Patna High Court
Birendra Singh vs Dasrath Kumar Singh And Ors. on 25 January, 1995
Equivalent citations: 1995(2)BLJR853
JUDGMENT R.N. Sahay, J.
1. By this application under Sections 80, 80-A and 80(1) of the Representation of Peoples Act, 1951 the petitioner has questioned the election of Dasrath Kumar Singh who was elected from 324-Hussainabad Assembly Constituency in 1990 General Election. As many as many as 30 candidates had filed their nomination paper including the petitioner and the respondents. The Returning Officer rejected the nomination paper of Ashok Kumar Singh, Laxman Ram and Rabindra Singh at the time of scrutiny. After scrutiny nomination papers of 42 candidates were found valid. Out of 42 candidates, 17 candidates withdraw from the context. 25 candidates remained in the field as the contesting candidates including the election petitioner and respondent No. 1. The petitioner was not official candidate of Janata Dal whereas first respondent was official candidate of B.J.P. The petitioner has been polled 16047 votes whereas returned candidates had bagged 16210 votes. The first respondent was declared elected by very narrow margin. The petitioner seeks a declaration that the election of the first respondent, Dasrath Singh is void for the following reasons:
(1) Nomination paper of Ashok Kumar Singh and Rabindar Singh was improperly rejected by the Returning Officer.
(2) The order for repoll in three booths was illegal incontrary to the provision contained in Section 50 and 50-A of the Representation of People Act, 1951.
(3) Serious irregularities were committed in course of counting of votes. These are the main issues for consideration--
2. The petitioner has stated that the nomination paper of Ashok Kumar Singh was rejected on the ground that his name in the voter list did not tally the name in the nomination paper (Abhipramanit Prati Mai Ankit Nam Mai Antar Kai Falswaroop Aswakrit). It has been stated that at the time of scrutiny of nomination paper the candidate of Ashok Kumar Singh was himself present. No body raised objection about the identity of Ashok Kumar Singh. The serial number and the part number were correctly filled up in the nomination paper. However, there was a slight discrepancy in the name of, Ashok Kumar Singh in the voter list i.e. in the voter list the name of Ashok Kumar Singh has been written as Ashok Singh whereas in the nomination paper it was written as Ashok Kumar Singh. Similarly, the father's name of Ashok Kumar Singh in the voter list was mentioned as Sunder Singh whereas in the nomination paper the name was fulled as Sunder Deo Singh. It is contended that the nomination of Ashok Kumar Singh was improperly rejected in breach of Section 36(4) of the Representation of People Act, 1951 which Laid down that nomination paper can be rejected only on the ground that defects is of substantial character. The defect notes given by Returning Officer can hardly be characterised a defect much less defect of substantial character. It is asserted that the reason given by the Returning officer for rejecting the nomination paper is no reason in the eye of law and giving reason for rejecting nomination paper is mandatory requirement of law which was not applied by the Returning Officer.
3. As stated earlier, nomination paper of Rabindra Singh was rejected on the ground that the said candidate was a minor and hence not qualified to be chosen for legislature of a State. The Returning Officer had rejected his nomination paper despite the fact that nomination paper contained declaration that he had attained the age of 25 years. According to Article 137-B of the Constitution of India the person who is not less than 25 years of age on the date of election is qualified to be elected and hence rejection of nomination paper on the face of it arbitrary and improper. Rabindra Singh was present at the time of scrutiny and no body raised objection about his age at the time of scrutiny. It is contended that the reason assigned by the Returning Officer about the rejection of nomination paper of Rabindra Singh was absolutely warranted. Nomination paper of a candidate can not be rejected on the basis of age mentioned in the voter list.
4. According to the written statement filed on behalf of first respondent the rejection of nomination paper filed by Ashok Kumar Singh and Rabindra Singh was proper and the Returning Officer was justified in rejecting the nomination paper for the reasons assigned by him. In Paragraphs 16 and 17 of the written statement the following statements are made justifying the rejection of nomination paper of Rabindra Singh:
16. That the allegation made in para 8 of the petition under written statement is not correct. In fact the returning officer has rejected the nomination paper of Sri Ashok Kumar Singh on the substantial defect ground in the said nomination paper and reasons assigned by the returning officer for rejection of the said nomination paper are legal and correct.
17. That the statements made in para 9 of the petitipn under written statement are not correct and contrary to the provisions of law. It is the admitted position that there were discrepancies in respect to the name of the candidates and the name of the father of the said candidate between name of the candidate and his father name as mentioned in the nomination papers and the certified copy of the relevant extract of the concerned voter list. In such a peculiar circumstances it was the duty of the candidate, namely, Ashok Kumar Singh to explain such discrepancies through affidavit at the time of the scrutiny of his nomination paper before the returning officer, But as in fact both the candidate Sri Ashok Kumar Singh and his proposer were absent so the discrepancies occurrence between the nomination paper of Sri Ashok Kumar Singh and the relevant voter list remained unexplained. Besides, as the candidate aforesaid and his proposer were absent during the scrutiny of the said nomination paper the identity of the candidate was not established. In such circumstances the aforesaid discrepancies or defect in the nomination paper of Sri Ashok Kumar Singh became major and substantial defect and the returning Officer had no alternative except to reject the nomination paper of Sri Ashok Kumar Singh.
5. Statements made in paras 21, 22 and 23 of the written statement are set out below:
21. That the statements made in para 12 of the petition under written statement with a purpose to make allegation against the returning officer that the returning officer had improperly rejected the nomination paper of Rabindra Singh is incorrect, concocted and unjustified. In fact, the returning officer rejected the nomination paper of Shri Rabindra Singh on the ground that Sri Rabindra Singh was below age of 25 years on the relevant date of election, namely, on the date of scrutiny of the nomination, paper of Sri Rabindra Singh and he was not qualified to become a candidate for the said election as provided by Article 173 of the Constitution of India.
22. That the statements made in para 13 of the petitioner under written statement are not correct. It is not correct to say that merely by making declaration by the candidate in his nomination paper that he has attained the age of 25 years does not factually prove that in reality he has attained the age of 25 years. The age of 25 years of a candidate is a constitutional qualification under Article 173 of the Constitution of India and this qualification can not be proved merely by saying and at least the candidate, namely Shri Rayindra Singh was require to produce before the returning officer at the time of scrutiny of his nomination paper school leaving certificate or entry or the extract of the relevant entry made in admission register where Sri Ravindra Singh was admitted for the first time in admission register of a school, Moreover, it was also required to file an affidavit before the returning officer at the time of scrutiny of his nomination paper sworn by the father of Ravindra Singh or his guardian stating there the date of birth of his son or his ward, namely, Ravindra Singh, As, in fact, Ravindra Singh was Jess than 25 years of age on the relevant date of election particularly on the date or scrutiny of his nomination paper. The returning officer rejected the nomination paper of Ravindra Singh first under the circumstances that Ravindra Singh the candidate did not produce any evidence before the returning officer in proof of the fact that he was not below the age of 25 years on the date of scrutiny of the nomination paper and his age recorded in the public document, namely, voters list that the age of Ravindra Singh was less than 25 years.
23. That the statement made in para 14 of the petition under written statement are incorrect and contrary to the provision of law. It is the settled position in law that the returning officer on his own motion can reject a nomination paper below of the age of 25 years. It is incorrect to say that Ravindra, Singh was present at the time of scrutiny of his nomination paper. If, in fact, he was present at the time of scrutiny of his nomination paper, he would not have failed to produce oral and documentary evidence to prove he was not below the age of 25 years. In reality Shri Ravindra Singh aforesaid was dummy candidate of the petitioner, namely, Sri Birendra Singh at the instance of Birendra Singh, he was absent at the time of scrutiny of his nomination paper to get his nomination paper rejected, so that, the election of petitioner may utilise the rejection of nomination paper of Rayindra Singh as a ground in his election petition, in case of his defeat in the election in question, because he was apprehensive of his defeat in the election in question.
6. It may be stated that polling was held on 27.2.1990 and counting of votes was to take place on 1.3.1990, On 28.2.1990 returning officer informed that repoll would take place on 1.3.1990 in booth Nos. 57, 87, 129, 160, 172, 65, 83, 107, 118 and 124. There were as many as 169 booths in whole constituency. It may be stated that second repoll was held at booth Nos. 118 and 122. It has been submitted that repoll of repoll at booth Nos. 118 and 122 was in contravention of Sections 58 and 58-A of the Act and therefore, returning officer should not have counted the ballot papers at these two booths. It was contended on behalf of returned candidate that repolling at booth Nos. 118 and 122 was done in accordance with law and there is no infringement of Sections 58 and 58-A of the Act. The returning officer was also bound to a count the votes polled at those booths.
7. The election petitioner, in my opinion, has not been able to demonstrate the reason for violation of Sections 58 and 58-A of the Representation of People Act, There is absolutely no material on record to suggest that the decision of the Election Commission to hold repoll was wrong. The petitioner has not even given any reason as to why repoll had been ordered. The Election Commission has been empowered under Sub-section (2) of Section 58-A of the Act to declare that poll at a polling station or place to be void. It is certified on the report from the returning officer and after taking all material circumstances on account. Learned Counsel for the election petitioner is not correct in his submission that Section 58-A of the Act does not contemplate the second repoll. This issue, therefore, decided in favour of election petitioner.
8. Now I shall turn to the question as to whether rejection of nomination papers of Ashok Kumar Singh and Ravindra Singh was improper.
9. Section 33 of the Act provides for presentation of nomination paper and requirement for the valid nomination, Sub-section (4) of Section 33 of the Act which is relevant for our present purpose reads as follows:
33 (4) On the presentation of the nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidates and his proposer is entered in the nomination paper are and are the same as those entered in the electoral roll.
10. Mr. G.P. Roy, learned Counsel for the petitioner has submitted that there was no valid reason to reject the nomination paper of either Ashok Kumar Singh or Ravindra Singh. Even if there was some minor discrepancy though discrepancy was liable to be ignored in view of proviso of Section (4) of Section 33 of the Act. It is contended that it was the duty of the returning officer to point out the discrepancy at the time of presentation of nomination paper itself to enable the candidate to rectify the clerical error in the nomination paper, if any. The returning officer, therefore, wrong in rejecting the nomination paper at the time of scrutiny when no objection was raised by any candidate. Returning officer no doubt by virtue of provision contained in Sub-section (2) of Section 36 of the Act empowers to reject nomination paper on his own motion after fresh enquiry as he think necessary. But in the instant case there was no basis to reject the nomination paper of Ashok Kumar Singh. Nomination paper of Ashok Kumar Singh does not suffer from defect of any substantial character and, therefore, returning officer was bound to accept his nomination paper even if there was discrepancy in name and parentage in the nomination paper vis-a-vis in the voter list.
11. Learned Counsel for the petitioner has relied on Hira Singh Pal v. Madan Lal . In this case returning officer has rejected the nomination papers of one Madan Lal on the ground that serial number of the voter list of the proposer of the candidate was incorrect. The Supreme Court held that the rejection of nomination paper was improper because the errors found in the nomination paper were purely clerical errors. The returning officer had the duty to scrutinise the nomination paper when they were presented for finding whether there was any clerical mistake in the same. In Ram Awdhesh Singh v. Sumitra Devi it was held that misdirection as to electoral roll number was not a material defect and hence returning officer was not entitled to reject the nomination paper. In Deb Kanta Barooah v. Kusharam Nath, reported in AIR 1961 SC 1125, the returning officer had rejected the nomination paper on the ground that the name of constituency to which the electoral roll was related was not mentioned in the column of nomination paper as required by Section 33(4) of the Act. It was held that rejection of nomination paper was improper.
12. In view of the aforesaid decision it must be held that the rejection of nomination paper of Ashok Kumar Singh was improper.
13. Mr. Sharma, learned Sr. Counsel appearing for the returned candidate has tried to distinguish on facts of the decision relied upon the learned Counsel for the petitioner. He has relied on (Brij Mohan v. Sat Pal). In this case it was held that all errors in regard to electoral roll number of the candidate and the proposer in the electoral roll of nomination paper do not constitute defect of a substantial character. It was not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character. They would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is liable to find out the correct serial number of the candidates and the proposer by reference to the correct part number of the electoral roll. If that is not the case he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency. The Supreme Court held that High Court was justified in rejecting the nomination paper which contained inaccurate particulars given in the nomination paper with those entered in the part of the voter list mentioned in the nomination paper and the candidate was unable to show the name himself and his proposer in the electrical rolls. This decision is not applicable in the facts and circumstances of the case. The petitioner in the instant case was squarely covered by proviso of Sub-section (4) of Section 35 and ought to have been ignored by the returning officer. The Returning Officer has only given a vague reason for rejecting the nomination paper. It is not stated what discrepancy was found by him. Therefore, it must be held that revision of nomination paper of Ashok Kumar Singh was not in accordance with law.
14. The Returning Officer had rejected the nomination paper of Rabindra Singh on the ground that he was under age and the nomination paper of those candidates declared that they had completed 25 years and then how could the returning officer reject the nomination paper on the ground that he was under age. Returning Officer was examined in this case as R.W. 11, has stated that Rabindra Singh was not qualified to be elected since he was below age. He had not filed voter list of Bishrampur Constituency or. certified copy of the relevant entries. The reason assigned for rejection of nomination paper is that Rabindra Singh was below age. The Returning Officer has not stated that nomination paper of Rabindra Singh was rejected because age of this candidate in the voter list was below 25 years. But I presume this must have been the reason. No objection was raised by any candidate on this score. Significant fact is that he is an witness of a returned candidate. He has stated that in fact he had mentioned age to be 25 years at the instance of election petitioner. In my opinion, he can not consider the statement of Rabindra Singh. Admittedly, he was qualified according to age mentioned in the nomination paper because there was no material with Returning Officer to reject the nomination paper. He has also not assigned any reason. I, therefore, hold that rejection of nomination paper of Rabindra Singh was highly improper.
15. This election petition was filed on 16.4.1990. Issues were framed on 18.12.1990 and thereafter petitioner was directed to take steps for issuance of summon to its witnesses and for calling documents. The case was fixed for evidence. Adjournment was taken by counsel for the election petitioner. First witness was examined on 11.1.1993. Last witness for election petitioner was examined on 17.2.1993. The first witness of respondent was examined on 27.8.1993 and the last witness, namely, Returning Officer was examined on 25.10.1994. Both the parties are responsible for the inordinate delay in disposing of the case,
16. Duration of the present Assembly will expire in March. The Governor of Bihar on the recommendation of the election commission has issued notification under Section 15 of the Representation of People Act for the purpose of constituting new candidate in the Assembly Constituency in the State. The election process has started and nomination papers have also been filed. In view o,f this development Shri Sharma, learned Sr. Counsel for the respondent has submitted that this election has become infructuous and hence it should be dismissed as such.
17. In Loknath v. Birendra Kumar while an election appeal was pending before the Supreme Court Orissa Legislative Assembly was dissolved by the Governor. The preliminary objection was raised at the time of hearing of the appeal during the dissolution of Orissa Legislative Assembly. It was academic to decide whether or not elected candidate was disqualified from being a candidate under Section 9-A of the Act. It. was argued that unless there was a living issue between the parties the Court would not proceed to decide it. It would not occupy its time by deciding what is purely an academic question which has no sequitur so far as the position of the parties is concerned. It is contended that even if the appellant was able to satisfy the court that on the date of the nomination, the respondent was qualified under Section 9-A, it would be a futile exercise, because the Orissa Legislative Assembly being dissolved, the setting aside of the election of the respondent would have no meaning or consequence and hence the Court should refuse to embark on a discussion of the merits of the question arising in the appeal. It was held by the Supreme Court that the preliminary objection was fit to be sustained in view of the well settled recognised practice and followed in India as well as England that a Court should not undertake to decide an issue, unless it is a living issue-between the parties. If an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties it would be waste of public time and in deed not proper exercise of authority for the Court to engage itself in deciding it. The Supreme Court however, observed that the position might be different if the allegation against the respondent were of corrupt practice. Then it would not be academic to consider whether or not the respondent was guilty of the corrupt practice charged against him, because a finding of corrupt practice has serious consequences. The Supreme Court further observed that respondent has not other consequence than that of making the particular election void. It does not entail any electoral disqualification for the future.
18, The Supreme Court decision has again been considered and distinguished in the case of Moti Ram v. Param Dev it was held that dissolution of the house during pendency of the election petition does not render academic. It would be pertinent to quote the observations made in para 4 of the judgment:
4. Although in the instant case the election is not challenged on the ground of commission of any corrupt practice and a finding would not result in electoral disqualification in future but the present case differs from the case of Loknath Pandhan v. Birendra Kumar Sahu (supra) in the sense that in Loknath's case the election petition was dismissed whereas in the present case the election petitions against the election of the appellant have been allowed and the election has been set aside. It has been submitted by Sri A.K. Ganguli, the learned Senior counsel appearing on behalf of the appellant, that in view of tite fact that the decision of the High Court setting aside his election, the appellant may be required to refund that various allowances that he has received while he was functioning as a member of the Legislative Assembly after his election till the decision of the High Court. It would thus appear that invalidation of the election of the appellant may give rise to the liability to refund the allowances received by the appellant as amember of the Legislative Assembly. It cannot, therefore, be said that the question arising for consideration in this appeal are < purely academic in nature. In these circumstances, it becomes necessary to go into the merits of these appeals.
19. It is apparent from the aforesaid observation that the Supreme Court proceeded to decide the appeal notwithstanding dissolution of the Assembly because the election of the returned candidate had been set aside by the High Court against which decision appeal was pending before the Supreme Court. This case is covered by the decision of the Supreme Court in Lok Nath Pandhan v. Birendra Kumar Sahu (supra). Although, I have held that nomination paper of two candidates have been properly rejected in the effects and circumstances of the case, it would not be proper to set aside the election of respondent No. 1.
20. Fot the reasons stated above, this election petition is accordingly dismissed as infructuous. There shall be no order as to costs. The Joint Registrar is directed to send forthwith an authenticated copy of this judgment to the Election Commission of India as also intimate the substance of the decision to the Speaker, Bihar Legislative Assembly.