given wide scope and it operates in areas left unoccupied by legislation, but, with the limitations that in exercise of such powers the Election Commission has to act not only bona fide but subject to rules of natural justice. When that be so, the Hand Book of instructions given to the Returning Officers by the Election Commission cannot be assailed as having no statutory Elec.P.No.8/2011 13 binding force as of law for the reason that such instructions have not been legislated upon but issued only by the Election Commission. Any how, whether the Hand Book of instructions has binding force in the conduct of election is not at all open to doubt. In Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite-Patil (AIR 2009 SC 2975), that too, with reference to the scrutiny of nomination papers the importance and significance of the Hand Book for Returning Officers issued by the Election Commission has been considered by the Apex Court observing thus in paragraph 30:
30. Indisputably, the said instructions are binding being statutory in nature.
Such observation was made following the decision rendered earlier in Rakesh Kumar v. Sunil Kumar ((1999) 2 SCC
489). However, in a later decision, Ramesh Rout v. Rabindra Nath Rout (2011 (13) SCALE 423), the Supreme court striking a different note that the Hand Book does not have Elec.P.No.8/2011 14 statutory character has however emphasised its binding force on the Returning Officers.
8. The question whether the Hand Book of instructions issued by the Election Commission has statutory character or not has little significance in impeaching the maintainability of the election petition for non-production of that Hand Book as an annexure to the election petition. Where the Hand Book of instructions given by the Election Commission to the Returning Officers has been issued for providing guidelines for the preparation of the electoral rolls and in the conduct of elections, in exercise of the powers vested on the Election Commission under Article 324 (1) of the Constitution, such instructions have the full force of law. Strict compliance of such instructions by the Returning Officers in matters covered by the Hand Book, is called for. When such guidelines or instructions covered by the Hand Book have the force of law, as the same having been issued by the Election Commission, for conduct of elections it is futile to contend that production of Hand Book with the Election Elec.P.No.8/2011 15 petition is essential when reference to any such guidelines is made in the election petition to sustain the grounds canvassed of in such petition.
9. The learned senior counsel for the respondent adverting to the evidence of the petitioner, PW1, with respect to some of the averments made in the petition has attempted to project a case that the case presented by him over the affidavit filed with his nomination papers as set forth in the petition is conflicting with his version in evidence and that would also render his election petition not maintainable. I do not find any merit in the challenge so canvassed, which, at the most, is something relevant in the realm of appreciation of evidence over the materials produced having regard to the averments made in the petition but not a matter touching upon the maintainability of the petition. Suffice to state, that challenge canvassed against the maintainability of the petition has no merit. Election petition is found to be perfectly maintainable and the issue is answered Elec.P.No.8/2011 16 accordingly.
10. Issue No.(2):
Petitioner has been examined as PW1. He has given evidence that his nomination papers submitted were received without pointing out any defect directing rectification. He would also state that at the time of scrutiny of the nomination papers, he had pointed out the relevant provisions of the Hand Book for Returning Officers, the instructions given to the Returning Officers by the Election Commission, seeking time to provide him an opportunity to cure the defect pointed out in the affixture of stamps for notarization of his affidavit produced with the nomination papers. The Returning Officer turned down that request and rejected his nomination papers, two sets, is his evidence. The Returning Officer is examined as PW2. He has produced two nomination papers of the petitioner, ARO-13 and ARO-14, which had been rejected as defective. Exts.X1 and X2 are those nomination papers. He has given evidence that the Election Commission has given specific instructions that the Elec.P.No.8/2011 17 nomination paper should contain duly attested affidavits, and, if not, they are to be rejected. While admitting that the affidavit to be furnished with the nomination paper has been insisted as per the provisions covered by Section 33-A of the Act, he would state that a defect in the affidavit so filed with the nomination paper is fatal and it has to be rejected, which, according to him, is the instruction given by the Election Commission. The Returning Officer has also denied the suggestion made that a request was made by the petitioner at the time of scrutiny to cure the defect pointed out in his affidavit. While conceding that the Hand Book of instructions issued to the Returning Officers contained instructions that even if the affidavit is found to be defective, for that reason, the nomination paper is not liable to be rejected, PW2 asserted that subsequently instructions otherwise have been received from the Election Commission. Though he had asserted so, instructions, if any, so received, have not been tendered.
11. Exts.X1 and X2 are the two sets of nomination papers Elec.P.No.8/2011 18 submitted by the petitioner to contest the election as a candidate from Varkala Constituency. In both sets of his nomination papers, his affidavit in Form No.26 appended to the respective nomination paper has been attested to by a Notary Public, but, no stamp as prescribed for notarization has been affixed. The affidavits since not affixed with stamp for notarization are not duly attested by the Notary, was the reason for rejection of the nomination papers by the Returning Officer. The decision for rejecting the nomination papers as stated in part 5 of Exts.X1 and X2 reads thus:
"Nomination is rejected because the affidavit in Form No.26 is not duly attested by the Notary (the stamp for required value was not affixed while the signing was done by the Notary.)"
Whether the rejection of the nomination papers for the reason stated by the Returning Officer is proper and sustainable under law, or does it amount to improper rejection of the nomination papers, is the question emerging for consideration in this Elec.P.No.8/2011 19 petition.
12. Rule 4-A of the Conduct of Election Rules, 1961, which has been inserted under S.O.935 (E) and brought into force with effect from 03.09.2002 mandates the filing of the affidavit in Form No.26 by the candidate at the time of delivering to the Returning Officer the nomination paper. Rule 4-A of the above Rules reads thus:
[4-A. Form of affidavit to be filed at the time of delivering nomination papers:-
The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the First class or a Notary in Form 26] The above rule mandates furnishing of particulars whether the candidate who files the nomination paper has suffered any conviction and whether he is an accused of any offence punishable with imprisonment for two years or more, directing Elec.P.No.8/2011 20 him to furnish full particulars of such matters, as prescribed in the Form as an affidavit with his nomination paper. Though both sets of nomination papers filed by the present petitioner contained affidavit by him in Form No.26, furnishing the full particulars, and duly signed before a Notary Public, it was not duly attested by the Notary since the stamp for required value was not affixed in such affidavit while the Notary signed such affidavits, is the reason stated by the Returning Officer to reject the nomination papers. On perusal of the nomination papers of the petitioner exhibited as Exts.X1 and X2, what could be noticed is that the Notary has attested the affidavit in Form No.26 with the respective nomination paper filed by the petitioner but the stamp for notarization was affixed in two other affidavits, through one such affidavit alone was required to be furnished with the nomination papers. The nomination papers contain the required stamp fee when affidavits of the petitioner were notarized by the Notary Public but the stamp was affixed not in Form No.26 affidavit but in the two other affidavits, which do not require such affixation of stamps nor even notarization by the Elec.P.No.8/2011 21 Notary Public, is what is evident from scrutiny of the nomination papers. In Ext.X1 nomination paper (ARO-13), Form No.26 affidavits, two in number, are attached, and they are Exts.X1(a) and X1(b). Ext.X1(a) is sworn to before a Notary Public. The other two affidavits filed with that nomination paper containing the stamp affixed for notarization are Ext.X1(c). What is further noticed is that though only one such affidavit under Ext.X1(c) was required with the nomination paper, petitioner has filed two affidavits, with both of them, duly stamped for notarization. Stamps which ought to have been affixed on Form No.26 affidavit, it seems, was affixed in the second affidavits referred to above. In the other, Ext.X1 nomination paper (ARO-14), Form No.26 affidavit is Ext.X2(b). Here also two other affidavits have been filed by the petitioner in compliance with the mandate under Section 33 of the Act, and both such affidavits stamped for notarization. Affixing of stamps in the aforesaid two affidavits, of which, one alone was required, that too without any notarization, but non-affixture of stamp for notarization in the affidavit in Form No.26, Ext.X2(b), evidently, led to rejection of his Elec.P.No.8/2011 22 nomination papers by the Returning Officer on the premise that required stamp for notarization has not been affixed in the affidavit of Form No.26, and as such, there is no due attestation by Notary.
13. Affidavit in Form No.26 to be filed with the nomination is one mandated by sub section (2) of Section 33A of the Act and Rule 4-A of the Rules referred to above. Sub section (2) of Section 33A of the Act states thus:
"The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning officer the nomination paper under sub section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub section (1)."
Sub section (1) of the aforesaid Section mandates for furnishing of information by the candidate, apart from those required to be furnished under the Act and the Rules, as to whether Elec.P.No.8/2011 23
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the Court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of Section 8] and sentenced to imprisonment for one year or more.
Section 8 of the Act contemplates of disqualification on ground of corrupt practices. The candidate who submits the nomination is accused of any offence punishable with imprisonment for two years or more and the case thereof after framing of charge is pending before the court, and also where he has suffered conviction and sentenced to imprisonment for one year or more other than an offence referred to in sub sections (1) to (3) of Section 8, has to furnish information thereof in the affidavit as prescribed in Form No.26 appended to the Rules. That is the mandatory requirement to be complied with for submitting of valid nomination to contest the election. As already indicated Rule 4-A of the Rules mandates that the affidavit furnishing such Elec.P.No.8/2011 24 information in Form No.26 has to be sworn by the candidate before the Magistrate of the First Class or Notary. Indisputably, the affidavit in Form No.26 produced by the petitioner with his nomination papers, both of them, contained affidavits in Form No.26 duly sworn before a Notary but in such affidavit stamp for notarization was not affixed is the defect to hold that there was no due attestation of the affidavit by the Notary Public and for that reason the nomination papers were rejected.
14. Section 36 of the Act deals with the scrutiny of the nomination papers. What are the circumstances under which a nomination paper can be rejected are covered by sub section (2) of that Section, which reads thus:
"(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, [reject] any nomination on any of the following grounds:-
Elec.P.No.8/2011 25
[(a) [that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:-
Article 84, 102, 173 and 191, [Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)]; or
(b) that there has been a failure to comply with any of the provisions of section 33 or 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.] Sub section (4) of the aforesaid Section is also quite relevant and material in deciding the question whether the rejection of the nomination paper of the petitioner by the Returning officer was proper or improper. That sub section reads thus:
"(4). The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character."
Elec.P.No.8/2011 26
15. So, on the facts and circumstances presented in the case, the crucial question that emerges for consideration is whether the non-affixing of the stamp for notarization in the affidavit in Form No.26 submitted with the nomination paper when such affidavit was sworn to before the Notary Public, is it a defect of substantial character automatically warranting rejection of the nomination paper. If we examine sub section (2)
(b) of Section 36 of the Act, the failure should be one as to non- compliance with any of the provisions of Section 33 or Section 34 of the Act. Section 33 of the Act contemplates of presentation of nomination paper and requirements of a valid nomination and Section 34 of the Act, the sum to be deposited with such nomination paper. What has been newly brought in under Section 33A of the Act with respect to furnishing of information by way of an affidavit sworn to before a Magistrate or a Notary in Form No.26 on the matters covered by that Section to throw light whether the candidate has got any criminal antecedents, has not been included in Section 36 (2) (b) of the Act necessarily has to be taken note of in examining whether any defect relating Elec.P.No.8/2011 27 to Form No.26 affidavit filed with the nomination paper is a defect of substantial character warranting outright rejection of the nomination paper.
16. Where the Statute specifically provides what are the circumstances under which failure to comply with any prescription under the Act or Rules should give rise to a rejection of the nomination paper automatically, any other defect or failure to comply with any other statutory provision has to be examined with reference to the question whether such defect noticed is curable and permitted to be rectified. In the context, the relevant guidelines given to the Returning Officers over the scrutiny of nomination papers as covered under the Hand Book for Returning Officers published by the Election Commission deserve to be taken note of. Chapter VI of the Hand Book deals with the scrutiny of nominations by the Returning Officer. Paragraph 2 of that Chapter emphasizes that scrutiny of nomination papers is a quasi judicial function and it has to be discharged by the Returning officers with the highest judicial Elec.P.No.8/2011 28 standards. Paragraph 6 spells out that even if no objection is raised over the nomination paper the Returning Officer has to satisfy that it is valid in law. If any objection is raised, he has to conduct a summary enquiry to decide the question of objection to consider whether the nomination paper is valid or invalid. Paragraph 7 cautions the Returning Officer that there is a presumption that every nomination paper is valid unless the contrary is prima facie obvious and has been made out. If at all there is any reasonable doubt it is further stated that the benefit of doubt should go to the candidate concerned and the nomination paper should be held to be valid. It further reminds the Returning Officer if a candidate's nomination paper is improperly rejected and he is prevented thereby from contesting the election there is a legal presumption that the result of the election has been materially affected by such improper rejection and the election will, therefore, be set aside. What are the defects which could be treated as defects of substantial nature giving certain illustrations are covered by paragraph 9.6. In such illustrations among others failure to file affidavits in Form No.26 Elec.P.No.8/2011 29 and affidavits provided by Election Commission of India for disclosing criminal antecedents, assets, liability and educational qualification are included as defects of substantial nature. Paragraph 10 deals with the grounds for rejection of nomination papers. Paragraph 10.1(viii) says that if the prescribed affidavits have not been filed at all by the candidates it is a ground for rejection. However that ground for rejection is qualified with a rider, which is of significance, and that reads thus:
"If the prescribed affidavits have been filed, but are found or considered to be defective or containing false information, the nomination should not be rejected on this ground."
17. Another material aspect to be taken note of is the relevancy and significance of the check list prepared at the time of the submission of the nomination papers. Duplicate of the check list forms part of the nomination paper and original thereof is given to the candidate/petitioner who submits the nomination paper. The issuance of the check list to a candidate filing a nomination paper has been introduced by a notification Elec.P.No.8/2011 30 issued by the Election Commission. The nomination papers, both of them, filed by the candidate/proposer contain the check list prepared by the Assistant Returning Officer. That check list demands primary satisfaction of the Returning Officer over the documents required to be produced with the nomination paper. If any of the documents has not been filed, it requires the Returning Officer to clearly state in the bottom of the check list fixing the time limit by which such documents can be submitted. Such check list is required to be signed both by the Returning Officer receiving the nomination paper and also the candidate/proposer as to receiving it. Notification issued by the Election Commission dated 10th February, 2009 in that regard states that the check list serves dual purpose acknowledging the receipt of the document as well as notice as directed in the Hand Book. If a document is filed subsequent to the filing of the nomination an acknowledgment to that effect is issued to the candidate mentioning the date and time and that is also to be indicated appropriately in the check list.
Elec.P.No.8/2011 31
18. Going through the check list forming part of the nomination paper filed by the petitioner, it is seen that no defect was noticed by the Returning officer who received the nomination; and, production of every document including the affidavit in Form No.26 has been duly acknowledged without noticing any defect at all, leave alone, directing any rectification of defect in such document.
19. The question whether the rejection of the nomination paper of the petitioner for the reason that Form No.26 affidavit produced with the nomination paper sworn to before a Notary was not stamped for notarization was proper or improper has to be adjudged and examined with reference to the provisions covered by Sections 33(1) and 36(1) of the Act, Rules 4 and 4-A of the Conduct of Election Rules, Form 2B and paragraph 10.1
(viii) of the guidelines issued to the Returning Officers in the Hand Book. In the context, it is also to be pointed out that the Returning officer examined as PW2, when his attention was drawn to the guidelines given in the Hand Book, particularly, Elec.P.No.8/2011 32 paragraph 10.1(viii) that a defect in the affidavit should not be a ground for rejection of the nomination conceding that guideline asserted that subsequently contra instructions have been given by the Election Commission. That assertion made by him that instructions conflicting with that covered by paragraph 10.1(viii) of the Hand Book is nothing but an explanation canvassed of, which has no merit, to justify the rejection of the nomination papers for not following the guidelines given in paragraph 10.1
(viii) of the Hand Book.
20. As already indicated Form No.26 affidavit was sworn to before a Notary Public, but, stamp for notarization however happened to be affixed in a different affidavit produced with the nomination paper. When that be so, it was clearly a case that non-affixing the stamp for notarization in Form No.26 affidavit was only a mistake, and such mistake was not a defect of substantial character. Rejection of the nomination papers of the petitioner on the ground that it was not duly attested by the Notary for the reason of non-affixing of stamp for notarization in Elec.P.No.8/2011 33 Form No.26 affidavit was improper. When Form No.26 affidavit was filed with the nomination paper duly signed by a Notary even if stamp for notarization has not been affixed in such affidavit, but only in the other affidavit produced, still, it is a case where an opportunity for affixing of the required stamp for notarization of the affidavit should have been extended to the petitioner having regard to the instructions given under the guidelines in paragraph 10.1(viii) of the Hand Book issued to the Returning Officers. The Returning officer has rejected the nomination paper of the petitioner on a ground which is not sustainable under law. Having regard to the provisions of the Act, Rules and guidelines under the Hand Book it has to be concluded that the nomination papers of the petitioner have been improperly rejected.
21. The learned senior counsel appearing for the respondent/returned candidate has relied on Rattan Anmol Singh and another v. Ch.Atma Ram and others (AIR 1954 SC 510) and V.R.Kamath v. Divisional Controller, Elec.P.No.8/2011 34 Karnataka State Road Transport Corporation and others (AIR 1997 Karnataka 275) to contend that an affidavit cannot be said to be duly attested when it has not been notarized in accordance with the provisions of law. The question whether it was properly notarized or not in relation to acceptance or rejection of a nomination paper has to be examined and appreciated with reference to the provisions of the Act, Rules and guidelines issued by the Election Commission. Rule 4-A of the Conduct of Election Rules only mandates of signing of an affidavit before a Magistrate or a Notary Public. Even if an affidavit is sworn to before the Notary Public is not affixed with the stamp for notarization, in the light of the guidelines covered by 10.1(viii) to the Returning Officers in the Hand Book issued by the Election Commission the nomination paper is not to be rejected, and if it is so rejected it is improper. Success of a returned candidate is not to be interfered with unless there are strong and compelling circumstances as it would amount to setting at naught the decision of the majority of the electorate was another ground canvassed by the learned counsel relying on Elec.P.No.8/2011 35 Ram Sukh v. Dinesh Aggarwal ((2009) 10 SCC 541). In a case where election is challenged on the ground of improper rejection of nomination paper the scope of enquiry is limited. The Apex Court repelling a contention similarly canvassed has stated thus in Anil Baluni v. Surendra Singh Nagi (AIR 2005 SC 3987):
"The election petition has been filed on the ground that the appellant's nomination papers had been improperly rejected, which is a ground contemplated by Section 100(1)(c) of the Act. In such a case the only issue before the Court is to a examine the correctness and propriety of the order by which the nomination papers of a candidate are rejected and the scope of inquiry is limited to the said consideration."
22. The Returning Officer has improperly rejected the nomination papers of the petitioner, and the reason for such rejection, non-affixing of the stamp for notarization in Form No.26 affidavit, is found to be unsustainable. Issue found accordingly.
Elec.P.No.8/2011 36
23. Issue No.(3):
In the light of the finding entered on issue No.2 that the rejection of the nomination papers of the petitioner by the Returning Officer is improper it follows that the election of the respondent as the returned candidate is liable to be set aside.
In the result, election of the respondent as the returned candidate from No.127 of Varkala Legislative Assembly Constituency is declared void.
Considering the facts and circumstances involved in the case parties are directed to suffer their respective costs.
Registry shall communicate the substance of the decision in the election petition to the Speaker of the Legislative Assembly and the Election Commission, and an authenticated copy of the judgment shall be forwarded to the Election Commission.
Election Petition is allowed.
S.S.SATHEESACHANDRAN JUDGE prp