Punjab-Haryana High Court
Nazakat Khan @ Nazar Khan vs Jaleb Khan Son Of Sh. Suleman on 17 February, 2012
Author: K. Kannan
Bench: K. Kannan
Election Petition. No.4 of 2009 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
Election Petition. No.4 of 2009
Date of Decision.17.02.2012
Nazakat Khan @ Nazar Khan .....Petitioner
Versus
Jaleb Khan son of Sh. Suleman .....Respondent
2. Election Petition No.8 of 2009 Israil s/o Chahat .....Petitioner Versus Jaleb Khan son of Sh. Suleman .....Respondent Present: Mr. Gurinder Pal Singh, Advocate with Mrs. Sushma Singh, Advocate and Mr. Sandeep Kumar Sharma, Advocate for the petitioner.
Mr. Bhoop Singh, Advocate with Mr. N.K. Sharma, Advocate and Mr. Suveer Sheokand, Advocate for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
1. The above two election petitions pertain to the validity of the election to the 82-Hathin Assembly Constituency to the Haryana Legislative Assembly. Election Petition No.4 of 2009 has been filed at the instance of a candidate, whose nomination paper had been rejected and hence, it is contended that the election process was vitiated. Election Petition No.8 of 2009 is at the instance of an elector in the Constituency, who as a voter in the Constituency claims to be aggrieved Election Petition. No.4 of 2009 -2- about the wrongful rejection of the candidature of the petitioner in Election Petition No.4 of 2009 and seeks for similar relief for setting aside of the electoral results declaring the respondent-Jaleb Khan as a successful candidate. Since both the election petitions pertain to the electoral results of the same candidate, on a joint request made by counsel on both sides, they were ordered to be clubbed together by an order of this Court on 19.08.2010. The Court has recorded that the counsel for both sides in the petitions have agreed that evidence could be recorded in one case namely in Election Petition No.4 of 2009 and it would be treated as evidence in Election Petition No.8 of 2009 as well. Now, to the facts in detail as set out in the petition and the written statement of the respondent in both the cases.
2. The averments in the Election Petition No.4 of 2009 are as follows: The Election Commission of India issued a schedule for holding elections in the State of Haryana. The detailed programme published was as under:-
1 Last date for filing nomination 25.09.2009 2 Date for scrutiny of nomination 26.09.2009 3 Last date for withdrawal of candidature 29.09.2009 4 Date of polling, if necessary 13.10.2009 5 Date of counting of votes 22.10.2009 The petitioner had filed his nomination paper for election as a candidate for Braj Vikas Party, which was a registered-unrecognized political party and submitted the request form as well as authorization certificate in that regard. He had submitted the affidavit giving the details of assets, qualification etc. and had also submitted other information with regard to the details of pendency or conviction of any criminal case, as Election Petition. No.4 of 2009 -3- required under the rules/law. The requisite amount for security was also deposited in the Government Treasury. He had submitted two sets of nomination forms on 25.09.2009, which were entered at Sr. No.32 and
33.
3. The petitioner would claim that no defects were pointed out at the time when the papers were received and the Returning Officer made the petitioner to subscribe to oath and advised him to come next day on 26.09.2009 at 3 P.M. to get (election) symbol. On 26.09.2009, the petitioner had reached the office of SDM/Returning Officer where the scrutiny was taking place. The petitioner had been told that candidates/agents of recognized political parties were advised to come in and file their objections against nomination papers of any candidate and that others (including the petitioner)had been made to wait outside and were advised that they could come in, if the need arose. When the nomination papers were being scrutinized, the petitioner had been waiting for his turn to be called but at 2.30 PM, number of persons had come out of office of SDM/Returning Officer and they were saying "Najazkat ke paper reject ho gaye" (Nazakat, the petitioner).
4. The petitioner rushed into the Returning Officer's room to know why his papers had been rejected to which he was told that his serial number in the electoral list did not match with the serial number given in the nomination paper. The petitioner immediately showed him the voter list from which he had given serial number namely of the voter list of the year 2008 available with him and told that no other voter list had been available with the village Patwari. The Returning Officer told the petitioner that he could give the above facts in writing by getting it Election Petition. No.4 of 2009 -4- typed and the petitioner had the job done and gave a written explanation, which was received by the Returning Officer at 4.30 PM on the same day namely on 26.09.2009. The explanation had been faxed also to the Chief Electoral Officer, Haryana, Chandigarh through fax and the fax was shown to have been transmitted at the office of the Chief Electoral officer at 17.51 hours.
5. The initial objection given out to the petitioner was that Sl. No.37, which he had given in his nomination papers for Booth No.96 belonged to some one else, however, no order in writing was given to the petitioner and when he had given his complaint/explanation, an enquiry was got conducted by the Chief Electoral Officer. When SDM/Returning Officer had called him on 27.09.2009 and 28.09.2009, the petitioner pointed out to the fact that as per the guidelines of the Election Commission of India and as per the law of rules, the nomination papers could not have been rejected on the grounds stated. The Returning Officer added two more notes in the rejection order stating that the serial number of the proposer as found in the nomination paper also did not match with the electoral roll and that further the petitioner or his representative was not present at the time of scrutiny. The additional notes were indeed a cover up operation for the illegality committed by the Returning Officer by the improper and illegal rejection of the nomination papers of the petitioner. A copy of the information containing the rejection of the nomination papers had been given to the petitioner on 28.09.2009.
6. The voter list for the year 2009 were not available with the officials at the village level and at the time when the nomination was Election Petition. No.4 of 2009 -5- filed, only the voter list of the year 2008 was available to them. The petitioner got the voter list from the village patwari for filing the nomination papers and the Sr. No.37 in Part 96 of the Electoral Roll was what was contained in the electoral roll of 2008, although the petitioner had been enlisted in Sr. No.39 in the electoral roll of 2009. As a matter of fact, when the petitioner submitted the nomination form on 25.09.2009, no defect was pointed out by the Returning Officer. All the proposers continue to be electors in the Hathin Assembly Constituency. The petitioner would give a tabulation of the respective serial number for all the proposers apart from himself as found in the 2008 voter list and 2009 voter list as a proof of the fact that every one of the proposers was indeed very much included in both the electoral rolls.
Sr. No. of Name of Sr. No. in 2008 Sr. No. in 2009 Proposers Proposers voter list Voter List 1 Jamil 222 227 2 Erfan 20 22 3 Ruzdar 11 13 4 Sazid 26 28 5 Hakimuddin 29 31 6 Mainudin 27 29 7 Suddin 31 33 8 Abdul Karim 213 218 9 Noor Elahiee 426 436 10 Samsad Ahmed 275 281
The nomination papers of the petitioner had been rejected in violation of the provisions of the Representation of Peoples Act and other statutory guidelines issued by the Election Commission of India and since the 82-Hathin Assembly Constituency falls within the jurisdiction of this Election Petition. No.4 of 2009 -6- Court, the petition was being filed to try the election petition to call for the records and after perusal of the same declaring the election void by setting aside the action of the Returning Officer rejecting the nomination form and order fresh election by directing the acceptance of the nomination paper of the petitioner.
7. Written statement filed on behalf of the respondent states at the outset that no material facts regarding the non-rejection of the nomination paper have been brought out in detail and only vague, unnecessary and frivolous averments have been made that the nomination paper had been rejected in violation of the provisions of the Act under the statutory guidelines. The defendant would make an issue of the fact as a preliminary objection that the petition itself cannot be maintained without mentioning as to why the nomination papers should not have been rejected and which of the provisions have been violated. The ground of attack contained in Para 10 of the election petition lacks details as required by law and the petition was liable to be struck off as showing no cause of action. Even at the time when the nomination papers were presented, the Returning Officer gave back to each of the persons presenting the nomination papers a receipt of nomination paper and notice of scrutiny to a candidate or person presenting the nomination paper setting out the time and place of the nomination paper. Such a notice of scrutiny was handed over by the Returning Officer to all the candidates and it had stipulated the time at 11 AM on 26.09.2009 at his office. The respondent would deny the averment in the petition that the Returning Officer advised the petitioner to come to his office at 3 PM to get (election) symbol and as a matter of fact, the Election Petition. No.4 of 2009 -7- scrutiny of the nomination papers had been informed to take place on 26.09.2009 at 11 AM. The respondent would further deny that the petitioner had been told that only candidates/agents of recognized political parties might come inside and others should wait outside the office room of the Returning Officer and if the need arose, they would be called in. The petition has a serious omission of not disclosing the person, who gave such an information to the persons waiting outside. No such incident happened to advise persons in the manner suggested by the petitioner. Actually 18 candidates or agents including respondent's agent had been present at the time of scrutiny at the office of the Returning Officer. Out of the 18 persons, who were present, 11 were independent, 4 were of recognized political parties and 3 were of unrecognized and registered political parties. The statute through a provision under Section 36(1) of the Representation of People Act, 1951 allowed for every candidate, the election agent, one proposer for each candidate and one person duly authorized by the candidate as fully entitled to be present at the time of scrutiny. Neither the petitioner nor his election agent or his proposer or authorized person was present at the time of scrutiny of the nomination papers.
8. It is denied that at 2.30 PM many persons came out of the office of the Returning Officer saying that "Nazakat ke paper reject ho gaye". On the other hand, the petitioner was not present there. The nomination papers of different candidates had been rejected by the Returning Officer and not merely that of the petitioner alone. The list of 6 candidates along with reasons of rejection was displayed by the Returning Officer on the notice board immediately after the scrutiny Election Petition. No.4 of 2009 -8- along with the list of validly nominated candidates.
9. The voter list was not available with the village Patwari as stated by the petitioner but the same was available and could be obtained from the office of the registering officer or the District Electoral Officer as provided under Rule 33 of the Registration of Electors Rules of 1960. Indeed, the electoral roll for each constituency was prepared and revised by reference to qualifying date, which was 1st January of that year before each General Election as provided under Section 21 of the Representation of Peoples Act, 1951. Electoral rolls are published finally under Rule 22 of the Registration of Electors Rules, 1960. The Patwari has no concern with the publication of the electoral rolls or supply of its copy. The electoral roll of 2009 was in force and in existence at that time and the elections were held only on the basis of 2009 electoral roll.
10. The serial numbers given in the nomination papers by the petitioner did not match with the serial numbers given in the electoral rolls in force namely the electoral roll of 2009. The nomination papers were rejected only because the serial numbers as given in the nomination paper did not tally with the serial numbers of the petitioner and the proposers with the electoral roll of the year 2009. The electoral roll cannot be available with the officials of the village level but it could be obtained only from the office of the Registering Officer of the District Electoral Officer. There were several differences between what is stated by the petitioner as regards the details given in the nomination papers and what was actually found in the electoral roll of 2009. Election Petition. No.4 of 2009 -9- Details given in nomination paper Detail found in Voter List of 2009
37. Nazakat Khan @ Nazar Khan, 39. Najazkat (Khan @ Nazar Khan House No.3... is not mentioned), House No.4...
The proposers' names in the nomination papers did not contain the father's name and it was not possible for the Returning Officer to identify and locate them. Even otherwise, there were 10 voters by the name of Jamil, 6 voters by the name of Irfan, 4 voters by the name of Ruzdar, 4 voters by the name of Sahid and two voters by the name of Hakimuddin in the voters list of the year 2009, the very same names as some of the proposers.
11. Making an additional submission, it is contended that the nomination papers filed by the petitioner had been rightly rejected since the nomination did not conform to the requirement of Section 33 of the Representation of the Peoples Act, 1951. Where a person is not set up by any recognized political party, it was required to be subscribed by 10 proposers, who were electors of that constituency but against the name of the proposer Suddin, there was no signature. Consequently, the mandatory requirement of Section 33 of the Representation of Peoples Act had not been complied with. The certified copy of the nomination papers filed by the petitioner along with the petitioner clearly showed that the signatures of Suddin had not been subscribed although in the translated copies in English given, the petitioner has wrongly made it appear as though Suddin had also signed. The translations were wrong and the mistakes were intentional and deliberate. The petition deserves to be dismissed.
12. Replication filed by the petitioner denies the averment in the Election Petition. No.4 of 2009 -10- reply that the petitioner was not present at the time of scrutiny of papers and reiterates the circumstances when the petitioner had been waiting outside and he came about the wrongful rejection only when some persons came out of the Returning Officer's office claiming that "Nazakat ke paper reject ho gaye". The fact that an objection had been given immediately after the rejection of the nomination paper showed that he was very much present. As regards the defence statement that the petitioner could not have collected the electoral roll from the village Patwari, the petitioner would contend that for the purpose of issuance of various certificates with regard to the domicile, caste/categories, reports are made only by the village Patwari giving the details of name of the candidate and his father only from the voters list in the village. The voters list is, therefore, sent to the village Patwari by the government and the same is used by the villagers as and when occasions arose.
13. The reproduction of the serial number in the electoral roll is necessary only to ensure that he was a voter in the Constituency but the order of rejection fails to state that the Returning Officer could not identify the petitioner's same with the details given him in the nomination form. The Returning Officer himself had not stated in the order of rejection that he could not identify the proposers' names, or that the names of some of them were at more than one place.
14. As regards the additional submission raised by the petitioner giving a fresh ground for rejection of the nomination, which was not stated in the endorsement of rejection, it is contended that there seemed to be some mistake or deliberate mischief at the time of Election Petition. No.4 of 2009 -11- photocopying process for issuing a true copy to the petitioner. The petitioner had actually got the nomination papers signed by all the proposers. However, it is not relevant for the petition since said ground was not the ground of rejection of nomination papers.
15. The averments contained in the election petition No.8 are substantially the same and therefore, they are not reproduced again here. The written statement also brings out the same averments as what are brought through the pleadings in election petition No.4 of 2009. The replication makes re-affirmation in the manner made in election petition No.4 of 2009. Therefore, all of them are not reproduced here and the same may be taken as already set out through the averments in the election petition No.4 of 2009.
16. On the basis of the pleadings referred to above, the following issues have been framed on 27.07.2011.
1. Whether paragraph No.3 to 10 of the election petition do not disclose material facts and contain only unnecessary, frivolous and vague averments, therefore, liable to be struck off? OPR
2. Whether the election petition does not disclose any cause of action, therefore, liable to be dismissed? OPR
3. Whether nomination papers of Nazakat Khan alias Nazar Khan have wrongly and improperly been rejected, and if so, its effect? OPP
4. Whether the nomination papers of Nazakat Khan alias Nazar Khan have not been subscribed by ten proposers- electors, and if so, its effect? OPR Election Petition. No.4 of 2009 -12-
5. Relief."
17. On 19.08.2010 when a joint request had been made for clubbing together election petition No.4 of 2009 and election petition No.8 of 2009, the Court has framed the following issues as arising in common for both cases:-
2. Whether the election petition does not disclose any cause of action, therefore, liable to be dismissed? OPR
3. Whether nomination papers of Nazakat Khan alias Nazar Khan have wrongly and improperly been rejected, and if so, its effect? OPP
4. Whether the nomination papers of Nazakat Kahan alias Nazar Khan have not been subscribed by ten proposers-
electors, and if so, its effect? OPR
5. Relief.
Issue No.2 in election petition No.4 of 2009 and issue No.2 in Election Petition No.8 of 2009 identified as common for both election petitions; Issue No.1 in the election petition No. 4 of 2009:-
18. Issue No.1 is whether the averments in the petitions conform to the statutory mandate contained in Section 83(1)(a) that reads "an election petition shall (a) contained a concise statement of material facts on which the petitioner relies." The issue No.2 is whether the election petition discloses any cause of action. As regards the first ground of whether the petition contains a concise statement of material facts, it has to be seen in the context of the ground of challenge contained in the petition namely that the nomination papers of the petitioner had been improperly rejected, this ground is available under Section 100(1) (c) of the Representation of People Act, 1951. The Election Petition. No.4 of 2009 -13- improper rejection is anchored to an averment that could be seen from the various portions of the petition, which have been already extracted while paraphrasing the averments in the petition are (i) the nomination papers had been presented by the petitioner on 25.09.2009. At the time of presentation of the nomination paper on 25.09.2009, the petitioner had disclosed the details. The particular Sr. No.37 as found in the electoral roll and 10 proposers had joined in the nomination, the Returning Officer did not raise any objection or give any information that the petitioner's name or the proposer's name were not found in the electoral roll that was relevant for comparison and there was any defect therein; (ii) the petitioner had been asked to come the next day on 26.09.2009 at 3 PM for collecting the (election) symbol; (iii) the petitioner had been present at the office of the Returning Officer since 11 AM on 26.09.2009 but he was informed that only candidates or the representatives of recognized political parties were inside and if there was any need for any other person to be called in at the time of scrutiny, they might be called. The petitioner was not allowed to come in; (iv), the petitioner came to know about the rejection only when some persons came out of the room of the Returning Officer to say that "Nazakat ke papers reject ho gaye"; (v) the petitioner immediately went in and remonstrated before the Returning Officer as to why his name was rejected and when he was given the reason, he showed to him from the electoral roll of 2008 that the details given in the nomination paper was correct to which the Returning Officer said he could have his explanation/objection in writing and he, therefore, got typed his objection and delivered at 4 O'clock; (vi) he was called at the SDO office Election Petition. No.4 of 2009 -14- on 27.09.2009 and 28.09.2009 and when the petitioner pointed out that as per the guidelines of the Election Commission and as per the Rules, the nomination papers could not have been rejected but the so-called ground of discrepancy, the Returning Officer added two more grounds that (a) the serial number of the proposer did not tally and (b) the petitioner was himself not present at the time of scrutiny.
19. Learned counsel appearing for the respondent would contend strenuously that these details which could be culled down by the petition are not sufficient and the material facts which would lead to a result that the nomination had been improperly rejected. He would contend that the petition does not contain the detail of what was the specific violation of the Representation of People Act and what was the specific statutory guidelines issued by the Election Commission of India that had been violated. The petitioner has also not given any information in the petition about who prevented him from going into the room of the Returning Officer at the time when the scrutiny was being undertaken. Learned counsel would lay a foundation to his arguments by stating that the electoral result announced cannot be lightly interfered and the benchmark for pleadings as necessary in an election petition ought not to be viewed in the same manner as set out in the Civil Procedure Code under Order VII. The petition must set out not merely the concise statements but must include every important detail that would go to invalidate an election. The learned counsel would refer to the decision in Pothula Rama Rao Vs. Pendyala Venakata Krishna Rao and others (2007) 11 SCC 1, which lays down that an election petition must contain averments in making out the ground for setting Election Petition. No.4 of 2009 -15- aside the election properly. The observation of the Hon'ble Supreme Court was in the context of a person, who was seeking to challenge the electoral result as bad by improper rejection that a nomination was of dummy candidate but the election petition did not contain any averment that the said person was set up as candidate of that party by issuing a valid B Form in his favour. There was not even an averment in that case that the nomination had been subscribed by 10 proposers. In such a context, the Court held that the election petition lacked any material facts and did not make out a cause of action. The Hon'ble Supreme Court was upholding the rejection of the election petition by the High Court on the ground that the petition lacked material particulars. The proposition that petition must contain all the essential details is well taken. The requirement under Section 83 itself cannot be interpreted to mean that everything of what is stated at the time of evidence in Court must be actually pleaded. It is a fundamental precept of law and procedure that only material facts are stated and the matter of evidence need not be so stated in the petition. The name of the person, who stopped from going into Returning Officer's room or who actually gave out the details that the petitioner's nomination form had been rejected, what was the particular provision under the Representation of People Act that had been breached or what was the guideline given to the Returning Officer that had not been followed need not be expressly stated in the manner that is brought out through evidence. The only thing that has to be seen is that whether the evidence in any way conflicts with what is contained in the petition. If the petitioner states that he was prevented from going in and informed that if any need Election Petition. No.4 of 2009 -16- arose, he would be called and gives evidence in Court that a gun man standing outside the room of the Returning Officer prevented him from going in, there is really no conflict between the pleading and the evidence. Evidence explains what the petition states. Same way if the petitioner's ground of attack for the election result is improper rejection, the petitioner does not need to set out in the petition any more detail than the averment that he had given in his nomination form all that was necessary containing the serial number, his name and the 10 proposers as necessary, apart from the legal requirements of declaration of his assets, the criminal antecedents etc and he was bringing evidence in Court that the Returning Officer did not find any defect in his nomination form and if there was any such defect, he should have had it clarified and corrected even at the time of acceptance of the nomination form could be merely facts that could be brought in evidence and urged at the time of arguments. Learned counsel appearing for the respondent would also contend that the averment contained in para 4 of the petition that no defect had been pointed out at the time of acceptance of the form with regard to any discrepancy or when he was asked to make and subscribe oath before the Returning Officer, the petitioner had merely been told to come to the Returning Officer at 3 PM the next day to get the symbol could not be true, for the grant of symbol itself would arise only at the time when there arose an occasion for withdrawal of candidature and when the list was finalized on 29.09.2009. The absence of details could be an issue for comment on the strength of the contentions but would not be taken as making unavailable the cause of action for the petition. I would hold that the Election Petition. No.4 of 2009 -17- petition does not lack in material particulars and the facts brought out in the petition constitute the cause of action for the challenge to the election. The issues 1 and 2 are found accordingly.
Issue No.3
20. This Issue is whether the nomination paper of the petitioner had been wrongly or improperly rejected and the effect thereof. Filing of nomination paper and rejection requires to be examined in the statutory scheme of things in two phases. One at the phase of receiving the nomination, i.e., at the stage of presentation and receiving of the nomination papers by the candidate and the Returning Officer respectively and the second phase is when the scrutiny is undertaken and an acceptance or rejection is made and list is prepared of eligible candidates. They are dealt with under two independent sections and the guidelines also lay down distinct procedures. Section 33 deals with presentation of the nomination paper and the requirements for a valid nomination. In so far as they are relevant for the purpose of the petition, sub clauses (1) (4), (5) and (6) are reproduced:-
"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 form a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be Election Petition. No.4 of 2009 -18- delivered to the returning officer on a day which is a public holiday:
Provided also that in the case of 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.
(1A) XXXX XXXX XXXX
(2) XXXX XXXX XXXX
(3) XXX XXXX XXXX
(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 along with 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 Election Petition. No.4 of 2009 -19- accepted by the returning officer for election in the same constituency."
(7) XXXX XXXX XXXX
21. There are also guidelines accompanying this Section, which are made to conform to judicial pronouncements in so far as necessary they are also reproduced.
"Discrepancy and errors in electoral rolls 16.1 No misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposers 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 number 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 is commonly understood. You 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 papers shall be overlooked. You have no power in law to allow any other error to be corrected.
16.2 Similarly if there is a complaint regarding mismatch of photo in the photo electoral roll, you will overlook the same after satisfying yourself about the identity of the person through some other document produced by him.
16.3 Points, which you are thus required to dispose of under Section 33(4) should invariably be disposed of at this stage. It will be undesirable for you at the time of scrutiny to reject a nomination paper for defects, which could have been thus cured at the earlier stage of the presentation of the nomination paper. Say, for example, omission to mention his age in nomination paper is a defect of substantial nature and need not be pointed at preliminary scrutiny.
16.4 xxxxx xxxxx xxxx
22. At the preliminary stage, it could be noticed that the nomination paper cannot be simply received by a Returning Officer Election Petition. No.4 of 2009 -20- without undertaking some provisional check as to whether the nomination papers are in order. The guideline is that if there is any misnomer or inaccurate description, it shall be corrected then and there and inaccurate description, clerical or technical, shall be overlooked. In the present context, if it were to be seen that the petitioner had given his name as Nazakat Khan @ Nazar Khan and the electoral roll kept by the Returning Officer merely contained the name Nazakat and gives no alias or gives the alias as Nazar Khan, it ought not to be itself a ground for rejection of the nomination form. The Returning Officer must ensure that this type of discrepancies are properly clarified and corrected then and there. This is in the context of what the statute mandates under Section 33(4) extracted above. The Returning Officer is bound to satisfy himself that names and the electoral roll numbers of the candidates and the proposers as entered are the same as those entered in the electoral rolls. If there had been therefore a discrepancy in the serial number, such as, in this case, there was a discrepancy in the serial number given in the nomination form as 37 did not tally with the serial number as found in the electoral roll retained by the Returning Officer for comparison, it was surely a stage when the said discrepancy could have been seen, verified and had it corrected by the returning Officer. If the Returning Officer had allowed it to be received at that stage, the issue would be whether the Returning Officer would be estopped from stating after scrutiny that there was a discrepancy and therefore, whether there was any bar against the nomination paper being rejected.
23. Substantial case law had been produced by the respective counsel on this aspect of the nature of duty entrusted with the Election Petition. No.4 of 2009 -21- Returning Officer at the time of presentation of the nomination papers and the effect of inaction or omission in such a process. It would, therefore, be time to turn to the case law on this subject, for a discrepancy as found by the Returning Officer at the time when he was rejecting the nomination papers, was with reference to a mismatch between the electoral roll of the year 2009 and what was contained in the nomination paper filed by the petitioner.
24. Learned counsel appearing on behalf of the petitioner refers to a judgment in Ram Bhual Vs. Ambika Singh 2005 (12) SCC 121 that dealt with the case of rejection of nomination papers on the ground that name of the proposer was not at the voter's number mentioned in the nomination paper where there had been clerical mistake in mentioning the voter numbers of the proposer. The Court held that the Returning Officer could not cancel the nomination on such a ground unless it was a case of the proposer not being a voter at all. The Returning Officer must check the voter list and if the voter list was there at any number, the nomination could not be rejected on that ground. This is in the context of petitioner's contention that in this case also, the rejection had been made only on the basis that serial number as found in the nomination papers did not tally with the serial numbers as given in the electoral roll of 2009. In Rakesh Kumar Vs. Sunil Kumar 1999(2) SCC 489, the Hon'ble Supreme Court was dealing with the case of Returning Officer rejecting nomination paper without giving an opportunity to remove the objections particularly when the candidate had asked for such an opportunity, which was not objected to. This is also in the context of presentation of the nomination papers and the duty enjoined on the Election Petition. No.4 of 2009 -22- Returning Officer at the time of presentation of nomination papers. The Supreme Court was actually making reference to the instructions issued for the exercise of statutory functions by the Election Commission of India and how the Returning Officer was bound to meet the objections when an opportunity had been sought. This is in the context of the petitioner's contention that he had actually given his objections, which were received at 4 PM on 26.09.2009 and the Returning Officer ought to have allowed for the petitioner to point out to the error in rejection of his nomination paper only on the ground of discrepancy between the serial numbers given in the nomination paper and the serial numbers found in the electoral roll of 2009. In Jagannath Ramchandra Nunekar Vs. Genu Govind Kadam and others 1989 (Sup1) SCC 55, the Hon'ble Supreme Court was considering the effect of Section 33(5) that allows for a copy of the electoral roll of an elector of different constituency, which could be produced before the Returning Officer at the time of scrutiny even if it had been filed along with nomination papers. The Supreme Court was holding in the above case that copy, which was produced in less than 24 hours after the filing of nomination papers, was perfectly justified and rejection of nomination papers on the basis of the Returning Officer's own electoral roll without giving an opportunity to rebut the objection was not proper. In Ram Awadesh Singh Vs. Smt. Sumitra Devi and others 1972(3) SCC 131, the Hon'ble Supreme Court was holding that a mis-description as to electoral roll number would not be material defect and the rejection was improper. The Hon'ble Supreme Court was holding that having regard to the fact that there was a duty cast on the Returning Officer under sub section 4 of Section 33 to Election Petition. No.4 of 2009 -23- look into the nomination papers when it is presented and to satisfy himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination papers were the same as those entered in the electoral roll, he should have asked the candidate either to correct the mistake or to file a fresh nomination paper. The Court was dealing with the case where the mistake complained of accrued because the appellant as well as the Returning Officer looked into the main voter list but overlooked the deletions made in the separate list.
25. In all the above decisions, the Supreme Court was noticing a distinction between the acceptance of nomination and the rejection of nomination paper. The Returning Officer was required to give reasons for rejecting a nomination whereas he was required to give no reason for accepting a nomination. The proviso to Section 33(4) clearly laid down that no inaccurate description in regard to the name of the candidate or his proposer or in regard to the place mentioned in the nomination paper should affected the full operation of nomination. The very fact that the law requires Returning Officer to look into the nomination papers when filed and get any mistake regarding the name or electoral roll of the candidate or his proposer corrected shows that the mistake regarding the same is not an immutable material defect.
26. All the above decisions would admit of no doubt that a mere error in the spelling out a serial number mentioned in the electoral roll, which the Returning Officer was holding for verification could not have been a material defect for rejection of the nomination papers. The duty cast on the Returning Officer at the time of acceptance of the Election Petition. No.4 of 2009 -24- nomination papers would go as far as to ensure that they are immediately corrected and taken on file. Even the guidelines issued to the Returning Officer's by the Election Commission spells out such a duty. In this case, it is surely an instance of where the Returning Officer could have very easily seen at the time of receiving the papers that the serial number, which had been given for the candidate as well as for the proposers did not tally and if he had asked for clarification with the candidate at the time of presentation of nomination papers, he would have surely secured appropriate clarification and correction with reference to the electoral roll of 2008, which the petitioner states that he was relying on. I will not go into the question of whether the candidate was justified in referring to the electoral roll, which he claimed that he had tkaen from the Patwari. I see as a matter of fact that electoral roll of the year 2008 as well as 2009 definitely carry the names of the candidate as well as of the proposers and therefore, the Returning Officer could have obtained the proper clarification even at the time when they secured the correction at the time of receiving the nomination papers themselves. If the Returning Officer failed in the duty, which I would find in this case that he did commit a lapse, it would still not go as far as to estop the Returning Officer from rejecting the nomination papers ultimately. The mere error in names or the serial numbers would not be a material defect when it is pointed out and corrected but if the Returning Officer had failed to exercise appropriate caution and received the papers at the time of scrutiny, the Returning Officer is not expected to find whether there is any error and if there was, he should stop the scrutiny to wait for candidate even if he was not Election Petition. No.4 of 2009 -25- there. In all the cases, which the learned counsel appearing for the petitioner has cited, either the candidate or his representative was very much present trying to explain the error and seek for modification and in all such cases, the Returning Officer had not given that opportunity to correct the same. Instances where the candidate actively participates in the scrutiny and seeks for a modification when the plea is rejected, would be totally different from a situation where the Returning Officer is indiscreet in not carrying out his duty properly at the time of receiving the nomination papers but finds later at the time of scrutiny that the petitioner himself was not present to clarify the error and with no definite information available from his own record for the correction of the entries as found in the nomination papers, the consequence of a rejection would become inevitable. The Supreme Court itself has pointed out in Ram Awadesh Singh's case (supra) that the language employed in Section 33(4) and 36(2) at the time of acceptance of nomination and the rejection, shows that there need be no reasons given at the time of acceptance while he is bound to give reasons at the time of rejection. Consequently, if the Returning Officer excludes the nomination paper without checking up the minor defects, which could have been corrected if he had been vigilant, the issue will loom large at the time of scrutiny when the Returning Officer finds no assistance to see that he was really an elector in the constituency and the identity of the elector and the proposers are not very clearly established.
27. The whole issue would, therefore, turn around the assessment of whether the petitioner had been present at the time when the scrutiny was undertaken. The petitioner's case is that he had arrived at Election Petition. No.4 of 2009 -26- 11AM, although he had been asked to come at 3 PM for collection of symbol, but he however, admits that he was not actually present before the Returning Officer at the time when the scrutiny was done. The petitioner's explanation is that he was prevented from going in and only the candidates or the representatives of recognized political parties were allowed to be in the room of the Returning Officer. This is a very serious assertion and unless it is clearly established through evidence, it cannot accepted. A right to be present at the time when the scrutiny is done is given utmost importance, for even the nomination form that consists of six parts provides for the retention of five parts and handing over of the 6th part to the candidate with details of the place and time when the scrutiny would be undertaken. The idea is to ensure that he participates with the Returning Officer at the time of scrutiny and makes certain that the nomination papers head for a safe passage for acceptance. Part I of the nomination paper gives out the particulars to be filled by a candidate set up by recognized political party (whcih is not applicable to the petitioner), part II is to be filled in by the candidate not set up by recognized political party giving his name if there is name, serial number and his address with enough details to show that he was an elector of that constituency and also the particulars of the proposers and their signatures. Part III is a declaration relating to his affiliation to any party, his employment etc. Part IIIA requires details to be filled in by candidate with regard to the criminal antecedents if any. Part IV is to be filled in by the Returning Officer giving the details of when the nomination papers had been presented, Part V gives the decision of the Returning Officer either accepting or rejecting the nomination papers Election Petition. No.4 of 2009 -27- and part VI gives time and place of the scrutiny. When the contention of the petitioner is that he was present at 11 AM itself although he was advised to be present at 3 PM the following day, this point is specifically denied by the respondent. On the other hand, his contention is that the petitioner was not present at all and even the attendance slip signed by the persons, who were present at the time of scrutiny does not contain the name of the petitioner. Learned counsel appearing for the petitioner would urge that the respondent's representative had admitted in court that he did not know the identity of the petitioner in his evidence and therefore, he cannot assert that the petitioner was not present. He would run down the entries in attendance register as of little consequence by pointing out to the fact that the document produced before the Court is not itself perfect, for against all the names who were said to be present, two persons, viz., persons against serial nos. 19 and 20 had not even signed and therefore it was even doubtful, if the said two persons were also present. Even if I must discard the attendance slip, that would be of no consequence. The issue of whether the petitioner was prevented from going into the room of the Returning Officer assumes significance, for his absence at the time of scrutiny had actually spelt the gloom, as it were, for him. The petitioner relies on oral evidence on his behalf through PW4, who is the petitioner in election petition No.8 of 2009. In my view, it would not be sufficient to rely on merely on evidence of yet another person, who had actively filed the petition. Oral evidence would be appropriate in cases where the documentary cross-verification is impossible or could still be doubtful. A refusal of a person to be admitted into the room of the Returning Election Petition. No.4 of 2009 -28- Officer at the time of scrutiny is too serious and allegation cannot allowed to be rested merely on oral testimony. Learned counsel appearing for the petitioner states that it was essentially a matter between the petitioner and the Returning Officer and the Returning Officer must have been cited as a witness by the respondent if he was interested in denying the petitioner's presence. The requirement is one of positive evidence of whether admittance into the room was denied to the petitioner in the manner canvassed by the petitioner. There is simply no reason at all, which is given by the petitioner as to why he did not produce Part VI of the form, which must have contained the details of the time and place of the scrutiny. If the same had been produced, it could test the contention of the petitioner that the Returning Officer had told him to come at 3 PM for collecting his election symbol. Form VI would be again a testimony to the fact whether the petitioner knew that he had to be present for scrutiny at the particular time or not. Most importantly, the fact of denial of permission to be present at the time of scrutiny must have been stated at the time when the petitioner was giving his objection statement at 4 PM. PW2 Surender Sharma accepts that an application was received through fax at 17.51 hours. PW3/1 itself records the fact that in the objection given by him, he has nowhere stated that he was prevented from going into the room at the time of scrutiny. On the other hand, the objection only tries to explain the fact that he had secured an electoral roll of the year 2008 from the Halqa Patwari and that the information given by him conformed to what was contained in the electoral roll. The fact of someone preventing the petitioner from going into the room of the Returning Officer at the time Election Petition. No.4 of 2009 -29- when the scrutiny was undertaken is so important that it could not have been omitted to be stated in the objection. If it was not so stated, it would mean that the assertion that he was present at that time itself cannot be true. I cannot find fault with the respondent for not citing the Returning Officer as a witness to deny that the petitioner was present, since it is not the case of the petitioner asserting that the petitioner was present in the Returning Officer's room. On the other hand, the petitioner has only been saying that he was not allowed to enter into the room by the gunman. It is wellnigh impossible for the Returning Officer to give evidence on what was happening outside his room. A positive evidence, which must have come through the petitioner with appropriate evidence that has not been brought forth in this case cannot be a substitute to what a Returning Officer may or may not have known whether the petitioner was sitting outside or not.
28. If the petitioner had not been present and the Returning Officer had himself been indiscreet in not allowing for proper verification at the time of presentation of nomination paper, the issue is whether the Returning Officer had a duty to run through the other entries in the electoral roll to verify if the candidate or the proposers' names had been entered against some other serial numbers. If the names of the petitioner or the proposers had figured in the electoral roll of 2009, but still the Returning Officer had missed them, that would be surely an actionable error on his part. The most important requirement was that the information given in the nomination paper regarding the fact that he was an elector of that constituency must be supported by appropriate documentary proof. If the petitioner had been present at Election Petition. No.4 of 2009 -30- the time of scrutiny and if he had pointed out to the discrepancy and explained with reference to the electoral roll of 2008 that ought to have concluded the matter for the benefit of the petitioner. If, on the other hand, the identity of the petitioner was not clearly established and the absence of the petitioner at the place compounded the defect for the Returning Officer to secure such identification, then the rejection was not wrong. The nature of duty to be performed at the time of scrutiny by the Returning Officer at the time scrutiny is not without legal precedents and they have been cited by the learned counsel appearing on behalf of the respondents.
29. In Brij Mohan Vs. Sat Pal AIR 1985 SC 847, the Hon'ble Supreme Court was actually dealing with the issue of rejection of a nomination paper, which contained a defect in referring to a part number, which was wrongly given in the nomination paper. It was contended in that case that the enquiry at the stage of receipt of nomination paper was what could be called as a peripheral one and that no legal consequence would flow from the omission on the part of the Returning Officer or specified Assistant Returning Officer to carry out the responsibility at the stage of receipt of the nomination paper. The Hon'ble Supreme Court was also considering the decision referred to by the counsel for the petitioner namely Hira Singh Pal's case and Ram Awadesh's case in the said case. In a situation where more than 77000 voters were registered in 97 parts of the electoral roll, failure to give the correct part number in the roll number was material. In that case, the Returning Officer had asked the candidate, who was present before him to point out the entries in the electoral rolls where names of Election Petition. No.4 of 2009 -31- himself and his proposer were found as electors and when he was not in a position to explain the discrepancy, the rejection made by the Returning Officer was found to be not improper. It could be immediately noticed in a case where the Returning Officer himself was told to find out the mistake or when the candidate had given that information, it should have been possible to accept the nomination paper. If the candidate could not give that explanation, there was no more duty for the Returning Officer to undertake a minute scrutiny to find whether details as given in the nomination could be reconciled by verifying the names mentioned in all the parts in the electoral roll. In Lila Krishan Vs. Mani Ram Godara AIR 1985 SC 1073, there had been a rejection of nomination paper in a case where the serial number of the proposer mentioned in the nomination paper did not tally with the serial number mentioned in the voter list. There had been no assistance provided to the Returning Officer to correlate and identify the proposer. The rejection of the nomination paper was held to be not invalid. In Mathura Prasad Vs. Ajeem Khan AIR 1990 SC 2274, the situation was typical such as what obtains before us. The candidate and his representative remained absent at the time of scrutiny. The Court found that there was duty cast on the Returning Officer to peruse the entire electoral roll. This probably even explains the contentions raised on behalf of the petitioners that the Returning Officer could have picked up the names of the petitioner and proposers elsewhere in the same page in the electoral roll but the decision of the Supreme Court itself is an answer that it is not the duty of the Returning Officer to peruse the entire electoral roll and to see whether the name could be seen Election Petition. No.4 of 2009 -32- elsewhere in the same electoral roll. In Bhogendra Jha Vs. Manoj Kumar AIR 1996 SC 2099, the Hon'ble Supreme Court held that the Returning Officer was not expected to make a roving enquiry to find out whether the names of the proposers found place in the electoral roll. It was duty of the candidate/proposer to satisfy the Returning Officer. The Court found in that case that the candidate, who had filed the nomination had been admittedly present but did not ask for an opportunity nor attempted to satisfy the Returning Officer as to the correctness of the particulars furnished by them in the nominaton papers of the proposers.
30. All the decisions referred to above would show that even defects, which could have been easily corrected at the time when the discrepancies were found at the time of receipt could escalate to different results if a candidate was not present to explain the discrepancy or though present was unable to properly reconcile the discrepancies, the Returning Officer is not expected to conduct a roving enquiry by looking into all the entries in the entire electoral roll and secure appropriate correction on behalf of the candidate. The learned counsel appearing on behalf of the respondent actually points out that the identify of the person, which is so crucial, was certainly not possible from the details given by the petitioner in the nomination paper and what were available in the electoral roll of 2009, which the Returning Officer was bound to see even in the absence of the candidate at the time of scrutiny. He would point out to the fact that the petitioner's nomination paper given in part II of the form his name as Nazakat Khan @ Nazar Khan, his serial No.37 and the postal address as House No.3, Election Petition. No.4 of 2009 -33- village Roopraka. In the electoral roll, the serial number given was 39, there was no alias name and the door number given was 4. Even as regards each one of the proposers, it would have been difficult to secure their identity since even the particulars set out in the nomination form did not require their respective father's name to be given. In the written statement, the respondent gives the details of how several of the proposers' names were not unique and there were several persons in the village having the same names. There are 10 voters by the name Jamil, 6 voters by the name of Erfan, 4 voters by the name of Rujzdar, 4 voters by the name of Sazid and 2 voters by the name of Hakimuddin. If we match these particulars with the limited nature of scrutiny that was required to be done by the Returning Officer is seen through the judgments referred to above, I would not find the rejection of the nomination to be invalid.
31. Post facto details brought by the petitioner by reconciling the details of serial numbers of the candidate as well as proposers with reference to the electoral roll of 2008 would make it appear that these mistakes could have been very easily rectified and the rejection or the nominations would not have been surely avoided if the Returning Officer had been vigilant and carryied out the duty in the manner that he was required to do under Section 33(4) or as per the guidelines. While I would definitely find that the Returning Officer had been indiscreet, I will not find such indiscretion to prevail and explain the petitioner's own absence and lack of vigilance at the time when the scrutiny was undertaken. If he was not present or at least when his presence is not established through approriate evidence, the nature of scrutiny, which Election Petition. No.4 of 2009 -34- was to be undertaken by the Returning Officer would not dictate to a duty to reconcile the difference and pass the nomination paper as valid. The rejection of the nomination papers was, therefore, not improper and the petitioner could have no valid cause of action to sustain his challenge to the election.
32. There is yet another reason why the position of the Returning Officer cannot be found to be legally suspect. There was simply no scope for the Returning Officer to undertake an enquiry after the decision had been made and the list had been put up giving the details of the rejected candidates and the persons, who had been approved as candidates in the electoral fray. The moment the decision is taken for rejection of the nomination papers of some persons and the list is put up, the Returning Officer himself would become functus officio except to allow for withdrawal within the time of candidates whose nomination papers had been approved. The petitioner's objection given at 4 PM or sending his objection to the rejection of the nomination papers by fax to the Chief Election Officer could not make matters different, unless the Court found in an election petition that the action of the Returning Officer was not in accordance with law. A lack of diligence on the part of the Returning Officer at the time of receipt of nomination paper at the stage of Section 33 and the suggestion that he was required to obtain at the stage of Section 33(4) is not the same as the duty to scrutinize in the manner contemplated under Section 34 (6) of the Representation of People Act, 1951. I therefore find the issue No.3 against the petitioner and hold that the rejection of the nomination papers of Nazakat Khan was neither wrong nor improper. Election Petition. No.4 of 2009 -35- Issue No.4
33. This issue addresses the objection raised by the respondent that Nazakat Khan @ Najar Khan had not been subscribed by 10 proposers/electors. Though the petitioner had contended in the writ petition that the rejection of the nomination paper itself had not been on this ground and therefore, the said objection was a non-issue, learned counsel appearing for the petitioner himself has cited the judgment of the Supreme Court in N.T. Veluswami Thevar Vs. G. Raja Nainar and others AIR 1959 SC 422 that reading Section 100(1)(c) of the Representation of People Act of 1951, in the context of the whole enactment, an enquiry before the Election Tribunal must embrace all the matters of qualification or disqualification mentioned in Section 36 (2) and could not be limited to the particular ground of disqualification, which was taken before the Returning Officer. The Election Tribunal must, therefore, have jurisdiction to decide all questions, which could be raised under that Section. Learned counsel for the petitioner, however, submitted that the onus of proof of establishing that the nomination had not been subscribed by 10 electors was on the respondent only and he ought to establish that the nomination was not subscribed in the manner required under law. If a reference were to be made to the original nomination paper filed in this Court and exhibited as PW1/1, the matter ought to simply rest there, when it is seen that the particulars of proposers and signatures as found in the documents contained 10 names and 10 signatures. The matter, however, gets complicated only by the fact that the document produced by the petitioner is challenged by the respondent as having been brought by Election Petition. No.4 of 2009 -36- fabrication by securing the signature of one person Suddin subsequent to the filing of the written statement and during the pendency of the petitions. The basis for such a contention is that even the certified copies produced by the petitioner and the certified copies obtained by the respondent had secured prior to the institution of the petitions contain only 9 signatures against 10 names and against the name Suddin, the place had been left blank. The imputation is that the defect that would entail the rejection of nomination even if the first issue were to be answered in favour of the petitioner, would meant that the case of the petitioner ought to fail by the basic defect that in respect of a candidate, who does not represent a recognized party ought to have 10 proposers in order that the nomination is valid.
34. It is, therefore, rather a queer situation of the certified copies being used to discredit the originals while normally the reliance on certified copies could be objected on the ground that it does not really represent what the originals contain. In this case, the photocopies which were certified are relied on to show what the original ought to have contained. The fact that the certified copies are the photocopies taken during the relevant time when parties were preparing ground to take the dispute to the Court for resolution of the disputes ought to be taken as an important circumstance of what the original ought to have contained.
The petitioner had admittedly obtained certified photocopies, which were certified as true copies on 29.10.2009. Indeed, the petitioner has filed this certified copy along with the petition. Against the name Suddin, there is no signature in Ex.R3 along with the petition. The respondent has a grouse against the petitioner in not being truthful even Election Petition. No.4 of 2009 -37- in producing typed copies along with the petition, which is not an exact reproduction of what the certified copies contained. The typed copy makes it appear as though against the name Suddin, he has signed by entering in the column as "sd/- Suddin." In the certified copy obtained by the respondent before filing of the written statement on 15.11.2010, exhibited as R-4, the photocopy which is certified is a replica of what is contained in the certified copy filed by the petitioner. The said document also shows blank space against the name Suddin in the column for signature. R-5, which is the second nomination paper filed by the petitioner and obtained on the same day on 15.11.2010 also does not contain the signature of Suddin. The certified copy obtained by the respondent on 30.10.2009 (RW-1/2) also does not contain the signature of Suddin. It is same story about certified copy obtained for the second set of nominations on 30.10.2009 under Ex.R1/3. It can, therefore, be seen that three sets of nomination papers namely two sets obtained by the petitioner on 29.10.2009, two sets obtained by the respondent on 30.10.2009 and one set obtained by the respondent on 15.11.2010 do not contain the signature of Suddin.
35. Learned counsel appearing for the petitioner would contend that when the original nomination paper was produced by PW-2 namely Durga Parshad, no suggestion was put to him to say that the original contained the signature of Suddin was a later interpolation. I also find that it was a significant omission that the respondent did not suggest to the petitioner that the original produced by him was a fabrication. Learned counsel appearing for the respondent seeks to under-play the omission by owning up the lapse by contending that the certified copy Election Petition. No.4 of 2009 -38- could not have been different from original and when the original produced was different, he was nonplussed to make any suggestion. Even assuming a point as having been scored by the petitioner, it is a judicial duty to examine whether the signature found in the original could have been later interpolated. I have already observed that three sets of documents produced before the Court, which represent the certified copies obtained on three different dates namely on 29.10.2009, 30.10.2009 and 15.11.2010 contained no signature of Suddin. Learned counsel appearing for the petitioner would still urge that respondent could have had no inkling that the petitioner was going to file a petition challenging the rejection of nomination for him to apply for a copy on 30.10.2009. That itself showed that he was creating a false evidence against the petitioner by deliberate manipulation at the time of taking copies from the originals by concealing the signatures found in the originals.
36. I wanted to test the possibility of such a concealment of the signature in the original and take copies at the instance of the respondent to somehow discredit the petitioner and remove him out of the electoral race. The positioning of the signature of Suddin is so peculiar that in my view it is even impossible to have screened merely the signature part and taken photocopies. The name Suddin appears as 7th name and after the said name, there are three other names. The 6th name is Manudin and the 8th name is Abdul Karim. The space for all the 10 names in the original nomination paper itself is barely two inches or less. The names and signatures are, therefore, cramped. The signature of Suddin as found in the original actually overlaps the signature of Election Petition. No.4 of 2009 -39- Abdul Karim. If the signature of Suddin had been there in the original but if it had been screened by a paper or any device at the time of taking a certified copy, some portion of the signature of Karim would have also been concealed. On the other hand, the signature of Karim and the name of Karim as found in the certified copies are comprehensive whole without any form of obliteration. In my view, it would have been impossible to take a photocopy concealing the name and signature of Suddin alone if the original actually had contained his signature. Even a suggestion has been put to the PW3/petitioner in the cross-examination and he has admitted that the signature of Suddin as found in the original PW-1/1 contained some bit of overlapping on the name Abdul Karim following Suddin. The evidence of PW-1 is:-
"The signature of Suddin is affixed overlapping to name of Abdul Karim in Ex.PW-1/1 as well as PW-1/2 (sic)"
37. Even apart from the suspicion that the original excites in the manner in which the signature of Suddin finds cramped, even the evidence of PW3 as regards the signature of Suddin is not convincing. It is the petitioner's case that he was actually present at that time with all the proposers in the nomination form. The signature of Suddin is in Hindi. When he was cross-examined about the language in which the Suddin had signed, it would have been perfectly possible for the petitioner to make a positive assertion if he remembered or he could have simply stated that he did not remember if his memory failed him. If he was giving a wrong answer that was surely suspcious that he was making a wild guess, which betrayed the falsity of his contention. His evidence is "Suddin signs in English, Hindi and Urdu. Suddin has signed Election Petition. No.4 of 2009 -40- the nomination papers in English, may be in Urdu." This prevarication is a clear proof of the falsity of his contention. There is not even a doubt that the expression contained in the Act requiring the nomination to be subscribed by 10 proposers really means that 10 proposers must have signed in the nomination paper. The mere presence of the names of 10 persons would not have been sufficient. This is illustrated by a judgment of the Hon'ble Supreme Court in Kanhaiyalal Vishindas Gidwani Vs. Arun dattatraya Mehta and others AIR 2000 SC 3681. The Hon'ble Supreme Court has observed that the expression 'subscribed' in provision to Section 33 cannot be read differently from the expression 'signed' used in the said section itself. The Supreme Court has explained:-
"The expression 'subscribe' in the proviso cannot be read differently from the expression 'sign' used in Section 33. It is true that when the same statute uses two different words then prima facie one has to construe that there different words must have been used to mean differently. But then it is to be considered in the context in which it is used. In the present case, it is to be noted that these two words are used with reference to proposing a candidate at an election contemplated under the Act. The word 'sign' is used with reference to proposing a candidate of a recognized party candidate while the word 'subscribe' is used for proposing the candidate of a recognized political party candidate. Therefore, it cannot be said that when the Legislature used the word 'subscribed' in Section 33(1) of the Act, it intended it to mean something more than merely signing i.e. there should be application of mind by subscriber before proposing the candidate."
The signature found in the original could not have been there at that time when the nomination paper was presented. I have no doubt in my mind that the true copies originally given to parties represented the true state of affairs of what the original contained but the original had been subsequently tampered with.
Election Petition. No.4 of 2009 -41-
38. Learned counsel appearing for the petitioner vehemently contended that such an inference would be impermissible in the absence of a suggestion to PW-1, who was an official, who had brought the original. The document itself had been brought from the proper custody and it was not possible for the petitioner to have an access. Of Course, it is most desirable that the sanctity of the original had not been broken and brought unsullied to Court. What is ideal does not always match with reality. There is definitely an interpolation, which has happened subsequently and I cannot discard certified copies obtained on three different dates bringing out a certain state of affair with the exclusion of the signature of Suddin could have been manipulated by the respondent. If a manipulation did exist, it could have been in the document produced by him and not in the documents produced by the petitioner himself. I am not prepared to take a guess as to how this manipulation could have been done but I am convinced that it did not contain the signature of Suddin till when the written statement was filed in the election petition.
39. Learned counsel places yet another argument that the best person, who can speak about the same was only the Returning Officer himself and since the onus of proof was on the respondent, he ought to have examined the Returning Officer. In the absence of examination of the Returning Officer, it must only be taken that the respondent did not effectively discharge the onus of proof.
40. There exists a fundamental difference between burden of proof and onus of proof. The burden never shifts. It is fixed on the person, who has to establish a particular fact. On the other hand, the Election Petition. No.4 of 2009 -42- onus of proof shifts depending on the nature of evidence that is given. The burden of proof that a person, who was a candidate from an unrecognized party must have 10 proposers, shall always be on the person who makes affirmation that he had 10 proposers to support his candidature at the time of the nomination. Since the petitioner filed the original itself, it could be stated prima facie that the petitioner had established that his candidature had the requisite number of proposers. But when the respondent was taking upon himself the burden of showing that the signature of one person was a later interpolation, the moment he shows that the certified copies did not contain the signature of one person and also brings out through the quality of evidence of PW-3 himself, I would take the onus as having been sufficiently discharged and the petitioner was to explain as to how the petitioner had not made any mention even at the time when he filed a petition that the signature of Suddin had been deliberately concealed at the time of issuance of the certified copy. It was a case of the petitioner being caught unaware of his own lapse and when he felt fully exposed by the document, which he was relying on by a positive affirmation made in the written statement, the petitioner had made a clumsy job to secure an interpolation. Even in the absence of evidence of the Returning Officer, assuming that the respondent must have cited him as a witness in support of the respondent's defence, I would still hold that the existing evidence was sufficient to discredit the genuineness of Ex.PW- 1/1 and PW-1/2, the original nomination papers. If the nomination itself had not been subscribed by 10 proposers then the rejection of the nomination could be supported even on a ground which was not Election Petition. No.4 of 2009 -43- mentioned by the Returning Officer but which is taken in the defence by the respondent. I find issue No.4 in the affirmative and hold that the nomination papers had not been signed by ten proposers. Issue No.5: Relief
41. Under the circumstances, the petitions filed challenging the rejection of the nominations cannot be sustained. The petitions deserve to be dismissed and accordingly dismissed with costs.
(K. KANNAN) JUDGE February 17, 2012 Pankaj*