Allahabad High Court
Anil Kumar Bind @ Anil Kumar vs Pankaj on 15 September, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:178197 RESERVED Court No. - 1 Case :- ELECTION PETITION No. - 7 of 2022 Petitioner :- Anil Kumar Bind @ Anil Kumar Respondent :- Pankaj Counsel for Petitioner :- Anil Kumar Bind,Anil Kumar Bind (In Person) Counsel for Respondent :- Jahar Singh (Kashyap),Alok Ranjan,Bishram Molai Ram Prajapati,Jitendra Ojha,Shive Datta Yadav Hon'ble Jayant Banerji, J.
1. The aforesaid election petition has been preferred under Sections 80, 80-A, 81 and 100 of the Representation of the People Act, 19511 seeking declaration of the election of the returned candidate from 368 Legislative Constituency, Mungra Badshahpur, District Jaunpur of Samajwadi Party, namely, Pankaj s/o Phoolchand, r/o Village-Chakanawabad, Post Barahata, District Jaunpur in Uttar Pradesh General Legislative Assembly Election-2022, as void on the ground that the nomination of the respondent, Pankaj, was wrongly and improperly accepted and two nomination forms of candidates namely, Dileep Rai Balwani and Sunita Devi were wrongly and improperly rejected. It is pertinent to mention at the outset that neither Dileep Rai Balwani nor Sunita Devi have been impleaded in this petition.
2. Briefly, it is stated in the petition that the election schedule for Uttar Pradesh General Legislative Assembly Election-2022 was announced by the Election Commission of India on 08.01.2022. On 14.02.2022, the petitioner attempted to submit his nomination form as independent candidate before the concerned Returning Officer but he refused to accept the nomination without the physical appearance of all the ten proposers, and directed the petitioner to produce the ten proposers and that is why the nomination form of the petitioner could not be submitted on 14.02.2022. On 16.02.2022, the Samajwadi Party changed its earlier election candidate Pankaj s/o Phoolchand (respondent no.1 herein) and designated Dileep Rai Balwani s/o Shyam Bali as the new election candidate for the aforesaid legislative constituency by issuing an authority letter to the concerned Returning Officer. On 17.02.2022, the petitioner submitted his nomination form as an independent candidate for the aforesaid legislative constituency alongwith all requisite papers and presence of ten proposers and the nomination receipt was issued by the concerned Returning Officer on the same day. Both the candidates of Samajwadi Party, firstly Pankaj s/o Phoolchand, and secondly, Dileep Rai Balwani s/o Shyam Bali, submitted their nomination forms before the concerned Returning Officer on 17.02.2022, which was the last date for submission of the nomination form till 3:00 p.m. On 18.02.2022, scrutiny of nomination forms was conducted and declaration of accepted and rejected nominations could not be made on 18.02.2022 till 8:00 p.m. even though such declaration of remaining 8 other legislative constituencies of the District Jaunpur, except the aforesaid legislative constituency, was made at 3:00 p.m. on that day. The declaration of accepted and rejected nomination was made at 9:00 p.m. at night for the aforesaid legislative constituency.
3. It is stated that the result of declaration of accepted and rejected nomination forms disclosed that the nomination form of Pankaj (respondent no.1) was wrongly and improperly accepted. Two nomination forms were allegedly wrongly and improperly rejected, firstly of Dileep Rai Balwani from Samajwadi Party and secondly, of Sunita Devi, who was an independent candidate. It is stated that the aforesaid nomination forms were accepted and rejected because the Returning Officer and other authorities were under pressure of high profile politicians.
4. It is stated that the nomination form of the respondent from Samajwadi Party was wrongly and improperly accepted because the father of the respondent was posted as Civil Judge in the Uttar Pradesh Judicial Service and it seems that there is 'doubtful' good relation between Phoolchand, who is the father of the respondent and the Returning Officer, which caused biased conduct by the Returning Officer. On 21.02.2022, after withdrawal of nomination form by some candidates, the petitioner was issued the election symbol of 'Coconut farm'. It is stated that on 22.02.2022, the Returning Officer of the aforesaid constituency issued a letter to the petitioner to join a meeting on 22.02.2022. The petitioner wrote and handed over an application to the Returning Officer of the aforesaid constituency for providing security but no security was provided to him till the election proceedings even though the petitioner spoke many times to the Returning Officer and the District Magistrate, Jaunpur that in the absence of security, the petitioner could not organize public campaign meeting which is wrong, improper and arbitrary and violative of Articles 14 and 16 of the Constitution of India.
5. It is stated that on 22.02.2022, the concerned Returning Officer provided a Candidate Identification Card to all other candidates but the petitioner was not intimated about that even though the petitioner was present on 22.02.2022 in the meeting called by the Returning Officer. On 23.02.2022, the petitioner submitted an online application form for vehicle pass for campaigning and canvassing for the period from 22.02.2023 to 05.03.2022, however, the application for vehicle pass was rejected by the concerned Returning Officer and for this reason the petitioner could not move and organize campaigning and canvassing.
6. It is stated that the result of the election was declared on 10.03.2022 which was published in newspaper 'Hindustan' on 11.03.2022 showing that the petitioner had obtained 930 votes.
7. It is stated that on 29.03.2022, the petitioner filed an application under the Right to Information Act before the Public Information Officer of the District Electoral Office, District Jaunpur seeking information in respect of security.
8. It is stated that the second candidate of Samajwadi Party, namely Dileep Rai Balwani, is not filing any election petition because he is in collusion with high profile politicians of Samajwadi Party, and that if any other candidate of a party other than Samajwadi Party had become the returned candidate and won the aforesaid election, then the party would have permitted him to file an election petition. It is stated that as per the direction of the Election Commission of India, if more than one candidate submits nomination forms on behalf of one party for the same constituency, then the latest form shall be accepted and the other shall be rejected.
9. In the written statement filed by the respondent, it has been stated that the election of the aforesaid assembly constituency was scheduled in Phase-VII in terms of the election schedule announced on 08.01.2022. It is stated that the respondent was declared candidate on behalf of the Samajwadi Party and Forms "A" and "B" were issued to him. On 16.02.2022, the party changed its decision and declared one Dileep Rai Balwani as Samajwadi Party candidate. It is stated that on the same day, i.e. on 16.02.2022, the party again changed its decision and declared the respondent Pankaj as Samajwadi Party in place of Dileep Rai Balwani and Forms "A" and "B" were issued to him which fact has not been disclosed by the petitioner in the election petition. It is stated that the respondent-Pankaj filed his nomination as a candidate of Samajwadi Party on 17.02.2022 and, thereafter, Dileep Rai Balwani also filed his nomination claiming himself to be a candidate of Samajwadi Party. It is stated that since the party had changed its candidate and declared the respondent as the candidate of Samajwadi Party, he filed his nomination but, later on, maliciously Dileep Rai Balwani also filed his nomination claiming to be a candidate of Samajwadi Party. Therefore, the concerned Returning Officer rejected the nomination of Dileep Rai Balwani and accepted the nomination of the respondent as he had first filed nomination as the candidate of Samajwadi Party. It is stated that the voting for the aforesaid assembly constituency was held on 07.03.2022 and the counting of votes was held on 10.03.2022. It is stated that by a letter dated 16.02.2022 itself, the candidature of Dileep Rai Balwani was cancelled and the respondent was declared as Samajwadi Party candidate. It is stated that neither Dileep Rai Balwani nor Sunita Devi have come forward against the rejection of their nomination and the petitioner has challenged the election of the respondent-Pankaj on the ground that nominations of Dileep Rai Balwani and Sunita Devi were wrongly and improperly rejected, and that the nomination of the respondent was wrongly and improperly accepted.
10. It has been stated that the petitioner has not impleaded Dileep Rai Balwani and Sunita Devi as parties in the election petition and as such the election petition is liable to be dismissed on the ground of non-joinder of necessary parties. It is stated that the allegation made by the petitioner would constitute an allegation of "corrupt practice" as defined in Section 123 of the Act of 1951. The proviso to sub-section (1) of Section 83 of the Act of 1951 mandates that such allegation must be accompanied by an affidavit in accordance with Form-25 as required in Rule 94-A of the Conduct of Election Rules, 19612 but no such affidavit has been filed in Form-25, and hence the election petition is liable to be dismissed as not maintainable being in total non-compliance of Section 83 of the Act of 1951.
11. By the order of the Court dated 15.09.2022, the parties were permitted to file their respective evidence and to submit proposed issues. The counsel for the respondent filed an application alongwith the list of documents and, thereafter, pursuant to an order dated 30.09.2022, the petitioner also filed the proposed issues and list of documents.
12. The petitioner filed an affidavit dated 09.10.2022 enclosing therewith documentary evidences which are as follows:-
(i) Paper Nos.A-36/1 to A-36/4 are attested true copies of Forms "A" and "B" issued by the President of Samajwadi Party and its Secretary General respectively, both dated 16.02.2022, naming the respondent as the approved candidate of the Samajwadi Party.
(ii) Paper Nos.A-37/1 to A-37/4 are attested true copies of Forms "A" and "B", both dated 16.02.2022, approving the name of Dileep Rai Balwani as the candidate of the Samajwadi Party.
(iii) Paper Nos.A-38/1 to A-38/4 are attested true copies of Forms "A" and "B", both dated 16.02.2022, approving the name of the respondent as the candidate of the Samajwadi Party, while rescinding the name of Dileep Rai Balwani.
(iv) Paper Nos.A-39/1 to A-39/4 are attested true copies of Forms "A" and "B", both dated 16.02.2022, approving the name of Dileep Rai Balwani as the candidate for the Samajwadi Party, while rescinding the name of the respondent.
(v) Paper No.A-40/1 is an attested true copy of a check-list of document in connection with filing of nomination of the respondent dated 17.02.2022 at 12:30 p.m.
(vi) Paper No.A-41/1 is an attested true copy of a check-list of document in connection with filing of nomination of Dileep Rai Balwani dated 17.02.2022 at 2:48 p.m.
(vii) Paper No.A-42/1 is the information furnished by the Deputy District Election Officer, Jaunpur dated 02.09.2022 under the Right to Information Act, 2005, addressed to the petitioner regarding security guard.
(viii) Paper No.A-42/2 is the registered cover addressed to the petitioner by the office of the District Election Officer, Jaunpur.
13. In the list of witnesses filed on behalf of the petitioner, the petitioner proposed himself and one Mattu Lal s/o Sitaram as witnesses.
14. The list of documents submitted on behalf of the respondent are as follows:-
(i) Paper No.A-22/1, which is a certified copy of a letter dated 16.02.2022 addressed by the Chief General Secretary of Samajwadi Party to the Returning Officer of the aforesaid assembly constituency approving the name of the respondent in place of Dileep Rai Balwani as the candidate for the Samajwadi Party.
(ii) Paper Nos.A-23/1 to A-23/4 are certified copies of Forms "A" and "B", both dated 16.02.2022, showing the name of the respondent as the approved candidate for the Samajwadi Party in respect of the aforesaid legislative assembly constituency, while rescinding the candidature of Dileep Rai Balwani.
(iii) Paper Nos.A-24/1 to A-24/4 are certified copies of the Forms "A" and "B", both dated 16.02.2022, showing the name of the respondent as the approved candidate of the Samajwadi Party.
(iv) Paper Nos.A-25/1 to A-25/7 include the certified copy of the proposal form of one Rajesh dated 17.02.2022 and its enclosures, nominating the respondent.
(v) Paper Nos.A-26/1 to A-26/7 are certified copies of papers for proposal made by one Roshan Kumar dated 17.02.2022 and its enclosures, nominating Dileep Rai Balwani.
(vi) Paper No.A-27/1 is a photocopy of a receipt in respect of a proposal form and information of scrutiny which was issued on 17.02.2022.
(vii) Paper Nos.A-28/1 to A-28/4 include a photocopy of a letter dated 17.02.2022 issued by the National Secretary of Samajwadi Party to the Chief Election Officer, U.P., Lucknow stating that the National Chief General Secretary of the Samajwadi Party, Professor Ram Gopal Yadav, has been authorised to issue Form "B" of 45 candidates enclosing therewith the list of some of the approved candidates.
(viii) Paper No.A-29/1 is a certified copy of the decision of the Returning Officer dated 18.02.2022 approving the name of the respondent as the candidate for the Samajwadi Party and rejecting the nomination document of Dileep Rai Balwani.
(ix) Paper No.A-30/1 is a document of allotting the election symbol in favour of the respondent by the Returning Officer.
(x) Paper Nos.A-31/1 to A-31/14 are copies of the description of the votes cast in favour of various candidates in the constituency including the petitioner and the respondent.
(xi) Paper No.A-32/1 is a copy of the certificate issued by the Returning Officer dated 10.03.2022 in favour of the respondent declaring him elected in respect of the aforesaid legislative assembly constituency.
15. The list of witnesses on behalf of the respondent includes the name of the respondent and the Returning Officer of the aforesaid assembly constituency only.
16. When the matter was listed on 21.10.2022, a statement was made by the petitioner that this petition is filed only on the ground of wrongful acceptance of the nomination form of the respondent and there is no allegation with regard to corrupt practice. Accordingly, in presence of the parties, two issues were framed by the Court as follows:-
"1. Whether the nomination form of the respondent, namely, Pankaj son of Phoolchand was wrongly accepted by the returning officer of 368 Legislative Constituency Mungra Badshahpur, District Jaunpur?
2. To what relief is the petitioner entitled?"
17. When the matter was listed on 11.11.2022, the petitioner appearing in person and the counsel for the respondent stated that they admit all the documents filed by the contesting parties in the list of documents. They then wrote their admissions on those documents which were then marked as exhibits.
18. The cross-examination of P.W.-1, the petitioner, was recorded and concluded on 02.12.2022. For cross-examination of other witnesses, the case was listed on 21.01.2023.
19. On 21.01.2023, it was informed by the petitioner that the P.W.-2, namely Mattu Lal s/o Sitaram, whose cross-examination was to be done, had died on 12.01.2023.
20. The cross-examination of the respondent, Pankaj (D.W.-1) commenced and concluded on 21.01.2023 itself. On that day itself, the Court directed issuance of summons to D.W.-2, who was the Returning Officer of the aforesaid assembly constituency.
21. On 18.02.2023, Shri Shitlendra Singh appeared in Court and said that he was the very person by whom the summons were received and that he had come to testify as the D.W.-2. His examination-in-chief was submitted by way of an affidavit and his cross-examination commenced and concluded on 17.02.2023 itself. By an order dated 03.07.2023, this Court recalled the witness Shitlendra Singh, DW-2, and summoned the original records pertaining to nomination of the respondent. On 09.08.2023 and 10.08.2023, the DW-2 was examined by the Court and his testimony was recorded. The original records were perused and the DW-2 submitted attested true photocopies of the nomination papers of the respondent and of Dileep Rai Balwani alongwith the register of nomination. Thereafter, despite further opportunity afforded to the parties, no submissions/arguments were advanced.
Issue No.1 :- Whether the nomination form of the respondent, namely, Pankaj son of Phoolchand was wrongly accepted by the returning officer of 368 Legislative Constituency Mungra Badshahpur, District Jaunpur?
22. It is the case of the petitioner that the nomination of the respondent as a candidate for the Samajwadi Party was wrongly accepted by the Returning Officer in place of Dileep Rai Balwani. The aforesaid fact has been denied by the respondent in his written statement.
23. The Election Commission of India notified the U.P. General Legislative Assembly Election-2022. The election schedule was announced on 08.01.2022 and the elections of Assembly Constituency 368 Mungra Badshahpur, District Jaunpur3 was to be held under Phase-VII of the elections schedule as under:-
S. No. Poll Event Phase VII
1.
Notification Date 10 February 2022
2. Last Date for filing nomination 17 February 2022
3. Scrutiny of nomination 18 February 2022
4. Last Date for withdrawal of nomination 22 February 2022
5. Date of poll 7 March 2022
6. Date of Counting of Votes 10 March 2022
24. It is not in dispute that on 16.02.2022, the Samajwadi Party approved the candidature of Dileep Rai Balwani in place of the candidature of the respondent, Pankaj, who was the earlier approved candidate for the Samajwadi Party for the aforesaid constituency. It is also not disputed that on 17.02.2022 both the respondent, Pankaj, as well as Dileep Rai Balwani filed their nomination forms before the Returning Officer of the aforesaid constituency. The respondent, however, in his written statement, has alleged that the answering respondent was declared candidate on behalf of the Samajwadi Party and Forms "A" and "B" were issued to him and on 16.02.2022, the party changed the decision and declared one Dileep Rai Balwani as Samajwadi Party candidate. It is further stated in the written statement that again on the same day, i.e., on 16.02.2022, the party again changed its decision and declared the respondent, Pankaj, as Samajwadi Party candidate in place of Dileep Rai Balwani and Forms "A" and "B" were issued to him.
25. Admittedly, the petitioner contested the election in the aforesaid constituency as an independent candidate.
26. In his examination-in-chief, the petitioner (P.W.-1) by way of an affidavit, has stated as follows:-
"2. That, on 16.02.2022 Samajwadi Party has issued four time Form A and Form B to these two candidates first. Pankaj son of Phoolchand and latest Dileep Ray Barwani son of Shyambali. The issuance of Form A and Form B are under following order sequence:-
i. First time Form A and B issued to the Pankaj son of Phoolchand.
ii. Second time Form A and Form B issued to the Dileep Ray Balwani son of Shyambali.
iii. Third time Form A and Form B issued to Pankaj son of Phoolchand.
iv. Fourth time Form A and Form B issued to Dileep Ray Balwani son of Shyambali.
The sequence and order of issuance of Form A and Form B apparently disclosed that Dileep Ray Balwani is latest and proper candidate of Samajwadi Party, which nomination form ought to be accepted and the nomination form of Pankaj son of Phoolchand ought to be rejected by the returning officer.
3. That, on 17.02.2022 both the candidate of Samajwadi Parti i.e. first Pankaj son of Phoolchand and latest Dileep Ray Balwani submitted their nomination form on last date of submission of nomination form i.e. 17 February, 2022 and date of withdrawl of nomination form was 22 February, 2022. The time and date of submission of nomination form of first and latest candidate of the Samajwadi Party are as under:-
(i) Pankaj son of Phoolchand Date 17.02.2022 Time-12:30 P.M.
(ii) Dileep Ray Balwani son of Phoolchand Date 17.02.2022 Time 02.48 P.M. If latest candidate Dileep Ray Balwani of Samajwadi Party not latest and proper then either he ought to withdrawal his nomination form or Samajwadi Party ought to withdrawal the nomination form of the latest candidate Dileep Ray Balwani, but such action has not been taken neither by latest candidate nor by Samajwadi Party, which apparently disclosed that latest candidate Dileep Ray Balwani was proper candidate of Samajwadi Party which nomination form ought to be accepted and the nomination form of the first candidate ought to be rejected by the returning officer.
1. That, of both stage
(i) at the stage of issuing of nomination form (Form A and Form B) by Samajwadi Party
(ii) at the stage of submission of nomination form before returning officer.
The Dileep Ray Balwani son of Shaymbali is the latest and proper candidate of Samajwadi Party which nomination form ought to be accepted by returning officer.
The Pankaj son of Phoolchand is first candidate of Samajwadi Party which nomination form wrongly and improperly accepted which ought to be rejected by the returning officer."
27. The petitioner has further stated that if the latest candidate, Dileep Rai Balwani of the Samajwadi Party was not the latest and proper candidate, then either he ought to have withdrawn his nomination form or the Samajwadi Party ought to have withdrawn the nomination form of the latest candidate Dileep Rai Balwani. That not being done, Dileep Rai Balwani was the proper candidate for the Samajwadi Party which nomination form ought to have been accepted and the nomination form of the first candidate, that is the respondent, ought to have been rejected by the Returning Officer.
28. It has been stated that on 19.02.2022 at 5:16 p.m., the latest candidate of Samajwadi Party, Dileep Rai Balwani filed an application against the rejection of his nomination to different authorities of the Election Commission through Fax.
29. The cross-examination of the petitioner (P.W.-1) was held on 02.12.2022. In his cross-examination, the petitioner stated that he was an independent and valid candidate for the constituency and the name of the respondent was declared by the Samajwadi Party as its first candidate. Thereafter, Samajwadi Party changed its declared candidate Pankaj and declared the name of Dileep Rai Balwani as its candidate. That, the Samajwadi Party again changed its declared candidate Dileep Rai Balwani and issued Form "B" and declared the respondent as its candidate after cancelling the candidature of Dileep Rai Balwani. He stated that the Samajwadi Party changed its candidate four times in which in the first and second time no candidature was cancelled, whereas in the third and fourth time, the candidatures were cancelled and in that sequence, on the third time Forms 'A' and 'B' were given to the respondent and the fourth time at the time of giving the Forms to Dileep Rai Balwani, the Form "B" issued to Pankaj, the respondent, was cancelled.
30. In the examination-in-chief of the respondent, which was submitted by way of an affidavit, the relevant extracts are as follows:
"2. That on 16.02.2022, the Samjwadi Party declared party candidate to the deponent for the Assembly Constituency-368 Mungra Badshahpur, District Jaunpur and issued Form 'A' & 'B' to him but later on, on the same day on 16.02.2022 the party changed the decision and declared one Shri Dileep Rai Balwani as Samjwadi Party candidate by cancelling the candidature of deponent and after that, again the party cancelled the candidature of Shri Dileep Rai Balwani and deponent had been declared as Samjwadi Party candidate by issuing Form 'A' & 'B' to him.
3. That deponent Pankaj filed his nomination as a candidate of Samajwadi Party on 17.02.2022 at 12.30 P.M. and after that Shri Dileep Rai Balwani also filed his nomination claiming to the candidate of Samjwadi Party on the same day at 02.48 P.M. as proved from the order passed by the Returning Officer.
4. That the nominations papers of Assembly Constituency-368 Mungra Badshahpur, District Jaunpur had been examined by the Returning Officer examined on 18.02.2022 and thereafter, the list of validly nominated candidate had been fixed on the notice board before three o'clock.
5. That the Returning Officer accepted the nomination of deponent as the candidate of Samajwadi Party and rejected the nomination of Shri Dileep Rai Balwani which is legal."
31. In the cross-examination of the respondent (D.W.-1), he stated that he had been given nomination Forms "A" and "B" by the Samajwadi Party twice. He stated that they were given to him on the same date twice. He denied having knowledge that whether Dileep Rai Balwani was given Forms "A" and "B" by the Samajwadi Party before they were given to him or after that. He stated, after perusing Paper No. A-36/3 and A-36/4, that the first set of the form was given to him and he had no knowledge whose form was cancelled later. When questioned, after placing Paper No. A-37/3 and A-37/4, that in whose favour the form given and whose form cancelled, the respondent answered that the Returning Officer could only answer it and not him.
The D.W.-1 was shown Paper No. A-38/3 and A-38/4 (which is Form "B" issued in favour of the respondent). He was asked to answer that who was approved as candidate by the Samajwadi Party in the third set of Form "B" and whose candidature was rescinded, the respondent answered that the Returning Officer can answer it and not him.
The D.W.-1 was then shown documents Paper No. A-39/3 and A-39/4 that in the fourth set of Form "B" issued by the Samajwadi Party who was approved as candidate and whose candidature was rescinded, the D.W.-1 said that the Returning Officer can answer that. To the question put to the D.W.-1 that on the date of withdrawal of the nomination whether any application was sent by the Samajwadi Party to the Returning Officer by Fax or e-mail, the D.W.-1 denied knowledge of the same. When queried that on the date of forms scrutiny when did the D.W.-1 reach the office of the Returning Officer and at what time did he return from there, the D.W.-1 answered that on that day he had reached the office between 11:00 to 1:00 PM and had left the office between 2:00 to 2:30 PM. The D.W.-1 stated that after getting knowledge of the validity of his nomination form, he had left the office of the Returning Officer. He had got knowledge that his nomination form was accepted and the nomination form of Dileep Rai Balwani was rejected between 2 to 3 PM. He stated that before 3 PM, the media persons had knowledge of the order of the Returning Officer and thereafter it was pasted on the notice Board. He stated that to the best of his knowledge, there was no friendship between his father and the Returning Officer. He denied that there was any evidence of any opposition to the fourth and last candidate of the Samajwadi Party, Dileep Rai Balwani.
32. The D.W.-2, Shitlendra Singh, in his examination-in-chief- submitted by way of an affidavit on 16.3.2023 stated that he was the Returning Officer of Uttar Pradesh Assembly General Elections 2022 of the Vidhan Sabha Constituency 368 Mungra Badshahpur, District Jaunpur. He has further stated that on filing of the nomination on behalf of the Samajwadi Party by two candidates, namely, Shri Pankaj at 12:30 PM and the second candidate, Dileep Rai Balwani at 2:48 PM, the D.W.-2 had cancelled the nomination of Dileep Rai Balwani by an order dated 18.2.2022 while accepting the nomination of the Samajwadi Party candidate Pankaj due to the reason that the Samajwadi Party candidate Pankaj had filed his nomination prior to the filing of the nomination of Shri Dileep Rai Balwani. It is further stated by him that his decision was delivered on 18.2.2022 and notice of the decision was affixed on the notice board on 18.2.2022.
In his cross-examination, the D.W.-2 stated that the respondent had filed his nomination form on 17.2.2022 at 12:30 PM and the other candidate of the Samajwadi Party, Dileep Rai Balwani, also filed his nomination on 17.2.2022 at 2:48 PM. He stated that the nomination forms could be filed till 3:00 PM as was prescribed by the Election Commission. Both the candidates had filed their nomination forms prior to 3:00 PM. For scrutiny and disposal of the nomination forms, no time limit was prescribed by the Election Commission. After completing scrutiny, the list was affixed on the notice board on 18.2.2022. He stated that all the documents including Forms "A" and "B" of the candidates of the political parties were arranged in an orderly fashion. The pages are numbered. He stated that three nomination forms of the respondent are available on record and one set of the nomination form of Dileep Rai Balwani is available on record. After perusing Paper No. A-36/4 (Form 'B'), the D.W.-2 stated that the respondent was the approved candidate and acceptance and rejection order was passed separately. On perusal of Paper No. A-37/3 and A-37/4 (Form 'B'), the D.W.-2 stated that Dileep Rai Balwani was the approved candidate but again opinion was changed and the General Secretary of the Samajwadi Party approved the candidature of Pankaj (the respondent). On perusal of the Paper Nos. A-38/3 and A-38/4 (Form 'B'), the D.W.-2 stated that the respondent Pankaj was the finally approved candidate whereas earlier Dileep Rai Balwani was the approved candidate. On perusal of the Paper No. A-39/3 and A-39/4 (Form 'B'), the D.W.-2 stated that the respondent-Pankaj was the approved candidate and there is no statement therein regarding rescinding of candidature.
33. In his testimony on 09.08.2023 and 10.08.2023, the DW-2 stated that there is a separate file relating to nomination for each candidate. He stated that both files pertaining to the nomination of Shri Pankaj and Shri Dileep Rai Balwani, are brought by Shri Farhat Ali Khan, A.R.O. and presented before the Court. With regard to his cross-examination on 17.03.2023, when asked, the witness stated that Paper Nos. A-36/3, A-36/4, A-37/3, A-37/4, A-38/3, A-38/4, A-39/3 and A-39/4 are true copies of the documents existing on the original file. All the aforesaid documents, which are true copies of Forms "B", are filed with separate nomination forms by the candidates and the time of submission of the nomination form is written. The witness stated that every Form - "B", nomination form is presented which is in accordance with law. The witness admitted that the nomination forms of the respondent-Pankaj and another candidate Shri Dileep Rai Balwani are present in the original record. When asked to peruse the nomination forms pertaining to Paper Nos. Paper Nos.A-36/3, A-36/4, A-37/3, A-37/4, A-38/3, A-38/4, A-39/3 and A-39/4 that where are they on the original record, the witness stated that for Paper Nos.A-36/3, A-36/4 and A-38/3, A-38/4, the nomination forms pertained to the respondent-Pankaj and are present on page no.47 of the original record. The witness further stated that Paper Nos.A-37/3, A-37/4 and A-39/3, A-39/4 pertain to the nomination forms of Dileep Rai Balwani and are present on page no.41 of the original record. The witness admitted that in the original files of Shri Pankaj and Shri Dileep Rai Balwani, in respect of two each Forms "B", only one each nomination form is present. The witness stated that the original forms of Paper Nos.A-36/3, A-36/4 and A-38/3, A-38/4 were presented by Shri Pankaj alongwith one nomination form on 17.02.2022 at 12:30 p.m. The witness further stated that the original forms of Paper Nos.A-37/3, A-37/4 and A-39/3, A-39/4 were presented by Dileep Rai Balwani through one nomination form on 17.02.2022 at 2:48 p.m. The witness stated that the detailed description pertaining to nomination is present in his order dated 18.02.2022.
34. Chapter I of Part-V of the Act, 1951 deals with nomination of candidates during the conducts of the elections. Section 30 provides that Election Commission shall, as soon as a notification calling upon a constituency to elect a member or members is issued, by notification in the Official Gazette, appoint (a) the last date for making nominations, (b) the date for the scrutiny of nominations, (c) the last date for the withdrawal of candidatures, (d) the date or dates on which a poll shall, if necessary, be taken, and (e) the date before which the election shall be completed. Section 31 provides for public notice of election and Section 32 provides for nomination of candidates for election. Section 33 provides for presentation of the nomination paper and requirements for a valid nomination which reads as follows:
"33. Presentation of nomination paper and requirements for a valid nomination.- (1) On or before the date appointed under clause (a) of section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers.
(1-A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State duly constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and-
(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.
(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 Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in section 9, has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls :
Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed alongwith the nomination paper, be produced before the returning officer at the time of scrutiny.
(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.
(7) Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,-
(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;
(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;
(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;
(g) in the case of bye-elections to the Council of States for filing two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;
(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.
Explanation.-For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date."
35. Sections 34, 35, 36 and 37 of the Act, 1951 are quoted below:
"34. Deposits. - (1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited,-
(a) in the case of an election from a Parliamentary constituency, a sum of twenty-five thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of twelve thousand five hundred rupees; and
(b) in the case of an election from an Assembly or Council constituency, a sum of ten thousand rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of five thousand rupees:
Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section.
(2) Any sum required to be deposited under sub-section (1) shall not be deemed to have been deposited under that sub-section unless at the time of delivery of the nomination paper under sub-section (1) or, as the case may be, sub-section (1-A) of section 33 the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury.
35. Notice of nominations and the time and place for their scrutiny.- The returning officer shall, on receiving the nomination paper under sub-section (1) or, as the case may be, sub-section (1-A) of section 33, inform the person or persons delivering the same of the date, time and place fixed for the scrutiny of nominations and shall enter on the nomination paper its serial number, and shall sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer.
36. Scrutiny of nominations. - (1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:-
(a) 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:-
Articles 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 section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.
37. Withdrawal of candidature.- (1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O'clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate.
(2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice.
(3) The returning officer shall, on being satisfied as to the genuineness of a notice of withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office."
36. Section 29-A of the Act of 1951 provides for registration of the political parties. In exercise of rule making power under the Act of 1951, the Conduct of Election Rules, 1961 were framed which came into force on 25.4.1961.
37. In exercise of powers conferred by Article 324 of the Constitution of India read with Section 29-A of the Act of 1951 and the Rules 5 and 10 of the Rules of 1961 and other powers enabling it in this behalf, the Election Commission of India has made the Election Symbols (Reservation and Allotment) Order, 19684.
38. Paragraphs 13 and 13A of the aforesaid Order, 1968 read as follows:
"13. When a candidate shall be deemed to be set up by a political party.- For the purposes of an election from any parliamentary or assembly constituency to which this Order applies, a candidate shall be deemed to be set up by a political party in any such parliamentary or assembly constituency, if, and only if,-
(a) the candidate has made the prescribed declaration to this effect in his nomination paper;
(aa) the candidate is a member of that political party and his name is borne on the rolls of members of the party;
(b) a notice by the political party in writing, in Form B, to that effect has, not later than 3 p.m. on the last date for making nominations, been delivered to the Returning Officer of the constituency;
(c) the said notice in Form B is signed by the President, the Secretary or any other office bearer of the party, and the President, Secretary or such other office bearer sending the notice has been authorised by the party to send such notice;
(d) the name and specimen signature of such authorised person are communicated by the party, in Form A, to the Returning Officer of the constituency and to the Chief Electoral Officer of the State or Union Territory concerned, not later than 3 p.m. on the last date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said office bearer or person authorised by the party:
Provided that no facsimile signature or signature by means of rubber stamp, etc., of any such office bearer or authorised person shall be accepted and no form transmitted by fax shall be accepted.
13A. Substitution of a candidate by a political party :-
For the removal of any doubt, it is hereby clarified that a political party which has given a notice in Form B under paragraph 13 in favour of a candidate may rescind that notice and may give a revised notice in Form B in favour of another candidate for the constituency:
Provided that the revised notice in Form B, clearly indicating therein that the earlier notice in Form B has been rescinded, reaches the Returning Officer of the constituency, not later than 3 p.m. on the last date for making nominations, and the said revised notice in Form B is signed by the authorised person referred to in clause (d) of paragraph 13:
Provided further that in case more than one notice in Form B is received by the Returning Officer in respect of two or more candidates, and the political party fails to indicate in such notices in Form B that the earlier notice or notices in Form B, has or have been rescinded, the Returning Officer shall accept the notice in Form B in respect of the candidate whose nomination paper was first delivered to him, and the remaining candidate or candidates in respect of whom also notice or notices in Form B has or have been received by him, shall not be treated as candidates set up by such political party."
39. The procedure for nomination of candidates during the conduct of the elections under the Act of 1951 have to be strictly construed. On or before the last date for making nominations, Section 33 of the Act of 1951 mandates that each candidate shall either in person or by his proposer, between the hours of eleven O'clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified, a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Sub-section (6) of Section 33 provides that nothing in section 33 shall prevent any candidate from being nominated by more than one nomination paper provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.
40. Under Section 35, on receipt of the nomination paper, the Returning Officer is mandated, inter alia, to enter on the nomination paper its serial number and to sign thereon a certificate stating the date on which and the hour at which the nomination paper has been delivered to him; and shall, as soon as may be thereafter, cause to be affixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer. The process of scrutiny of nominations, deciding of objections and rejection of nomination specified in Section 36 of the Act of 1951. The grounds for rejection of nomination are specified in sub-section (2) of Section 36 of the Act of 1951. The Returning Officer is required to endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination is rejected, he shall record in writing a brief submission of his reasons for such rejection. The procedure for withdrawal of candidature is prescribed in Section 37 of the Act of 1951.
41. The grounds for declaring an election to be void are specified in Section 100 of the Act of 1951, which reads as follows:-
"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) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, 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, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) [omitted by Act 58 of 1058, S. 30]
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
42. It has been stated by the DW-2 and it is admitted by the parties that the time and date of submission of the nomination form of the first and second candidate of the Samajwadi Party are as follows:-
(i) Pankaj son of Phoolchand Date 17.02.2022 Time-12:30 P.M.
(ii) Dileep Ray Balwani son of Phoolchand Date 17.02.2022 Time 02.48 P.M.
43. The DW-2, Returning Officer, has stated in his testimony that he had cancelled the nomination of Dileep Rai Balwani by only one order dated 18.02.2022 while accepting the nomination of the Samajwadi Party's candidate due to the reason that the Samajwadi Party's candidate Pankaj had filled his nomination prior to the filling of the nomination of Shri Dileep Rai Balwani. He stated that all the documents including Forms "A" and "B" of the candidates of the political parties were arranged in an orderly fashion. He further stated that three nomination forms of the respondent are available on record and one set of the nomination form of Dileep Rai Balwani is available on record.
44. The respondent in his written statement has alleged that the aforesaid Dileep Rai Balwani had maliciously filed his nomination after the petitioner filed his nomination claiming himself to be the candidate of Samajawadi Party and, therefore, the Returning Officer had rejected the nomination of Dileep Rai Balwani. In the list of documents, the respondent has filed Paper No.A-22/1, which is a letter dated 16.02.2022 addressed by the Chief General Secretary of the Samajwadi Party to the Returning Officer, in which it is stated that in respect of the aforesaid assembly constituency, the Samajwadi Party had issued Forms "A" and "B" in favour of the respondent as their approved candidate. It is stated that while changing its decision, the Samajwadi Party had approved the candidature of Dileep Rai Balwani instead of the respondent who was issued Forms "A" and "B" on 16.02.2022. The letter further states that now the Samajwadi Party has again changed its decision and has approved the candidature of the respondent in place of Dileep Rai Balwani and the respondent has been issued Forms "A" and "B" on 16.02.2022. Accordingly, a request was made to the Returning Officer to accept the respondent as the authorised candidate of the Samajwadi Party in respect of the aforesaid legislative assembly constituency and to allot the election symbol "Cycle" to him. It is important to mention here that this document has been admitted by the petitioner by writing the word "admitted" on the document in question and is marked as Exhibit D-1.
45. Certified copies of Paper Nos.A-36/3-4 is Form - "B" issued under the Order, 1968 by the Secretary General of Samajwadi Party stating that the respondent-Pankaj s/o Phoolchand is the approved candidate. Clause 2 of this form, which is as follows - "The notice in Form 'B' given earlier in favour of Shri/Smt./Sushri ...................................................................... as party's approved candidate/Shri/Smt./Sushri .................................................................. as Party's substitute candidate is hereby rescinded.", has been scored off.
Certified copies of Paper Nos.A-37/3-4 is Form - "B" issued by the Secretary General of Samajwadi Party in which the name of Dileep Rai Balwani s/o Shyam Bali is shown as the approved candidate of the Samajwadi Party. In this Form too, Clause 2 that is marked as asterisk (*) and quoted above, has been scored off.
Certified copies of Paper Nos.A-38/3-4 is Form - "B" issued by the Secretary General of Samajwadi Party showing the name of the respondent-Pankaj s/o Phoolchand as the approved candidate. In Clause 2 of this document, it is mentioned that notice in Form 'B' given earlier in favour of Shri Dileep Rai Balwani s/o Shyam Bali as party's approved candidate is hereby rescinded.
Certified copies of Paper Nos.A-39/3-4 is Form - "B" issued by the Secretary General of Samajwadi Party showing the name of Shri Dileep Rai Balwani s/o Shyam Bali as the approved candidate. Clause 2 of this document reflects that notice in Form 'B' given earlier in favour of Pankaj s/o Phoolchand as party's approved candidate is hereby rescinded.
It is pertinent to mention here that each of these Forms "B" are dated 16.02.2022 and are admitted by the respondent. The aforesaid Forms "B" have also been admitted by the DW-2.
46. Paper No.A-28/1-4 is a letter dated 17.02.2022 issued by the National Secretary of Samajwadi Party to the Chief Election Officer, Uttar Pradesh, Lucknow pertaining to the 7th Phase of the elections enclosing therewith a list of 45 candidates who were being authorised with Form "B". In the enclosure to the letter, which has certain pages missing, the name of the respondent-Pankaj is reflecting at serial no.18. This document is admitted by the petitioner and is marked as Exhibit D-7.
47. A perusal of the original record reflected that after the respondent had filed a nomination form on 17.02.2022 at 12:30 p.m. which was proposed by one Shri Rajesh, a second nomination form was filed by the respondent at 12:32 p.m. which was proposed by one Shri Raj Kumar. Yet, another nomination form was submitted by the respondent on 17.02.2022 at 12:33 p.m. which was proposed by Shri Laxmi Kant. Each of the aforesaid nomination forms were found to be valid by the Returning Officer. The sole nomination form of Dileep Rai Balwani was filed on 17.02.2022 at 2:48 p.m. The aforesaid details of the nominations also find place in the nominations register of 17.02.2022.
Thus, the testimony of DW-2 regarding three nomination forms being filed by the respondent and one by Dileep Rai Balwani are borne out from the record.
48. Paper No.A-29/1 is the order passed by the Returning Officer dated 18.02.2022 rejecting the nomination form of Dileep Rai Balwani, which is quoted below:-
"कार्यालय निर्वाचन अधिकारी 368-मुंगराबादशाहपुर जौनपुर ।
नामाकन पत्र मान्य किये जाने का निर्णय चुनाव आयोग के निर्देशानुसार जनपद जौनपुर में दिनांक 10 फरवरी से दिनांक 17 फरवरी 2017 तक नामांकन प्रक्रिया पूर्ण किया गया है। उक्त नामाकन प्रक्रिया के तहत दिनांक 17.02.2022 को प्रत्याशी श्री पंकज द्वारा समय 12:30 बजे अपराहन पर मेरे समक्ष नामांकन पत्र दाखिल किया गया। समाजवादी पार्टी के पक्ष से ही दूसरे प्रत्याशी श्री दिलीप राय बलवानी द्वारा दिनांक 17.02.2022 को ही समय 02:48 बजे अपराहन नामांकन पत्र दाखिल किया गया। पार्टी के महासचिव श्री राम गोपाल यादव जी द्वारा दोनों ही प्रत्याशियों को नामांकन पत्र दाखिल किये जाने हेतु अधिकृत किया गया था, किन्तु पुनः समाजवादी के राष्ट्रीय महा सचिव राम गोपाल यादव जी द्वारा श्री दिलीप राय बलवानी को प्रद्द नामांकन का अधिकार निरस्त करते हुये पुनः श्री पंकज को समाजवादी पार्टी के पक्ष से विधानसभा 368-मुंगराबादशाहपुर का अधिकृत प्रत्याशी माना गया है मेरे निर्वाचन कक्ष संख्या 20 में मेरे समक्ष पहले श्री पंकज द्वारा 12:30 बजे अपराहन पर नामांकन पत्र समाजवादी पार्टी से दाखिल किया गया है। जबकि श्री दिलीप राय बलवानी 02:48 बजे अपराहन पर नामांकन पत्र दाखिल किया है पार्टी के महासचिव के अधिकार पत्र एवं श्री पंकज द्वारा निर्वाचन अधिकारी के समक्ष 12:30 बजे अपराहन पर बलवानी से पूर्व नामांकन पत्र दाखिल करने की समय सीमा नामाकन पत्र में संलग्न कागजातों का अवलोकन करते हुये साथ ही दोनों प्रत्याशियों के अधिवक्ता द्वारा प्रस्तुत तर्कों को सुनने के पश्चात् श्री पंकज पुत्र फूलचन्द को 368 - मुंगराबादशाहपुर का समाजवादी पार्टी का प्रत्याशी मानते हुये श्री दिलीप राय बलवानी का नामांकन पत्र निरस्त किया जाता है।"
This document is also admitted by the petitioner and is marked as Exhibit D-8.
49. The DW-2, the Returning Officer, has stated in his testimony on recall that both, the respondent-Pankaj and Dileep Rai Balwani, had each submitted two sets of Forms "A" and "B" on 17.02.2022 alongwith one nomination form each at 12:30 p.m. and 2:48 p.m. respectively.
50. When the Samajwadi Party rescinded the candidature of Dileep Rai Balwani, then his nomination form, in which there was only one proposer, was rendered defective in view of the first proviso to sub-section (1) of Section 33 of the Act, 1951.
51. The other candidate Dileep Rai Balwani, whose candidature was rescinded, is not before this Court. The aforementioned Forms "B", i.e., Paper Nos. A-36/3-4, A-37/3-4, A-38/3-4 and A-39/3-4 read in conjunction with Paper Nos.A-22/1 evince that the case of the respondent would be covered by the second proviso to Paragraph 13A5 of the Order, 1968 as his nomination form was first delivered to the Returning Officer. Therefore, the decision of the Returning Officer dated 18.02.2022, Paper No.A-29/1 accepting the candidature of the respondent-Pankaj and rejecting the nomination form of Dileep Rai Balwani cannot be faulted.
52. Therefore, Issue nos.1 and 2 framed by this Court are decided as follows:-
(i) It is held that the nomination form of the respondent-Pankaj s/o Phoolchand was properly and correctly accepted by the Returning Officer of 368 Legislative Constituency Mungra Badshahpur, District Jaunpur.
(ii) The petitioner is not entitled to any relief.
53. The election petition is, accordingly, dismissed.
Date:- 15.09.2023 SK/A.V. Singh (Jayant Banerji, J.)