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for contesting election from 30-Patna Sahib Parliamentary Patna High Court E.P. No.6 of 2009 dt.05-09-2012 Constituency as a candidate of Lok Dal party. Having filed the nomination paper petitioner was granted receipt, Annexure-2 asking him to appear for scrutiny of nomination paper on 20.4.2009 at 11 A.M., check list of documents, Annexure-1 indicated that required documents have been filed by the petitioner along with nomination paper. Having filed the nomination paper petitioner was telephonically informed to come to the confidential section of the office of the Returning Officer on 19.4.2009 at 1.40 P.M. to receive an urgent letter. In the light of the instruction petitioner came to the confidential section at 2 P.M. but was kept waiting for an hour and thereafter told that his presence is no more required, whereafter petitioner returned back. In compliance of the instruction given in the receipt to appear for scrutiny of his nomination paper on 20.4.2009 at 11 A.M. petitioner appeared for scrutiny of his nomination paper, he was called in the chamber of the Returning Officer and after scrutiny of his nomination paper no objection was raised by the Returning Officer as he was satisfied with the contents of the nomination paper and asked the petitioner to leave. The list of validly nominated candidate was published on the notice board on 21.4.2009 at 4.30 P.M. whereafter petitioner came to know that his name is not included in the list of the validly nominated candidate, petitioner submitted application before the Magistrate on duty, who neither received application nor allowed the petitioner to Patna High Court E.P. No.6 of 2009 dt.05-09-2012 appear before the Returning Officer and thus petitioner was deprived of the reason which persuaded the Returning Officer to reject his nomination paper. On 22.4.2009 petitioner again visited the office of the Returning Officer but there was none to receive his application with requisition for grant of certified copy of the order by which his nomination paper was rejected. The petitioner thereafter communicated the illegal rejection of his nomination paper to the Chief Election Commissioner, New Delhi under fax message dated 22.4.2009 which was transmitted at 14.18 hours annexing the copy of representation dated 21.4.2009. Both the applications are contained in Annexures-3, 3/1 to the election petition. In paragraph-13 of the election petition petitioner has stated that when the free copy of the order rejecting his nomination paper was not given to the petitioner he was compelled to file requisition no.429 dated 25.4.2009, Annexure-4 for obtaining certified copy of the order rejecting his nomination paper. In paragraph- 14 of the election petition petitioner has submitted that he was never furnished the certified copy pursuant to requisition dated 25.4.2009. In paragraph-15 of the election petition petitioner has stated that on 25.6.2009 he came to the office of the Returning Officer/ election office and was informed that he is required to deposit Rs.800/- for the non- judicial stamp excluding 170 folios for obtaining certified copy of the order rejecting his nomination which could not be deposited/submitted Patna High Court E.P. No.6 of 2009 dt.05-09-2012 for want of availability of personnel in the election office. In paragraph- 16 of the election petition petitioner has asserted that as neither the free copy nor certified copy of the order rejecting his nomination paper was given, he had no option but to file the election petition without annexing the order rejecting his nomination paper. In paragraph-17 of the election petition it is stated that petitioner was not being given certified copy of the order rejecting his nomination paper as the authorities wanted to restrain him from filing the instant election petition within the period of limitation i.e. 45 days from the date of declaration of the result of the impugned election i.e. 30.6.2009. In paragraph-18 of the election petition it has been asserted that refund of the security deposit of Rs.10,000/- has also not been allowed to the petitioner. In paragraphs-20, 21, 22 petitioner has asserted that there were 33 candidates who desired to contest the impugned election but as the Electronic Voting Machine(E.V.M.) could provide for only 16 candidates Returning Officer adopted the tactics to deliberately reject the nomination paper of remaining candidates including the petitioner so as to enable him to conduct the impugned election with only one E.V.M. Such tactics was adopted by the present Returning Officer even in the 31-Patliputra Parliamentary Constituency where also 16 candidates were allowed to contest the election. In paragraph 23 of the election petition election petitioner has stated that he is a senior citizen, Patna High Court E.P. No.6 of 2009 dt.05-09-2012 a social activist who believes in free and fair election but the conduct of the Returning Officer while conducting the scrutiny of nomination paper of petitioner and others was not at par with the expectations under the law. In paragraph-24 of the election petition petitioner has asserted that he is unaware of the ground on which his nomination paper was rejected. In paragraph-25 of the election petition petitioner has asserted that because of omission and commission of the Returning Officer he was deprived of his statutory right to contest the Parliamentary election. In paragraph-26 of the election petition petitioner has asserted that he is attached to the people and their ground realities and in the event, his nomination paper would have been accepted there was every chance of his victory as he is not only a trade union leader but also rendering service to the downtrodden. In paragraph-28 of the election petition petitioner has asserted that he was prevented from contesting the election because of the latent administrative pressure as there is alliance between the Janta Dal United(JDU) and the Bhartiya Janta Party(BJP) for ensuring the victory of the sole respondent who is an important leader of the BJP. In paragraph-29 of the election petition petitioner asserted that earlier also he had contested Assembly Election, 2005 in February, 2005 from Bakhtiyarpur Assembly Constituency and he filled up the nomination form for 30-Patna Sahib Parliamentary Constituency in the same manner in which he had filled up the nomination form for Patna High Court E.P. No.6 of 2009 dt.05-09-2012 Assembly Election, 2005 held in February, 2005, which was not rejected. In paragraph-30 of the election petition petitioner has asserted that the nomination paper filed by him for contesting 2009 Parliamentary Election from 30-Patna Sahib Parliamentary Constituency has been improperly rejected. In paragraph 31 of the election petition petitioner has made prayer to set aside the election of the sole respondent held during 2009 Parliamentary Election from 30- Patna Sahib Parliamentary Constituency with direction to the authorities to hold fresh election for the said constituency.

3. Sole respondent filed written statement stating in paragraph-1 that the election petition is not maintainable and is fit to be dismissed. In paragraph-2 of the written statement sole respondent has stated that election petition is fit to be dismissed summarily under Sub- section-(1) of Section 86 of the Act for non-compliance of Section 81 of the Act as the election petition does not contain the date of the impugned election as also the full signature of the election petitioner on every page of the election petition, except on the last page beneath the prayer portion. In paragraph-3 of the written statement sole respondent has stated that contents of paragraphs-2, 3, 4, 6, 9 to 11, 14, 15, 18, 20 and 21 appears to be in the nature of corrupt practice but in fact the allegations contained in the said paragraphs are not corrupt practice as defined under Section 123 of the Act. In paragraphs-4, 32 of the written Patna High Court E.P. No.6 of 2009 dt.05-09-2012 statement sole respondent has stated that the allegations contained in paragraph-28 of the election petition is allegation of corrupt practice as per Sub-section-(7) of Section 123 of the Act but election petitioner has miserably failed to give full particulars and statement of the corrupt practice, as is required under Sub-section-(1)(b) of Section 83 of the Act. It is further stated in the said paragraph that election petitioner has not stated either in paragraph-28 or in any other paragraphs of the election petition the manner in which sole respondent solicited help from the ruling dispensation as also the officials conducting the election for success of his election indicating the date, place and time of soliciting such help from the ruling dispensation or the officials conducting the election. It has also not been stated in the election petition the name of the functionaries of the ruling dispensation including the officials who have rendered help to the sole respondent for success of his election. For failure to furnish the aforesaid particulars in the election petition it has further been stated in the said paragraph that the election petition is fit to be dismissed for non- compliance of the mandatory provisions of Section 83 of the Act read with order 7 Rule 11 of the C.P.C. In paragraph-5 of the written statement sole respondent has stated that the verification and affidavit in support of the election petition is defective, as the same is not in accordance with order 6 Rule 14 of the C.P.C. In paragraph-7 of the Patna High Court E.P. No.6 of 2009 dt.05-09-2012 written statement sole respondent has denied the averments made in paragraph-2 of the election petition asserting that petitioner while submitting his nomination paper did not comply the mandatory provisions of Section 33 of the Act read with form 2A, Part III(a) of the prescribed form of the nomination paper issued under Rule-4 of the Conduct of Election Rules, 1961 as he did not declare his actual age in the relevant column of Part III(a) of the nomination form, which indicated that he has completed 25 years of age, though in the verification and affidavit enclosed with the nomination form he indicated his age as 60 years. In paragraph-10 of the written statement sole respondent has stated that the petitioner has not stated in the election petition that the signature of his 10 proposers were verified by the Returning Officer or any other authorized officer including the fact that petitioner had made available his 10 proposers before the Returning Officer for verification of their signatures. Aforesaid omission according to the sole respondent is sufficient ground to reject the nomination paper of the election petitioner. In paragraph-11 of the written statement sole respondent has stated that the contents of paragraph-6 of the election petition is not relevant for the decision of the election petition as the contents thereof is a matter between the petitioner and the staff and others of the confidential section of the office of the Returning Officer. In paragraph-12 of the written statement Patna High Court E.P. No.6 of 2009 dt.05-09-2012 sole respondent has stated that Annexure-2 in form 6 of the nomination paper is the receipt showing filing of the nomination paper by the election petitioner asking him to appear for scrutiny of his nomination paper on the date and time indicated in the notice. In the said paragraph it has further been stated that the contents of paragraph-7 of the election petition is incorrect besides being motivated. It has further been stated in the said paragraph that scrutiny of all the nomination papers filed for contesting the impugned election was conducted by the Returning Officer on the date and time indicated in Annexure-2 in presence of the candidates including the petitioner and during the scrutiny of the nomination paper of the election petitioner it was found that he did not disclose his age in part-III column-(a) of his nomination paper, rather he mentioned therein that he has completed 25 years of age but in accordance with law petitioner should have declared his age in the said column. According to the sole respondent the omission of the petitioner to mention his age in column-(a) of part III of the nomination form is a substantial defect in the nomination paper and Returning Officer having noticed the said defect in the nomination form of the election petitioner rejected the nomination paper of the election petitioner in his presence. Petitioner being fully satisfied with the said defect and the rejection of his nomination paper left the place of scrutiny after the rejection of his nomination paper. In paragraph-14 of the written statement sole Patna High Court E.P. No.6 of 2009 dt.05-09-2012 respondent has stated that the averments made in paragraph-9 of the election petition is wrong and motivated as according to the sole respondent Returning Officer had given full opportunity to all the candidates including the petitioner to examine the nomination paper of all the candidates. Any statement made to the contrary in the election petition is denied by the sole respondent. In paragraph-15 of the written statement sole respondent has denied the statement made in paragraph 10 of the election petition and has stated that the said statement has been made only for the purpose of election petition. It has further been stated in the said paragraph that as petitioner himself admitted that he was present at the time of scrutiny and he was well aware of the fact that his nomination paper suffers from material and substantial defect and his nomination paper was rejected by the Returning Officer without any protest by the petitioner as he was satisfied with the decision of the Returning Officer. In paragraph-16 of the written statement sole respondent has denied the contents of paragraph-11 read with contents of representation, Annexures-3, 3/1 of the election petition and has further stated that the contents of representation Annexures-3, 3/1 are merely preparation for filing election petition and as such the entire statement along with Annexures are afterthought, irrelevant and nothing to do with the validity of the nomination paper of the petitioner because the nomination paper of the petitioner was rejected by the Returning Patna High Court E.P. No.6 of 2009 dt.05-09-2012 Officer during scrutiny in presence of the petitioner as his nomination paper suffered from substantial and material defect and as such the Returning Officer had no option but to reject the nomination paper of the election petitioner. In paragraph-17 of the written statement sole respondent has replied the contents of paragraph-12 of the election petition and stated that the contents of said paragraph is irrelevant and not in accordance with law and only by way of preparation of ground or document for filing the election petition. In paragraph-19 of the written statement sole respondent has denied the contents of paragraph-14 of the election petition stating that the contents of said paragraph is the personal story conveniently set forth by the election petitioner, which is nothing but preparatory step for filing the election petition as nomination paper of the election petitioner was rightly rejected in his presence during the scrutiny proceeding. In paragraph-20 of the written statement sole respondent has considered the averments made in paragraph-15 of the election petition and stated that the contents of paragraph under reply is mere excuse of the petitioner as he himself did not deposit the required non-judicial revenue stamp and the folios for grant of certified copy of the order rejecting his nomination paper. In paragraph-21 of the written statement sole respondent has stated that the contents of paragraph-16 of the election petition is a lame excuse of the petitioner for not annexing the copy of his nomination paper and the Patna High Court E.P. No.6 of 2009 dt.05-09-2012 order rejecting the same, which is vital omission and the election petition is fit to be dismissed summarily for failure to disclose complete cause of action. In paragraph-22 of the written statement sole respondent has denied the story of harassment by the Returning Officer as disclosed by the petitioner in paragraph-17 of the election petition. In paragraph-24 of the written statement sole respondent has replied the statement made in paragraph-19 of the election petition and has termed the statement as irrelevant because petitioner being out of contest after rejection of his nomination paper has no personal concern with the electronic voting machine. In paragraph-25 of the written statement sole respondent has considered the averments made in paragraph-20, 21 of the election petition and has stated that those statements are imaginary and far from truth because every nomination paper was rejected in accordance with law. In paragraphs-27, 28, 29, 30, 31 of the written statement sole respondent has considered the averments made in paragraphs-22, 23, 24, 25, 26, 27 of the election petition and has stated that those statements are not only incorrect but are also emphatically denied by the sole respondent as according to the sole respondent Returning Officer while receiving the nomination paper as also during scrutiny of the same had taken the required steps in presence of the observers appointed by the Election Commission of India. In paragraph-32 of the written statement sole respondent has stated that Patna High Court E.P. No.6 of 2009 dt.05-09-2012 the statement made in paragraph-29 of the election petition is not at all relevant for the consideration of the present election dispute. The so called past history of the petitioner has no relevance and bearing for the consideration of his nomination paper for the impugned election. In paragraph-34 of the written statement sole respondent has stated that the statement made in paragraph-3- of the election petition is wholly incorrect and false as his nomination paper was properly rejected strictly in accordance with law and also in his presence, as such, according to the sole respondent petitioner is not justified to raise contrary submission. In paragraph-35 of the written statement sole respondent has stated that the election petition is not tenable in law for the reason that his nomination paper was properly rejected in his presence and also strictly in accordance with law.

15. Learned counsel for the petitioner also relied on the judgment of the Supreme Court in the case of A.C. Jose Vs. Sivan Pillai and others, AIR 1984 Supreme Court 921 and submitted that Election Commission of India is vested with the power of superintendence, direction and control of all elections to Parliament and State Legislature as also to the office of President and Vice-President but such power of superintendence is to be exercised to supplement the provisions of the Act and not to supplant the same and having held as above the Supreme Court set aside the impugned election in which on several polling booths electronic voting machine was used under the direction of the Election Commission of India without there being any provision for casting of vote through electronic voting machine as user of electronic voting machine on the several polling booths without there being any provision in the Act for use of electronic voting machine in Patna High Court E.P. No.6 of 2009 dt.05-09-2012 the election amounted to supplanting the provisions of the Act.