Madhya Pradesh High Court
Jitendra Kumar Awwasthi vs Sanjay Yadav (Winning Candidate) Mla on 1 March, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ELECTION PETITION No. 21 of 2019
BETWEEN:-
JITENDRA KUMAR AWASTHI S/O JAGDISH
PRASAD AWWASTHI, AGED ABOUT 46 YEARS,
OCCUPATION: AGRICULTURE R/O. 50, VILL.
KHIRYANI BARGI JABALPUR POST OFFICE
BARGI NAGAR JABALPUR (MADHYA PRADESH)
.....PETITIONER
(ELECTION PETITIONER JITENDRA KUMAR AWASTHI IS PRESENT IN
PERSON)
AND
SANJAY YADAV (WINNING CANDIDATE) MLA
VIDHAN SABHA CONSTITUENCY NO. 96 BARGI
VIDHAN SABHA JABALPUR DIST. JABALPUR MP
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI VIPIN YADAV - ADVOCATE)
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Reserved on : 16.2.2023
Pronounced on: 1.3.2023
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This election petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court passed the following:
ORDER
1. This Election Petition is filed by Jitendra Kumar Awasthi being aggrieved of the action of authority in not permitting him to fill his nomination form for the State Assembly Election for the Constituent Assembly No.96, Bargi Vidhan Sabha for which the voting took place on 28.11.2018 and the results were declared on 11.12.2018 claiming that not 2 permitting the Election Petitioner to contest the election in an arbitrary and illegal manner has rendered the election as void and, therefore, the election to the said Constituent Assembly No.96 Bargi Vidhan Sabha be declared as void.
2. Election Petitioner Jitendra Kumar Awasthi submits that he had purchased nomination form after depositing a sum of Rs.10,000/- prior to the last date of filling up of the nomination form on 9.11.2018. Election Petitioner Jitendra Kumar Awasthi alongwith his Proposer Pyare Lal Jadiya were available in the election room at about 2:55 PM i.e. prior to the notified timing of 3:00 PM. At the time of his entering in the election room where the nomination forms were to be filled, Assistant Returning Officer Smt.Preeti Nagendra after seeking all the papers of the Election Petitioner Jitendra Kumar Awasthi had given him a Token Slip No.4, which was an indication that the election petitioner is entitled to fill nomination form and had entered in the election room prior to the designated time.
3. At about 3:04 PM, Returning Officer Rohit Singh on a dispute having arisen in regard to photograph of another prospective candidate Smt.Keertan Vyas with her counsel or representative had thrown that person out of the room and had threatened his subordinate officers. The election petitioner was carrying a mobile phone in his hand. Returning Officer Rohit Singh thought that he was recording the proceedings, therefore, on such doubt, his mobile phone was taken and upon checking, it was returned back to the election petitioner and when the election petitioner had made a request that he be not insulted, he was threatened and according to the election petitioner, the Returning Officer Rohit 3 Singh had said that he can even use force but without any provocation, the Returning Officer had thrown the election petitioner out of the election room without accepting his nomination form and that became the bone of contention for which the election petitioner had immediately informed the election supervisor and thereafter had given a complaint to the District Election Officer i.e. District Collector.
4. The election petitioner has filed an election petition in terms of the provisions as contained in Section 80 on the grounds enumerated in Section 100 of the Representation of the People Act, 1951. It is alleged that there is violation of the provisions as contained in Section 100(1)(c) of the Representation of the People Act, 1951, which is the foundation of this election petition, namely, any nomination has been improperly rejected.
5. Returning Officer Rohit Singh admits that 9.11.2018 was the last day of filling up of the nomination form and it was his responsibility to accept the nomination forms of all the persons, who were granted entry in the election room upto 3:00 PM. Returning Officer Rohit Singh admits that nobody present in the election room could be forcefully thrown out provided that the person available has a valid nomination form or the person available is a Proposer of such candidate.
6. In reply to Question No.2 before the High Court, Returning Officer Rohit Singh admits that the token arrangement is enforced so that all the persons, who are available in the election room upto 3:00 PM, may wait in the election room for their turn to file their nomination forms. He also admits that all the officers involved in the work of election are trained.
47. Tokens were distributed by Assistant Returning Officer Smt.Preeti Nagendra, who in her turn, admits that the tokens were given as per rules of the election. In Paragraph No.3 Smt.Preeti Nagendra admits that after seeking all the papers from the election petitioner, token was given to him. She also admits that who is to be given token, is a matter on which training is imparted. Thus, it is submitted by Jitendra Kumar Awasthi that when the election petitioner was having a valid nomination form and was waiting for his turn, he could not have been thrown out of the election room in an illegal and arbitrary manner, a fact which is evident from the videography contained in Compact Disc-1. Though the election petitioner initially submits that he would also be pressing Ground-(d) under Section 100(1) of the Representation of the People Act, 1951, which deals with the four aspects, namely:-
"Section 100(1)(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act 5 or of any rules or orders made under this Act,[the High Court] shall declare the election of the returned candidate to be void.]"
but later on accepts that as far as the election petitioner is concerned, he will be concentrating only on Ground-(c) inasmuch as he has not alleged anything in regard to illegal acceptance of the nomination form of the Returned Candidate or of any corrupt practice committed in the interest of the Returned Candidate in regard to improper reception, refusal or rejection of any vote but would like to press that there is non-compliance of the provisions of the Constitution and of the Representation of the People Act, 1951, therefore, he will be pressing his election petition only on Ground-(c) of the grounds mentioned in Sub-Section (1) of Section 100 of the Representation of the People Act, 1951 alongwith non- compliance of the provisions of the Constitution.
8. In his written submissions, the election petitioner has though taken several grounds in regard to Shiv Prasad Ben, Smt, Keertan Vyas and Suresh Satnami but when he was informed that he has not impleaded them as party, the election petitioner fairly submitted that he has no grievance against them except the fact that the Panchnama, which was prepared in relation to his ouster from the election room, Shiv Prasad Ben was fraudulently made a witness whereas he was not present in the election room at the time of the incident. Thus, looking to the fact that Shiv Prasad Ben, Suresh Satnami and Smt.Keertan Vyas have not been impleaded as party-respondents, it is agreed & admitted that their contest to the said election is not under challenge and the election petitioner will 6 be restricting his argument to the main theme of this election i.e. non- acceptance of his nomination form by throwing him out of the election room in an illegal and arbitrary manner.
9. The election petitioner submits that Returning Officer Rohit Singh and Assistant Returning Officer Smt.Preeti Nagendra have accepted in Paragarph No.5 of their deposition that after 3:00 PM on the last date of filling up of the nomination form i.e. 9.11.2018, they were not entitled to give admission to any person in the election room but according to the election petitioner, Shiv Prasad Ben was given illegal entry after the due time. Similarly, at 3:04 PM, Rohit Singh was seen informing Smt.Keertan Vyas that her nomination form was sent outside the room under some confusion. There is allegation of manipulation in the Compact Disc, which according to the election petitioner, was subject to unauthorized editing with a view to suppress the actual conduct of Returning Officer Rohit Singh.
10. It is alleged by the election petitioner that in Question No.40, he had asked Rohit Singh that when he was the Chief Officer, he is responsible for editing in the video recording then the answer given was vague, which proves tempering with the video recording. It is alleged that the Compact Disc in regard to live video recording of the proceedings of the election room was tempered so as to illegally and malafidely restraining the election petitioner from contesting the election of the State Constituent Assembly. It is alleged that Suresh Satnami was also obliged by Returning Officer Rohit Singh for making him a witness against the present election petitioner. Thus, it is submitted that the election 7 petitioner has since been restrained from filling up of his nomination form, the election be declared as void.
11. Election Petitioner Jitendra Kumar Awasthi submits that Paragraph No.6.7.1 of the Returning Officer Handbook, 2018 draws a presumption in regard to validity of every nomination form unless and until it is proved otherwise. It provides that in case of doubt, the benefit of doubt should go to the concerned candidate and the nomination form should be treated to be valid. It provides that the Returning Officer should overlook small technical and clerical errors and should adopt an overall liberal attitude, which will be safe. It also provides that under Sub-section (4) of Section 36, no nomination form shall be rejected unless the error is not verified. The language deployed in Section 36(4) is as under:-
fuokZpu vf/kdkjh dh gsUMcqd 2018 dh /kkjk 6-7- fof/kekU;rk dh /kkj.kk ;g Li"V djrh gS 6-7-1 ,d /kkj.kk gS fd izR;sd ukekadu i= fof/kekU; gS tc rd fd fojks/k izFke n`"V;k Li"V u gks ;k izLrqr u fd;k x;k gSA ukekadu i= dh fof/kekU;rk ds ckjs esa leqfpr lansg dh n'kk esa ,sls lansg dk ykHk lacaf/kr vH;FkhZ dks igqapuk pkfg, vkSj ukekadu i= dks fof/kekU; Bgjk;k tkuk pkfg,A ;kn j[ksa fd tc dHkh fdlh vH;FkhZ ds ukekadu i= dks fcuk leqfpr dkj.k ls vLohd`r fd;k tkrk gS rks bl rgr fuokZpu dh ,d rjQ gVk ldrs gS pquko ;kfpdk esAa blfy, fjVfuZx vkWfQlj dks NksVh&eksVh rduhdh ,oa fyfidh; =qfV;ksa ij dkjZokbZ djus esa rqyukRed :i ls mnkj n`f"Vdks.k viukuk ges'kk lqjf{kr gksrk gSA /kkjk 36 dh mi/kkjk ¼4½ 'kklukns'k vuqlkj ukekadu i= dks vLohdkj ugha fd;k tk;xh tc rd fd =qfV dh iqf"V u gksA 8
12. The election petitioner submits that since he was carrying A4 size paper in his hand, which was admittedly seen by Smt.Preeti Nagendra Assistant Returning Officer on which she had given Token Slip No.4 and all the witnesses have accepted that the nomination form of the election petitioner was not checked, therefore, merely on the basis of the surmises and conjectures, throwing him out of the election room is illegal and arbitrary. He submits that as per Sub-section (4) of Section 36 of the Representation of the People Act, 1951, it is provided that the Returning Officer shall not reject any nomination form on the ground of any defect, which is not of a substantial character. He also submits that the Returning Officer is expected to conduct himself in terms of the provisions of the Representation of the People Act, 1951 and the Rules framed therein. He points out that since the conduct of the Returning Officer Rohit Singh was contrary to the provisions as contained in the Representation of the People Act, 1951 and the Rules framed therein, the non-acceptance of his nomination form and throwing him out of the election room is an act, which has prejudiced the election as he is a popular social worker in his Constituency and if he would have been permitted to contest election then he was sure of winning the election without any challenge from any of the other contesting candidates and in such premises, the election be declared as void on the Ground-(c) of Sub-Section (1) of Section 100 of the Representation of the People Act, 1951.
13. Reliance is placed by the election petitioner on the judgment of Hon'ble the Supreme Court in Nandiesha Reddy versus Kavitha Mahesh (2011) 7 SCC 721 to point out that it is the duty of the Returning Officer to receive the nomination form, inspect it and if there is any shortcoming then point out such shortcoming and even after pointing 9 out of the shortcoming, if it is not removed then the question of rejection of nomination form will arise. He also places reliance on the judgment of Hon'ble the Supreme Court in Sanjay Yadav versus Jitendra Kumar Awasthi decided on 9.1.2020 wherein Three Judges Bench of the Apex Court had refused to entertain Special Leave to Appeal (C) Nos.29097/2019 & 29098/2019 filed on behalf of Returned Candidate Sanjay Yadav.
14. Learned counsel for the respondent on the other hand submits that on 22.1.2020, the High Court had framed following issues, namely, "A- Whether the petitioner who was waiting for his number for submitting his nomination papers in the office on 9.11.2018 was illegally removed from the office by the Returning Officer?
B- Whether the result of the election in respect of the respondent, the Returned Candidate has been materially affected on the ground described in the election petition and as a result thereof, the election of the elected candidate (Shri Sanjay Yadav) deserves to be declared void?"
Vide order dated 21.9.2021, further issues were framed, namely:-
"C- Whether in absence of any allegation against the Returned Candidate in respect of 10 corrupt practice, the election petition is maintainable?
D- Whether the allegation levelled in the election petition is covered under Section 100 of the Representation of the People Act, 1951?"
15. It is submitted by learned counsel for the respondent that the election petitioner examined himself as Witness No.1 and in Paragraph No.13 admitted that the transcript of the Compact Disc is prepared by him, therefore, in absence of a valid certificate, such transcript is not permissible in the eyes of law. The election petition does not fulfill the requirement of Section 83(1)(c) of the Representation of the People Act, 1951, which provides that the election petition shall be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 but the present election petition is not signed by the election petitioner on every page.
16. Reliance is placed by learned counsel for the respondent on the judgment of Hon'ble the Supreme Court in Aay Maken versus Adesh Kumar Gupta & Another (2013) 3 SCC 489 wherein it is held that failure to comply with the requirements of Section 81 of the Representation of the People Act, 1951 obligates the High Court to dismiss the election petition.
17. Learned counsel for the respondent submits that in Paragraph No.17, the election petitioner admits that he had not signed on every page of the documents annexed with the election petition, therefore, the same 11 is contrary to the provisions of Section 83(2) of the Representation of the People Act, 1951. In Paragraph No.21, the election petitioner admits that he did not appear with ten Proposers, which is the requirement of Paragraph 5.6.2 of Chapter-V of the Handbook and even the nomination form, which is enclosed by the election petitioner as Exhibit D/1, was incomplete and not signed by any witness and the proposer, which demonstrates that even at the time of filing of the election petition, the election petitioner did not possess the complete nomination form. The witnesses have not supported the case of the election petitioner and Rohit Singh specifically mentions this fact that the election petitioner had not submitted his nomination form, therefore, in absence of any incriminating material proved against the conduct of the Returning Officer, no indulgence should be shown in the matter.
18. Learned counsel for the respondent submits that the election petitioner has made several allegations against Returning Officer Rohit Singh in Paragraph Nos.7(a), 7(b), 7(c) & 7(f) but has not impleaded him as a party in individual capacity as is required under Section 82(b) of the Representation of the People Act, 1951, which specifically provides that any other candidate against whom the allegation of corrupt practice is made in the petition, is to be impleaded. The election petitioner has not made any allegation against the respondent Returned Candidate, therefore, the election petition is not covered under the provisions of Section 100 of the Representation of the People Act, 1951, is made out.
19. It is submitted by learned counsel for the respondent that no ground under Section 100(1)(c) of the Representation of the People Act, 1951 is made out as the election petitioner's nomination form was not accepted 12 and it is not a case of rejection, which is covered under Section 100(1)(c) of the Representation of the People Act, 1951. The election can be declared as void on the ground of corrupt practice as defined in Section 123 of the Representation of the People Act, 1951 but in the entire election petition, there is no allegation in respect of the corrupt practice mentioned under Section 123 of the Representation of the People Act, 1951, therefore, having failed to prove any corrupt practice, the election petition is liable to be dismissed.
20. To bolster his contention, learned counsel for the respondent places reliance on the judgments of Hon'ble the Supreme Court in Hari Shanker Jain versus Sonia Gandhi (2001) 8 SCC 233, L.R.Shivaramagowda & Others versus T.M.Chandrashekar (Dead) By Lrs & Others (1999) 1 SCC 666, Shambhu Prasad Sharma versus Charandas Mahant & Others (2012) 11 SCC 390, Jitu Patnaik versus Sanatan Mohakud & Others (2012) 4 SCC 194, Virendra Kumar Saklecha versus Jagjiwan & Others (1972) 1 SCC 826.
21. It is submitted by learned counsel for the respondent that the election petition can be filed under Section 81 of the Representation of the People Act, 1951 by any candidate at such election or any elector but the election petitioner has failed to prove that he was a candidate or any elector, therefore, this election petition is also barred by the provisions of Section 81 of the Representation of the People Act, 1951. In support of said contention, he places reliance on the judgment of Hon'ble the Supreme Court in H.R.Devanna versus G.Puttaswamy Gowda & Others AIR 1999 SC 768 wherein it is held that any infirmity in compliance of Section 83 of the Representation of the People Act, 1951 13 would not entail dismissal of the election petition as under Section 86 of the Representation of the People Act, `1951, the only non-compliances of Sections 81, 82 & 117 of the Representation of the People Act, 1951 are the grounds for dismissal of the election petition.
22. After hearing learned counsel for the parties and going through the record, it is true that Election Petitioner Jitendra Kumar Awasthi deposed that he was given Token Slip No.4 after he had entered in the election room and this token slip was given by Assistant Returning Officer Smt.Preeti Nagendra. As per orders of the Returning Officer, the gates of the election room were closed at 3:00 PM. In Paragraph No.3, he deposes that after closing of the doors, the Returning officer had directed the Assistant Returning Officer to give token slips in the order in which the persons had entered to fill their nomination forms. It is thereafter mentioned that after a minute or two, somebody tried to slipin a document/photo under the gate and he was successful in this attempt when the Returning Officer had scolded that person. After ensuring that the photo was brought by the person belonging to the camp of Smt.Keertan Vyas, the Returning Officer started scolding her though Smt.Keertan Vyas was apologetic. The election petitioner had asked the Returning Officer to not to use inappropriate words while scolding a woman, as a result of which, the Returning Officer started scolding the Election Petitioner and had taken his mobile phone on the pretext that he was carrying out some recording but later on, his mobile phone was returned back to him.
23. The allegation of the election petitioner is that the Returning Officer was bent upon to insult him without any reason and throw him 14 out of the election room. He was thrown out of the election room without accepting his nomination form and that gives rise to the cause of action for filing the election petition. In cross-examination, this witness admits that except for verification, he has not signed on every page of the election petition.
24. The election petitioner admits in Paragraph No.16 of his cross- examination that he had even not signed on every page of the amended election petition. In Paragraph No.17, he admits that upto 3 O'clock on 9.11.2018, he was required to file his nomination form and respondent Sanjay Yadav had filed his nomination form prior to this time limit. He admits that his nomination form was not rejected. He admits that the nomination officer has been given discretion as to the acceptance of the nomination form of a particular person or to reject it. This witness admits that he had alleged that the Returning Officer was indulging in hooliganism (xqaMkxnhZ).
25. In Paragraph No.21, the election petitioner admits that at the relevant time, no Advocate was accompanying him. He admits that at that time of filling up of the nomination form, Proposers are required. Number of such Proposers should be 10. In Paragraph No.22, he admits that Exhibit D/1 is the nomination form. In Paragraph No.23, he denies that he had not produced original documents of Exhibit D/1 before the Court. He admits that no recognised party had declared him as its candidate.
26. There is a suggestion that since the election petitioner had no Proposer, therefore, his nomination form could not have been accepted. Thought the aforesaid suggestion is denied but the witness in Paragraph 24 admits that on Exhibit D/1 on 'A to A' part, his name is not mentioned.
15He admits that as per the Enclosures 13, the affidavit alongwith Exhibit D/1 on 'B to B part' there are no signatures of any witness nor name of the witnesses or the date is mentioned. He admits that on the declaration, there are no signatures of Proposer Praye Lal Jadiya but only his name is mentioned. He admits that if entries are not filled by Proposer Pyare Lal Jadiya then the Advocate must be knowing this fact. In Paragraph No.25, he denies the suggestion that no Proposer had gone with him in the election room but in the very next sentence, he admits that if this fact is not mentioned in the election petition then he cannot give any reason for it.
27. In Paragraph No.25 itself, the election petitioner admits that after obtaining the token slip from the Assistant Returning Officer, the permission was given to approach the Returning Officer. In Paragraph No.26, he admits that the photographs of Proposers were not enclosed on the declaration. In Paragraph No.28, he deposes that he has no intimation whether the document Exhibit D/1 is in the prescribed format or not. In Paragraph No.29, he admits his closeness with Smt.Keertan Vyas. Smt.Keertan Vyas is also a resident of Bargi Legislative Assembly Area.
28. Rakesh Mishra is the Contractor, who had videographed the proceedings in the area of election room so also inside the election room. He admits that he had subcontracted that work of recording the proceedings outside the election room to Manish Kori and for recording the proceeding inside the election room to Naresh Patel.
29. Manish Kori is examined as Petitioner Witness No.3. He admits that he was given a card for entering in the election area. This witness 16 deposes that if some proceedings were going on then they used to record otherwise they used to switch off the camera.
30. Naresh Patel is examined as Petitioner Witness No.4. There is no suggestion to him that there is tempering in recording of the cassette but this suggestion is denied.
31. The Deputy District Election Officer & Right To Information Officer, Jabalpur Shri Om Namah Shivai Arjariya is Petitioner Witness No.5. This witness admits that on payment of necessary fee, the Compact Disc of the recording was handed over to the election petitioner on 6.2.2019. The Compact Disc was prepared on 4.2.2019. The Compact Disc contains the signatures of Assistant Returning Officer Shri Chourasiya working under him and, therefore, he identified his signatures. The certificate provided under Section 65B of the Indian Evidence Act, 1872 is Exhibit C/25, which contains the signatures of PW.5 Shri Om Namah Shivai Arjariya.
32. The Assistant Returning Officer Smt.Preeti Nagrendra is Petitioner Witness No.6. She admits that she had distributed token slips to all the candidates and had not taken anybody's side. These token slips are called as Parchi. She admits that since the gates of the election room were closed at 3:00 PM, she had only seen the Vidhik Nikshap Ki Raseed and had distributed the token slip to the person, who had shown her the receipt. In Paragraph No.2, she admits that the token slips are distributed so that every person may wait for his/her/their turn in the election room. She admits that the persons, who are given entry, can produce their nomination forms whenever their turn comes and their name is called. In Paragraph No.3, she deposes that she had seen the paper of Jitendra 17 Kumar Awasthi and had given him token slip for waiting. There is an elaborate cross-examination on this witness but the theme of the cross- examination is that the election petitioner was given entry in the election room after verifying the nomination form and the spirit of the argument is also the same that she had given entry to the election petitioner after verifying his nomination form and, therefore, there was no reason for throwing the election petitioner out of the election room.
33. However, the fact of the matter is that in Paragraph No.2 Smt.Preeti Nagendra has specifically deposed that she had only seen the Vidhik Nikshap Ki Raseed while giving the token slip and in Paragraph No.3, she has used the word 'Kagaj' which is singular and not plural. Even otherwise, this is corroborated from document Exhibit D/1 that the complete nomination form was not available with the election petitioner and it does not contain signatures of 10 Proposers as is the requirement of law.
34. In cross-examination of Smt.Preeti Nagrendra, she denies the suggestion that she had included the forged witness. She also denies the fact that she had given unauthorized entry to Shiv Prasad Ben and Smt.Keertan Vyas. She also denies the suggestion that she had given unauthorized entry to the son of Smt.Keertan Vyas and her counsel or Shiv Prasad Ben or any other person. In reply to Question No.9, she admits that she had informed the person waiting outside that after 3 O'clock, no document will go inside. She also denies the suggestion that she carries any enmity against the election petitioner as she had registered a case against the election petitioner at the time of farmer's agitation. She also denies the suggestion that she is intermixed with respondent Sanjay 18 Yadav. In reply to Paragraph No.27, she clearly deposes that the election petitioner was causing obstruction in the government work and, therefore, he was thrown out of the election room. She states that he was shouting and causing obstruction in the Government work.
35. Shri Rohit Singh, the then Returning Officer, is also examined in support of the case of the election petitioner. He deposes that 9.11.2018 was the last date to fill the nomination forms. It was his responsibility to accept the nomination forms, which were to be presented to him by all the candidates, who had entered in the election room upto 3:00 PM possessing valid documents. In reply to the Question No.1, he categorically deposes that only such person is entitled to remain in the election room, who is a candidate himself or is a Proposer.
36. In reply to Paragraph No.2, Rohit Singh deposes that mere issuance of token slip is not a validation of right of a person to file the nomination form or to possess the nomination form. In reply to Paragraph No.3, he deposes that the token slips are given only to those who claim that they have come to fill the nomination forms. In the election room besides the Returning Officer, one authorized Assistant Returning Officer receives the nomination forms and there are two more Assistant Returning Officers, who distribute the token slips and/or verify the documents.
37. In reply to Paragraph No.3, Rohit Singh admits that he cannot depict the size of papers or the papers are related to which subject. In reply to Paragraph No.15, this witness has referred to Clause 5.7.2 of the Returning Officer Handbook, 2018 according to which the prescribed time to fill the nomination form is between 11:00 AM to 3:00 PM. He clearly deposes that the election petitioner had entered into unnecessary 19 debate and despite counselling when he did not stop then with a view to maintain proper arrangements in the election room and the sanctity, out of necessity, he was sent out of election room. In this regard, a Panchnama was prepared and it was forwarded by him to the District Election officer. He deposes that the election petitioner had not produced any nomination form either before him or before the Assistant Returning Officer within the prescribed time, therefore, there was no occasion for verification of the documents. He deposes that at the time of filling up of the nomination form, four things are required:- (1) Nomination Form (2) Affidavit (3) One Supporting Affidavit & (4) Receipt of Security Deposit. He admits that at the time of filling up of the nomination form, there is no need for any photograph.
38. In reply to Paragraph No.21, Rohit Singh admits that as per directives of the Election Commission, if there are any clerical errors then they are notified to the concerned candidate and he is directed to correct them because as per the directives of the Election Commission, without there being any solid reason, the election being an important subject, the nomination form cannot be rejected on account of clerical errors. He deposes that at 6:20 PM, he was taking affidavit from the concerned candidate. After taking forms at 3:00 PM, number date and time is mentioned at every form.
39. In reply to Paragraph No.22, Rohit Singh deposes that issuance of token slip does not mean that at the relevant time that person holding the token slip was having the nomination form. This witness exhibited the Panchnama Exhibit P/26 alongwith 4 Annexures P/26(1), P/26(2), P/26(3). In the form of Question No.26, the election petitioner has 20 himself suggested to the Returning Officer that a candidate is permitted to enter in the Office of the Returning Officer with 5 persons. These persons can enter in the election room on the basis of the slip given by the Returning Officer. Thus, it is evident that only 5 persons were entitled to enter into the election room whereas as per Clause 5.6.1 of the Returning Officer Handbook, 2018, any candidate filling the nomination form is required to have 10 Electors from the concerned election area as Proposers.
40. The election petitioner asked Rohit Singh that at 3:08 PM, Rohit Singh had asked Smt.Preeti Nagendra to prepare a Panchnama against him. Rohit Singh replied that he had directed Rohit Verma to prepare the Panchnama and after viewing the Compact Disc to refresh his memories, he confirmed that the directions were given to the Tahsildar and not to Smt.Preeti Nagendra. The Election Petitioner admits that he had asked his question on incorrect basis. Rohit Singh confirms the contents of the Panchnama Exhibit P/26(1) and deposes that after it was confirmed that Jitendra Kumar Awasthi was not having a nomination form and was arguing on the basis of other persons then the authorities were asked to prepare the Panchnama (Question No.32 and its Answer). There is a suggestion that the Panchnama was not prepared on the spot and was prepared subsequently and that suggestion was also denied.
41. In reply to Question No.44, the Returning Officer replied that on the basis of the report of the Assistant Returning Officer as contained in Exhibit P/26(c), Exhibit P/26(2)(c) and Exhibit P/26(3)(c), he wrote to the election officer that the election petitioner was not having requisite documents and he further deposes that Smt.Preeti Nagendra had informed 21 him that on the basis of the Security Deposit Receipt, she had given entry to the election petitioner in the election room. As per Compact Disc, Jitendra Kumar Awasthi was seen telling the police personnel available on the gate that his documents be allowed to enter in the election room. Smt.Preeti Nagendra had informed him that except for one person, the others were having nomination forms. This thing is mentioned in the joint report also. At 15.05.35 hours, as per Compact Disc, Jitendra Kumar Awasthi is seen saying that when guard had sent back his man then what will he do? At 15.07.56 hours, Jitendra Kumar Awasthi is seen saying that when you have returned my person from outside without taking documents then what will he do? This utterance in 15.08.49 hours is proof that the election petitioner was not having the nomination form. It is further deposed that the Assistant Returning Officer Rohit Verma asked him thrice where is his nomination form when the election petitioner said that his nomination form was not permitted to come inside, which is an evidence that he was not having the nomination form.
42. In a specific Question No.45 put by the election petitioner to the Returning Officer that why these facts were not mentioned in his report to the District Election Officer, the Returning Officer replied that as per the joint report of the Assistant Returning Officer(s) and the Returning Officer contained in Exhibit P/26(c), it is evident that the candidate was not having nomination form till he left the election room. The suggestion in regard to tempering of the Compact Disc is denied in reply to Question No.54. This witness also deposes that all the forms were taken upto 3:00 PM and no form was accepted after 3:00 PM. Rohit Singh was asked that the Letter Exhibit P/26(3)(c) was prepared two days' back is denied by this witness Rohit Singh and again it is reiterated that the election 22 petitioner was not having the relevant documents when he was sent out. In reply to Question No.105, the Returning Officer categorically replies that the form of Shiv Prasad Ben was taken at 2:56 PM. In reply to the earlier question, he had pointed out that the nomination form was given by Shiv Prasad Ben on 9.11.2018 at 2:56 PM and was marked as Exhibit P/30(c). In cross-examination, this witness admits that when he got summoned to give evidence then he was neither given copy of the election petition nor the documents enclosed alongwith it. He further admits that he has no knowledge about the personal allegation made against him in the election petition. He admits that the election petitioner did not deposit any nomination form till he was in the election room. He admits that the election petitioner was not having any nomination form and accepting the Panchnama even the Central Observer and the District Election Officer had filed a complaint given by the election petitioner.
43. The election petitioner examined one Ashish Mishra S/o. Shri Shyama Bhaiya Mishra, Director of DIMS Lab as Petitioner Witness No.8. In examination-in-chief, this witness admits that since he was behind and the election petitioner and his Proposer Pyare Lal Jadiya had entered in the election room at about 2:59 PM, therefore, he was not given entry in the election room as the gates were closed at 3:00 PM. After 10-15 minutes, the election petitioner had come out of the election room and had addressed the media when he discovered that the election petitioner was not allowed to fill the form. In cross-examination, he admits that he was accompanied by the election petitioner. He admits that he has not brought any authorization letter to the Court. He could not give details of other persons, whose names were mentioned in the authorization letter. In reply to Question No.6, he admits that the 23 authorization letter, which was given to him, was on A4 size paper. He had neither checked the nomination form of the election petitioner nor it contains his signatures. In reply to Paragraph No.7, he admits that he cannot say that whether Pyare Lal Jadiya had signed on the nomination form or not because the form was with the election petitioner. In cross- examination, he admits that he was not made a Proposer and since he does not have any relationship with Pyare Lal Jadiya in regard to "fy[kki<h", therefore, he does not recognise his signatures.
44. Respondent Sanjay Yadav did not adduce any evidence in support of his case.
45. All four issues, namely, whether the election petitioner was illegally removed from the Office of the Returning Officer and the said removal materially affected the result of the election of the returned candidate are intertwined and similarly, Issue No.C whether in absence of any allegation against the Returned Candidate as regards the corrupt practice, the election petition is maintainable and whether the allegation levelled in the election petition is covered under Section 100 of the Representation of the People Act, 1951 are to be examined in the light of the law on which reliance is placed by the rival parties.
46. Reliance placed by the election petitioner on the judgment of Hon'ble the Supreme Court in Nandiesha Reddy versus Kavitha Mahesh (supra) wherein it is held that the person, who presented his nomination papers, within time but the Returning Officer refused to receive the same on the ground of some defect, is a "candidate" entitled to file election petition in terms of the provisions as contained in Section 81 and Section 33(4) of the Representation of the People Act, 1951. The 24 Returning Officer is duty bound to receive nomination papers together with Annexures presented before him. The defect, if any, should be allowed to be rectified. If a person fails to rectify the defect then only the question of rejection of nomination papers would arise. It is further held that a candidate not set up by any recognised political party, the nomination paper is required to be subscribed by 10 Electors as required by first proviso to Section 33(1) of the Representation of the People Act, 1951. His averment is to be assumed to be true at preliminary stage of challenge to maintainability of the election petition.
47. Section 33(1) of the Representation of the People Act, 1951 provides that on or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency.
48. Thus, it is apparent that the nomination form was to be delivered to the Returning Officer upto 3:00 PM. As per first proviso to Section 33(1) of the Representation of the People Act, 1951, since admittedly the election petitioner was not set up by a recognised political party, he was required to get his nomination form subscribed by 10 Proposers being Electors of the Constituency. The election petitioner has enclosed his 25 nomination form as Annexure P/4, which has been marked as Exhibit D/1 on 27.10.2021 and admittedly it does not contain signatures of 10 Proposers. On Page-1 of the nomination form, necessary details have been filled. As per Enclosure 13 (Chapter-V Paragraph-5.5.2), which is a format of the additional affidavit to be filled by the election petitioner, there are no signatures of the election petitioner at the designated place marked as "B to B" while infact all the necessary details from "C to C"
"D to D" & "Y to Y" have been left blank. There is a declaration form to be filled by the candidate/his election agent/proposer at the time of submission of the photograph of the candidate although it contains the name of Pyare Lal Jadiya but his signatures are missing.
49. Thus, it is evident that the election petitioner was not having duly filled and complete nomination form as per the requirement of Section 33(1) of the Representation of the People Act, 1951 and admittedly it was not submitted before the authorities upto 3:00 PM, therefore the law laid down in Nandiesha Reddy versus Kavitha Mahesh (supra) will not be applicable to the facts & circumstances of the present case on two counts, firstly, the candidate is a person, who presented his nomination form within time but the Returning Officer refused to receive the same on the ground of some defect is not made out and secondly in absence of signatures of 10 Electors from the Constituency as Proposers means that the election petitioner was not duly nominated to submit his nomination form.
50. In the present case, no nomination papers were presented upto 3:00 PM as is clear from the evidence of the Returning Officer Rohit Singh. The election petitioner was not having complete nomination form 26 inasmuch as he admits that only five persons were allowed to be given entry in the election room on the basis of a slip issued in this behalf by the authorities but the requirement of law is to deposit a form in case of a candidate not set up by any recognised political party, which is duly subscribed by 10 Electors. When the nomination form filed by the election petitioner as Exhibit D/1 is examined then it is evident that the nomination form does not contain the signatures of 10 Proposes. The defect could not have been rectified even if it is presumed for the sake of argument that the election petitioner was possessing the nomination form as it was incomplete in all respects and was not deposited with the authorities within the prescribed time.
51. It is not the case of the election petitioner that he presented the nomination form in time together with Annexures and the Returning Officer refused to receive the nomination form on account of any defect while infact the present case is totally distinguishable from the facts of Nandiesha Reddy versus Kavitha Mahesh (supra) inasmuch as neither the nomination form was complete as is evident from Exhibit D/1 as it did not contain the signatures of 10 Proposers, which is the mandatory requirement as per Section 33(1) of the Representation of the People Act, 1951 nor it was presented upto 3:00 PM or the election petitioner had shown any willingness to present the same when he was escorted outside the election room.
52. A careful perusal of the Compact Disc produced by the election petitioner reveals that nowhere the election petitioner is seen saying to the Returning Officer or his Assistants to first take his nomination form and then allow him to go out of the election room. It is only outside the 27 election room, he made utterances to the media that he was thrown out without accepting his nomination form. Though it is not material but relevant that in the Compact Disc prepared outside the election room where the election petitioner is prominently shown, he did not make any attempt even to show his nomination form to the media personnel whom he was addressing, which would have been a proof of his possession of a complete nomination form and also a proof of bonafide interest in contesting the election, therefore, the pronouncement of law rendered by the Apex Court in Nandiesha Reddy versus Kavitha Mahesh (supra) is not applicable to the facts & circumstances of the present case.
53. Reliance is placed by learned counsel for the respondent on the judgments of Hon'ble the Supreme Court in Hari Shanker Jain versus Sonia Gandhi (supra), L.R.Shivaramagowda & Others versus T.M.Chandrashekar (Dead) By Lrs & Others (supra), Shambhu Prasad Sharma versus Charandas Mahant & Others ((supra), Jitu Patnaik versus Sanatan Mohakud & Others (supra) and Virendra Kumar Saklecha versus Jagjiwan & Others (supra) to contend that unless the corrupt practice is alleged, the election cannot be set aside.
54. In the present case, it is admitted and not disputed by the election petitioner himself that there was no corrupt practice as far as respondent Sanjay Yadav is concerned. The election petitioner is not alleging any corrupt practice against respondent Sanjay Yadav but is only submitting that because of denial of the Returning Officer to accept his nomination form, the result of the election has been materially affected. Thus, it is evident that the bone of contention is restricted only to denial of the Returning Officer to accept the nomination form and to answer this, as 28 has been discussed above, the election petitioner was required to prove that he was in possession of a valid nomination form completed in all respect. This nomination form was having substantial compliance and was within the prescribed format.
55. In Shambhu Prasad Sharma versus Charandas Mahant & Others (supra), the Apex Court has held that the substantial compliance with prescribed format is enough for acceptance of nomination form. As per law laid down by Hon'ble the Supreme Court in Union of India versus Association for Democratic Reforms (2002) 5 SCC 294 and the directions issued by the Election Commission to make its disclosure of any dues outstanding against the candidate towards any financial institution or Government compulsory, by filing an affidavit, then non- filing of affidavit may render the nomination paper non est. The Apex Court held that when affidavit is filed but its format is defective then acceptance or rejection depends upon whether the defect was of substantial character. The format of nomination paper is substantially complied with then every departure from prescribed format cannot be a ground for rejection thereof.
56. In the present case, as discussed above, the affidavit did not contain signatures of the candidate. The material details, which were to be filled, were left blank, which demonstrates that the nomination paper was incomplete. Coupled with the fact that the nomination form was not submitted and no attempt is seen to submit such nomination form besides it being incomplete in all respects and not being filed within the prescribed time, it cannot be said that the nomination form was tendered to the authorities and the authorities were required to scrutinize it.
2957. Section 100(1)(c) of the Representation of the People Act, 1951 deals with improper rejection of a nomination form. A nomination form not tendered cannot be subject to either acceptance or rejection. Even if non-acceptance is hypothetically extended to mean improper rejection then also to prove his case within the parameters of Section 100(1)(c) of the Representation of the People Act, 1951, the election petitioner is required to demonstrate that he had complete nomination form in terms of the proviso below Section 31(1) of the Representation of the People Act, 1951 and it was tendered within the time prescribed under Section 31(1).
58. Since both these aspects are missing, therefore, it cannot be said that the nomination form was improperly rejected. There is no evidence of any corrupt practice against Returned Candidate Sanjay Yadav. As the election petitioner has accepted that there was no corrupt practice on the part of the Returned Candidate, therefore, when there are no allegations that the Returning Officer refused to accept the nomination at the instance of the Returned Candidate or to favour the Returned Candidate and as discussed above, the Returning Officer was not made a party in his individual capacity to permit him to rebut the personal allegation, in my opinion, none of the issues framed are made out.
59. The election petitioner admittedly did not submit his nomination form upto the prescribed time and admittedly he was removed from the Office by the Returning Officer after 3:00 PM, therefore, Issue No.A as to whether the election petitioner was illegally removed by the Returning Officer is answered in negative.
60. In the State Assembly Election for the Constituent Assembly No.96, Bargi Vidhan Sabha for which the voting took place on 30 28.11.2018 and the results were declared on 11.12.2018, the total number of voters were 220702, Returned Candidate Sanjay Yadav got 86901 votes and 14 other eligible candidates contesting the election got 83365 votes and 3091 voters selected Option "None Of The Above", therefore, in the light of the above-mentioned statistics, it cannot be said that the absence of the election petitioner in the election fray could have materially affected the election of the Returned Candidate Sanjay Yadav requiring it to be declared as void, Issue No.B too needs to be answered against the election petitioner.
61. Issue No.C has been answered by the election petitioner himself that he has not made any allegation of corrupt practice yet the election petition could have been maintainable in terms of Ground-C provided in Section 100(1) of the Representation of the People Act, 1951. Thus, the election petition can be held to be maintainable even in absence of allegation of corrupt practice on the said ground alone but as discussed above, since that ground contained in Clause-C of Section 100(1) of the Representation of the People Act, 1951 too is not made out, therefore, the Issue No.D is also answered against the election petitioner.
62. Resultantly, Election Petition No.21/2019 filed by Election Petitioner Jitendra Kumar Awasthi against Returned Candidate Sanjay Yadav fails and is dismissed.
63. Parties are directed to bear their own cost as incurred in Election Petition No.21/2019.
64. Record, if any, be sent back forthwith.
(VIVEK AGRAWAL) JUDGE amit.
Digitally signed by AMIT JAIN Date: 2023.03.01 17:11:17 +05'30'