M. Jayanthi vs The Election Commission of India and Others

K. Venkataraman, J.—The only question that arises for consideration in this election petition is, whether the rejection of nomination of the

election petitioner is valid or not and justifiable or not. For the sake of convenience, the petitioner in the election petition is called as ''election

petitioner'', the fifth respondent in the election petition is referred as the ''returned candidate'' and the other respondents are referred as per their

nomenclature in the election petition.

The election petitioner contested the election at Rishivanthiyam Assembly Constituency. Her nomination was rejected by the returning officer by

an order dated 28.03.2011.

In the election petition, the following facts have been set out by the election petitioner:-

(a) The election petitioner decided to contest for the election for the Tamil Nadu Legislative Assembly in 78, Rishivanthiyam Assembly

Constituency and went to Villupuram for filing her nomination on 25.03.2011. On that day she prepared the nomination papers along with 10

proposers who are having votes in the Rishivanthiyam Constituency, but at 12:30 P.M. on the said date, when she and her husband were getting

ready for filing nomination on the next day, the sixth respondent''s hooligans came and snatched the nomination papers from her and stabbed her

husband on the stomach. Immediately, the petitioner through her husband lodged police complaint before the Villupuram Taluk Police Station.

However, the petitioner prepared another set of nomination papers for filing nomination on 26.03.2011.

(b) On 26.03.2011, the election petitioner filed nomination papers as independent candidate along with all documents including the 10 proposers

signatures and the voters list of the said 10 proposers. On 28.03.2011, when the fourth respondent scrutinised the nomination papers, he told the

election petitioner that he is going to reject her nomination on the ground that the proposers signatures and names were not clearly mentioned; their

serial numbers found in the voters list has not been clearly mentioned and also the left hand thumb impressions have not been obtained from the

said proposers. Immediately, the election petitioner gave all the particulars regarding the proposers. She also made a request to give two days time

for filing objection for the alleged defects and also made a request through written representation dated 28.03.2011 pleading the fourth respondent

not to reject her nomination. She has also pointed out the rules as given by the Election Commission in its guidelines in the handbook for candidates

2009. However, the fourth respondent, on the same day, without giving any opportunity to her, rejected her nomination papers and passed orders

without mentioning any proceeding number.

(c) Immediately, on the next day, she approached the second respondent and made objection for rejection of her nomination papers and made a

request to set aside the order passed by the fourth respondent dated 28.03.2011. However no orders were passed.

(d) The fourth respondent committed a number of mistakes and irregularities and he has taken sides with the fifth respondent to ensure his success.

The rejection of her nomination papers without giving any opportunity to her is against the provisions of the Representation of the People Act,

1951 and the judgments of the Hon''ble Apex Court. Had the election petitioner''s nomination papers been accepted, she would have come out

successful in the election.

Thus putting forth the above grounds, the election petition was filed.

Counter Affidavit was filed on behalf of the Returned Candidate putting forth the following contentions:-

(a) The election petitioner herself has admitted that the Returning Officer told her that he is going to reject the election petition on the ground that

the proposers signature and name were not clearly mentioned; their serial numbers found in the voters list were not clearly mentioned and the left

hand thumb impressions had not been obtained from the said proposers. Thus, she admits that the nomination paper has not been

signed/subscribed by 10 proposers as contemplated by first proviso to section 33(1) of Representation of the People Act, 1951.

(b) The pleading contained in the election petition will clearly establish that the nomination papers submitted by the election petitioner is non-est in

the eye of law and it is not valid nomination as per first proviso to section 33(1) of Representation of the People Act, 1951.

(c) The averment of the election petitioner that she filed the nomination paper along with all documents including the 10 proposers signature and the

voters'' list of the said proposers is not true. In document No. 1 filed along with the election petition there is a nomination form in form No. 2-B

which the election petitioner has verified as true copy when she filed an application in O.A. Nos. 908 of 2011 and 924 of 2011. But, now she has

changed her case stating that the nomination form filed by her is a model form.

(d) The election petitioner did not even file the certified copy of the nomination paper along with election petition. After the expiry of 45 days, she

filed a document calling it as certified copy of the nomination paper alleged to have been obtained by her under the Right to Information Act. Any

document filed beyond the period of 45 days from the date of declaration of results, cannot be received as evidence.

(e) Admittedly, the so-called nomination paper produced as additional document contains the left hand thumb impression of atleast 3 proposers.

The left hand thumb impression of the 3 proposers were not attested. If 10 proposers have not signed at the time of presenting the nomination

paper, it is not a nomination at all in the eye of law. This cannot be even cured at the time of scrutiny of nomination paper. Hence, there is no

question of affording opportunity and Section 36(5) of the Representation of the People Act, 1951 is not at all attracted. If the nomination does not

comply with Section 33(1) of the Act, there is no nomination in the eye of law and it cannot be cured even at the time of scrutiny.

(f) The document nos. 2, 3 and 4 filed along with the election petition are all xerox copies and the election petitioner has put a rubber stamp

verification stating that it is a true copy of the original. However, no original documents have been produced by the election petitioner. The

allegation made in document nos. 2 and 3 do not tally with the allegation in para 1 of the election petition on material particulars. The election

petitioner has no cause of action for filing the election petition and the document nos. 2, 3 and 4 are not admissible in evidence.

(g) Along with the election petition, the election petitioner has filed document no. 5, said to be the representation dated 28.03.2011 in which she

has stated that when she filed the nomination, she could not mention the ""part number"" of some of the proposers. She has further stated that she

has rectified it and has enclosed the voter ID number of the 10 proposers. Thus, according to the representation given by the election petitioner on

28.03.2011, which has been filed as document No. 5, the defect alleged by her was that she has not given the part number of some of the

proposers. But, according to the election petitioner she has rectified the defect in the nomination paper on 28.03.2011 by giving representation

filed as document no. 5. Thus, she has admitted that on 28.03.2011, her nomination was defective but according to her the only defect was that

she has not given the part number of some of the proposers and she has rectified the same by giving annexures along with the said representation

dated 28.03.2011 which has been filed as document No. 5.

(h) While so, the election petitioner alleges that on 28.03.2011, a representation has been sent by her, seeking two days time to file her objection

which has been filed as document no. 6. The alleged representation of the election petitioner dated 28.03.2011 filed as document no. 6 along with

the election petition do not tally with the representation dated 28.03.2011 filed by the election petitioner as certified copy of the document

obtained allegedly through Right to Information Act. The document no. 6 filed along with the election petition is a typed copy of the representation

signed by the election petitioner, but the document filed as certified copy of the very same representation, after the expiry of 45 days is a hand

written representation and that the contents of both the documents are also differing materially.

(i) The election petition has not been properly verified and there are blanks in the verification paragraph. Thus, the counter affidavit seeks for the

dismissal of the election petition.

The following issues were framed in the election petition:-

(i) Whether the nomination paper of Mrs. M. Jayanthi/election petitioner has been wrongly and improperly rejected by the Returning Officer ?

(ii) Whether the nomination of the election petitioner is in consonance with the provisions of the Representation of the People Act, 1951, more so,

the first proviso to Section 33(1) of the Act ?

(iii) Whether the election of the 5th respondent is liable to be declared void u/s 100(1)(c) of Representation of the People Act, 1951 ?

I have heard the election petitioner/party in person and the learned Senior Counsel appearing for the returned candidate. The other respondents

have not chosen to file any counter affidavit and to contest the matter.

The Election petitioner has filed the election petition for the following reliefs:-

(a) To declare the fourth respondent order dated 28.03.2011 rejecting the petitioner''s nomination papers filed for contest in 78, Rishivanthiyam

Assembly Constituency as improper, invalid and illegal and also set aside the election of the 5th respondent from 78, Rishivanthiyam Assembly

Constituency of the Tamil Nadu Legislative Assembly.

(b) Consequently, to declare the election of returned candidate namely the 5th respondent herein from No. 78, Rishivanthiyam Assembly

Constituency, State of Tamil Nadu in the Election held on 13.04.2011 and the declaration of result on 13.05.2011 as illegal and null and void; and

(c) to direct the respondents to pay the cost of this Election Petition.

Thus, it is the case of the election petitioner that her nomination was unjustly rejected.

The issues framed in this election petition which are extracted above are commonly considered herein:-Before embarking on the said issues, it

would be useful to refer about clauses (1) and (4) of Section 33 of the Representation of the People Act, 1951 (herein after called as the Act),

which deals with presentation of nomination paper and requirements for a valid nomination and it reads as follows:-

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 the three O''clock in the afternoon

deliver to the returning officer at the place specified in this behalf in the notice issued u/s 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:

(2)

(3)

(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.

(I) The above referred provisions make it very clear that on or before the appointed date prescribed u/s 30, the candidate either in person or by

his proposer, deliver to the returning officer a nomination paper completed in a prescribed format and signed by a candidate and by an elector of

the constituency as proposer.

(II) If the candidate is not set up by a recognized political party, the nomination paper shall be subscribed by ten proposers being electors of the

constituency.

(III) Clause (4) of Section 33 of the Act contemplates that the returning officer shall satisfy himself that the names and electoral roll numbers of the

candidate and his proposers as entered in the nomination paper are the same as those entered in the electoral roll. Proviso to the said clause

contemplates that the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be

corrected wherever it is necessary.

In the case on hand, it has to be seen as to whether the nomination paper that has been filed by the election petitioner was in order or not.

Before answering the said question, it would be useful to see the pleadings. In the election petition, in para 2, the election petitioner has averred

that on 26.3.2011, she has filed the nomination paper as independent candidate along with all documents including ten proposers signatures along

with the voters list of the said proposers. Thus, it is the case of the election petitioner that on 26.3.2011, she has filed her nomination paper along

with all documents including ten proposers signatures along with their voters list. But, in the same para, the election petitioner has stated that on

28.3.2011, the returning officer, the fourth respondent herein, at the time of scrutiny of the nomination paper, told her that he was going to reject

her nomination on the ground that the proposers signatures and names and their serial numbers found in the voters'' list were not clearly mentioned

and the left hand thumb impression was not obtained from the proposers. Immediately, she has given all particulars regarding the proposers. This

will clearly show that the election petitioner though at the first instance in para 2 of the election petition has stated that she has presented the

nomination paper along with all documents including the ten proposers signatures along with their voters'' list, in the very same para, she has stated

that when the returning officer on 28.3.2011 pointed out certain defects, the same were complied with. At the same time, in the same para, in the

next line, she has stated that she has requested the returning officer two days time for filing objections about the alleged defects and also made a

request through a written representation dated 28.3.2011 stating that her nomination papers shall not be rejected. It is also stated that citing the

Election Commission guidelines, she has requested the returning officer to grant two days time to rectify the defects, but, however, the same has

been turned down by him. The pleadings made in para 2 of the election petition is thus, usefully extracted hereunder:-

The petitioner further submit that on 26.3.2011, the petitioner filed the nomination papers as independent candidate along with all documents

including the 10 proposers signatures along with the voters list of the said 10 proposers. On 28.3.2011 the 4th respondent scrutiny the nomination

papers at the time the 4th respondent told the petitioner that he going to reject her nomination on that ground that the proposers signatures and

names were not clearly mentioned and also their serial numbers found in the voters list has not been clearly mentioned and also the left hand thumb

impression not obtained from the said proposers, immediately the petitioner given all particulars in regarding with the proposers particulars

(Document No. 4) and represented before the 4th respondent and made request to give two days time for filing objection the above said alleged

defects and also made request through written representation dated 28.3.2011 and the same was presented in person (Document No. 5) that the

petitioners nomination papers should not reject and also the petitioner explained and cited the Rule as given in the Election Commission guidelines

in the hand book for candidates 2009, as per Chapter IV clause 12 Page No. 40 and as per hand book for returning officers Chapter VI Clause

11 page No. 70 it has been given to returning officers that if the candidate asking time for complying the said minor defects the time may be given

to the such candidate, but the 4th respondent herein immediately on the same day without giving any opportunity to the petitioner and rejected the

petitioners nomination and passed orders without mentioning any proceedings number (Document No. 6).

The above extracted portion thus, amply makes it clear that the election petitioner has not presented her nomination papers on 26.3.2011 as

per the requirement under clause (1) of Section 33 of the Act.

In her evidence as P.W. 1, in the cross-examination, the election petitioner has categorically admitted that only on 28.3.2011, she gave the

required particulars to the returning officer and Ex. A.5 is the same. This clear admission along with the pleadings made in para 2 of the election

petition would amply prove that it is the definite case of the election petitioner that she rectified the defects pointed out by the returning officer on

28.3.2011, on which date the scrutiny was made by him.

The next question that arises for consideration is, whether the defects pointed out by the returning officer are of substantial character or not ?

Ex. C.1 is the nomination paper presented by the election petitioner, which was marked through C.W. 1, the returning officer. C.W. 1 has

stated that in Ex. C.2, reasons have been given for rejection of her nomination paper. The reason, according to him, is that the names of the

proposers and their signatures are improper and hence, her nomination was rejected. He has further added that the nomination paper filed by the

election petitioner was not in order, that is to say, the name of the proposers and their other particulars were not given properly. In the cross

examination, C.W. 1 has stated that the proposers need not come, but their names, part numbers, serial numbers of the electoral roll of that

Constituency and their signatures should be there in the nomination paper. It is the further case of the returning officer that though ten proposers

names have been given, their serial numbers and part numbers were not given. If we peruse the original nomination paper Ex. C.1 filed by the

election petitioner, we could see the serial numbers and ten proposers'' names. As far as their signatures are concerned, only five of them have

subscribed their signatures and three affixed their left thumb impression. The serial number and proposers'' part number in the voters list of the

constituency have not been given properly. Thus, there seems to be defects pertaining to serial number and proposers'' part number in the voters

list of the constituency. The failure to give such particulars may not be construed as a substantial defect. Proviso to clause (4) of Section 33

contemplates that such error shall be overlooked and the returning officer shall permit any such misnomer or inaccurate description or clerical and

technical error to be corrected by the person, who files nomination.

It is the case of the election petitioner that she has rectified the defects on 28.3.2011, but, according to the returning officer, when the defects

have been pointed out to her, she orally requested him to grant some time to rectify the same. After rejection of her nomination on 28.3.2011, she

has made a request for grant of two days time to rectify the defects in the nomination papers. When it is the case of the election petitioner that she

has rectified the defects immediately after it was pointed out, it is the case of the returning officer that she asked some time to rectify the defects. In

one portion of the cross examination made on behalf of the returned candidate, the election petitioner has accepted that she sought for two days

time to give serial numbers and part numbers of the proposers, but however, the same was rejected by the returning officer. The evidence in this

regard is usefully extracted hereunder:-

It is true that my representation seeking two days time for giving particulars regarding serial number and part number of the proposers was rejected

by the returning officer.

Ex. C.2 is the order of rejection made by the returning officer. The translated version of the same is extracted hereunder:-

The decision taken by Returning Officer for acceptance or rejection of nomination paper.

As per Section 36 of the Representation of the People Act, 1951, I have scrutinised this nomination and decide as follows:

The nomination bearing ""VA"" No. 19 dated 26.03.2011 filed by Mrs. M. Jayanthi, W/o. R. Moorthy, as a contesting candidate from No. 78,

Rishivandiyam Assembly Constituency, is being rejected for the following reasons.

In the nomination (Form 2B) submitted by the candidate, names of the proposers and their signatures are improper. Further, the details under

which Part Number and Serial Number their names figure in the electoral list pertaining to their constituency, have not been filled up properly.

As per the rules of the Election Commission, a person filing his/her nomination papers as an independent candidate, has to furnish the details of 10

persons found in the voter''s list of that constituency with their signatures or Left Thumb Impressions proposing his/her name. But you have not

submitted the nomination accordingly, hence, it is rejected.

Date: 28.03.11

Sd/xxx

Returning Officer

No. 78, Rishivandiyam Assembly

Constituency and District

Welfare Officer, Viluppuram.

Backward Classes and Minority

Thus, it amply makes it clear that the election petitioner has not presented her nomination papers in order viz., regarding ten proposers, their part

numbers and serial numbers.

Ex. P.5 is the letter addressed by the election petitioner to the returning officer and as well as the District Election Officer, wherein she has

requested the returning officer to accept her nomination papers rectifying the defects, according to her, regarding ten proposers names, serial

numbers, part numbers, etc. The said letter, in translated version, is re-produced hereunder:-

I filed my nomination papers on 26.3.2011 to the aforesaid Returning Officer to contest in No. 78, Rishivandiyam Assembly Constituency. An

unfortunate situation arose, wherein I was not in a position to furnish part numbers of some of the members among the 10 proposers in the

nomination and I have thus submitted my nomination papers.

The reason for not furnishing part numbers referred to above is that on 26.03.2011 at About 12.30 p.m. when my husband and I tried to get into

the entrance of Villupuram District Collector''s office, S. Sivaraj''s henchmen belonging to Rishivandiyam Assembly Constituency came and tried to

take away or steal my nomination papers after murdering me, my husband and my son. But, they stabbed my husband, cut open the carry bag

containing nomination papers brought by us and stole/grabbed the voters list pertaining to the aforesaid 10 proposers. Hence I was in the

unfortunate situation of not furnishing part number of some of persons among the 10 proposers in the nomination papers submitted on 26.03.2011.

therefore, I request that my humble explanation may be accepted and the same is furnished along with the copy of voters list of the proposers. I

humbly request that this as well as my nomination may be accepted and I may be allowed to contest in the election from No. 78, Rishivandiyam

Assembly Constituency as an independent candidate. I hereby enclose the copies of the criminal complaint and F.I.R. for your perusal.

LIST FOR TEN PROPOSERS

C.W. 1, the returning officer, has deposed that the proposers names and other particulars which were given in the annexure to Ex. C.6 are

different from the proposers names and their particulars given in the original nomination paper. He has further added that the names of the

proposers found in the nomination papers and annexure to Ex. C.6 are one and the same, but serial numbers and the part numbers are different.

The serial number, part number, names of the proposers as shown in Ex. C.1, the original nomination paper, are extracted hereunder:-

Thus, comparing the original nomination paper along with Ex. P.5, it would reveal that as spoken to by C.W. 1, the names of the proposers

found in the nomination papers and annexure to Ex. C.6 are one and the same, but the serial numbers and part numbers are different. This will

clearly show that the defects as on 28.3.2011, i.e., on the date of scrutiny still persists. With regard to the part numbers and serial numbers at the

time of scrutiny, the returning officer could have pointed out the defects and permitted the election petitioner to rectify the same. The part numbers

and serial numbers could be found out from the electoral roll submitted by the election petitioner and with the help of the same, it could be rectified,

but the returning officer, in my considered view, has not done his duty properly in helping the election petitioner, who has filed the nomination as an

independent candidate. In fact, the election petitioner has sent a letter to the Chief Election Commissioner dated 29.3.2011, which is marked as

Ex. P.8. Even in the said letter, she has given reasons as to why she could not give the particulars of the proposers which is extracted hereunder:-

... According to the Election Rules, the one wants to file nomination as an independent candidate, has to get signatures or left thumb impressions of

10 persons with their respective details, whose names are found in the voters list of that constituency. As I have not submitted my nomination in

that manner, the officer who conducts the election, has rejected the nomination. But I have filed my nomination papers along with the signatures of

the said 10 proposers. Further, before I could enter the office of the District Collector, Villupuram along with my husband to submit my nomination

papers, in the public place viz., in the middle of the road, the henchmen of one S. Sivaraj, M.L.A. stabbed my husband and snatched away my

nomination form, voters list and other important documents. So, on 26.03.2011, unfortunately, I could not file some of the part numbers of the

aforesaid 10 proposers. In this regard, a criminal complaint was registered before the Villupuram Taluk police station and an F.I.R. is issued. The

Crime Number is 169 of 2011. This incident was reported widely in the news papers and the media....

However, the question that remains to be considered is, whether the proposers subscribed their signatures or their mark (thumb impression) in

the nomination paper as required under the Act and Rules.

The expression sign is defined in Section 2(1)(i) of the Act, and the same reads as follows:-

Interpretation:- (1) In this Act, unless the context otherwise requires (a) to (h)

(i) sign in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed.

The said provision makes it clear that if a person is unable to write his name, he shall authenticate in such manner as has been prescribed. Rule

2(2) of the Conduct of Election Rules, 1961 (herein after called as the Rules), which deals with the same, is extracted hereunder:-

Interpretation:- (1)

(2) For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules,

be deemed to have signed an instrument or other paper if

(a) he has placed a mark on such instrument or other paper in the presence of the returning officer or the presiding officer or such other officer as

may be specified in this behalf by the Election Commission, and

(b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person.

Thus, the said rule provides that a person, who is unable to write his name, may place his mark on the instrument or other paper and the

requirements of law are complied with provided he places the mark in the presence of the returning officer or the presiding officer or such other

officer as may be specified in this behalf by the Election Commission. The said officer on being satisfied as to his identity, attests the mark as being

the mark of the person.

Proviso to Clause (1) of Section 33 of the Act, which was extracted above envisages that a candidate not set up by a recognized 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. A combined reading of proviso to clause (1) of Section 33 and clause (i) of Section 2 and as well as Rule 2(2) of the

Rules will clearly prove that the nomination paper of the independent candidate shall be subscribed by ten proposers with their names and

signatures, if not, their thumb impression shall be available in the nomination paper. In the case on hand, though the thumb impression was made by

three proposers, there was no attestation regarding their mark (thumb impression) and hence, it has to be taken that there was no valid nomination.

In this regard, the election petitioner has not made any request. Even according to her, she has not sought some time to rectify the said defect.

There is neither pleading to this effect, nor evidence on this line. Even the documents produced by the election petitioner do not reflect the same.

Her evidence in this regard, at the risk of repetition, is extracted hereunder:-

It is true that my representation seeking two days time for giving particulars regarding serial number and part number of the proposers was rejected

by the returning officer.

The letter given by her to the returning officer and the District Election Officer dated 28.3.2011, which was extracted above, would also

clearly reflect the same. At the risk of repetition, the relevant passage in the said letter is extracted hereunder:-

... But, they stabbed my husband, cut open the carry bag containing nomination papers brought by us and stole/grabbed the voters list pertaining to

the aforesaid 10 proposers. Hence I was in the unfortunate situation of not furnishing part number of some of persons among the 10 proposers in

the nomination papers submitted on 26.03.2011. therefore, I request that my humble explanation may be accepted and the same is furnished along

with the copy of voters list of the proposers. I humbly request that this as well as my nomination may be accepted and I may be allowed to contest

in the election from No. 78, Rishivandiyam Assembly Constituency as an independent candidate....

This will amply establish that there was no attempt made on behalf of the election petitioner to get attestation of the thumb impression made by the

three proposers in the nomination papers.

The next question that arises for consideration is, whether the said defect is substantial in character or not. If it is not substantial in character,

the nomination paper presented by the election petitioner shall not be rejected by the returning officer.

Clause (4) of Section 36 of the Act is extracted hereunder:-

Scrutiny of nominations:-

(1) to (3)

(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

It is contended on behalf of the election petitioner that the said defect is not substantial in character, whereas it is contended by the learned

Senior Counsel appearing for the returned candidate that it is substantial in character. The law laid down by the Hon''ble Apex Court requires to

be seen on this aspect.

(A) The learned Senior Counsel appearing for the Returned Candidate relied on the decision reported in AIR 1954 Supreme Court 510,

Rattan Anmol Singh and another vs. Ch. Atma Ram and Others. The main question that was called upon to decide in the said matter is whether the

Returning Officer was right in rejecting the nomination paper of the first respondent therein? The facts in nut shell in the said matter are:-

(a) There was a contest for two seats in the Punjab Legislative Assembly. The Constituency is a double member constituency, one seat being

general and other seat reserved for a Scheduled Caste. The first respondent Atma Ram was a candidate for the reserved seat but his nomination

was rejected by the Returning Officer at the scrutiny stage and so, he was unable to contest the election. The successful candidates were Rattan

Anmol Singh, the appellant in one appeal for the general seat and Ram Prakash, the appellant in the other appeal for the reserved seat.

(b) The election tribunal decided in favour of the first respondent by a majority of two to one and declared the whole election void.

(c) The reason for rejection of nomination paper of Atma Ram was that the proposer and seconder were illiterate and so placed a thumb mark

instead of a signature. However, the thumb marks were not attested. The Returning Officer therefore held that without attestation, they are invalid

and rejected the nomination. In that context, the Hon''ble Apex Court has held that the thumb mark made by the proposer and the seconder should

have been attested and without attestation, they are invalid. Paragraph 13 of the said judgment is thus usefully extracted here under:-

The four nomination papers we are concerned with were not ""signed"" by the proposers and seconders in the usual way by writing their names,

and as their marks are not attested it is evident that they have not been ""signed"" in the special way which the Act requires in such cases. If they are

not ''signed'' either in one way or the other, then it is clear that they have not been ""subscribed"" because ""subscribing"" imports a ""signature"" and as

the Act sets out the only kinds of ""signatures"" which is will recognise as ""signing"" for the purposes of the Act, we are left with the position that there

are no valid signatures of either a proposer or a seconder in any one of the four nomination papers. The Returning Officer was, therefore, bound to

reject them u/s 36(2)(d) of the Act because there was a failure to comply with Section 33, unless he could and should have had resort to Section

36(4).

(d) A subsidiary question that arose before the Hon''ble Apex Court was whether assuming attestation to be necessary under the Rules, an

omission to obtain the required attestation amount to a technical defect of an unsubstantial character which the Returning Officer was bound to

disregard u/s 36(4) of the Representation of the People Act, 1951. The answer has been given in Paragraph 14 of the said judgment which is

usefully extracted here under:

That sub-section is as follows:

The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character.

The question, therefore, is whether attestation is a mere technical or unsubstantial requirement. We are not able to regard it in that light. When the

law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there. The substance of the

matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making a mark in place of

writing a signature. If the Returning Officer had omitted the satisfaction because of some slip on his part and it could be proved that he was

satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would

be there, and the omission formally to record the satisfaction could probably ''in a case like that'', be regarded as a unsubstantial technicality. But

we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed

with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same

footing as the ""subscribing"" required in the case of the candidate himself. If there is no signature and no mark the form would have to be rejected

and there absence could not be dismissed as technical and unsubstantial. The ""satisfaction"" of the Returning Officer which the Rules require is not,

in our opinion, any the less important and imperative.

Thus, the Hon''ble Apex Court held such defect as substantial in character and it is not technical or un-substantial.

(e) Yet another question that came for consideration before the Hon''ble Aepx Court was whether the attestation can be compelled by the persons

concerned at the scrutiny stage. It has been held that if substantial defect is found, it cannot be cured at the stage of scrutiny of the nomination.

Paragraph 15 of the said judgment is thus usefully extracted here under:

The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage. It must be accepted that no

attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that

this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at

that stage it would have been too late because the attention and the satisfaction must exist at the presentation stage and a total omission of such an

essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. Section 36 is

mandatory and enjoins the Returning Officer to refuse any nomination when there has been ""any failure to comply with ''any'' of the provisions of

Section 33....

The only jurisdiction the Returning Officer has at the security stage is to see whether the nominations are in order and to hear and decide

objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is true he is not to reject any nomination paper on

the ground of any technical defect which is not of a substantial character but he cannot remedy the defect. He must leave it as it is. If it is technical

and unsubstantial it will not matter. If it is not, it cannot be set right;

(B) Yet another decision relied on by the learned Senior Counsel appearing for the Returned Candidate is reported in Ram Dayal Vs. Brijraj Singh

and Others, . The Hon''ble Apex Court in the said decision has held that the requirement u/s 33(1) of the Act that the nomination shall be signed by

the candidate and by the proposer is mandatory. Signing, whenever signature is necessary, must be in strict accordance with the requirements of

the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Further, it has been held that the

attestation and the satisfaction must exist at the stage of presentation and it cannot be validated at the stage of scrutiny. Paragraphs 3 and 4 of the

judgment of the Hon''ble Apex Court is thus usefully extracted here under:-

The plea that the rejecting of the nomination paper of Dhani Ram by the Returning Officer was illegal has no substance. On January 19, 1967

Dhani Ram delivered to the Returning Officer two nomination papers signed by him. Each nomination papers bore a thumb impression of one

Gokla as the proposer. But the thumb impressions were not authenticated or attested in the presence of the Returning Officer or any other officer

specified in the Rules. The Returning Officer rejected the nomination papers.

Section 33(1) of the Representation of the People Act, 1951, requires that each candidate shall deliver to the returning officer a nomination

paper completed in the prescribed from an signed by the candidate and by an elector of the constituency as proposer. The expression ""sign"" is

defined in Section 2(i) of the Act as amended by Act 27 of 1956 as meaning ""in relation to a person who is unable to write his name authenticate in

such manner as may be prescribed"". Rule 2(2) of the Conduct of Election Rules, 1961 provides:

For the purpose of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be

deemed to have signed an instrument or other paper if-

(a) he has placed a mark on such instrument or other paper in the presence of the Returning Officer or the Presiding Officer or such other officer as

may be specified in this behalf by the Election Commission.

(b) such officer on being satisfied as to his identify has attested the mark as being the mark of that person.

Where a person is unable to write his, name, he may place his mark on the instrument or other paper and the requirements of law are complied

with, provided he puts the mark in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in that

behalf by the Election Commission and such officer on being satisfied as to his identity attests the mark as being the mark of that person. Gokla

was illiterate. He impressed his thumb mark on the nomination paper; but it was not placed in the presence of any of the designated officers, nor

was there any authentication or attestation of the thumb-mark. The requirement u/s 33(1) of the Act that the nomination shall be signed by the

candidate and by the proper is mandatory. Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act

and where the signature cannot be written it must be authorised in the manner prescribed by the Rules. Attestation is not a mere technical or

unsubstantial requirement within the meaning of Section 36(4) of the Act and cannot be dispensed with. The attestation and the satisfaction must

exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than

the omission of a candidate to sign at all could have been.

(C) Yet another decision relied on by the learned Senior Counsel appearing for the Returned Candidate is reported in Dharam Singh Rathi Vs.

Hari Singh, M.L.A. and Others, wherein the Hon''ble Apex Court has held that the thumb mark has to be placed by the proposer on the

nomination paper in the presence of the Returning Officer and it has to be attested. The relevant passage is thus usefully extracted here under:

The prescribed manner of authentication is to be found in Rule 2(2) of the Rules. A thumb mark has to be placed by the proposer on the

nomination paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has to attest the mark as being the

mark of that person. There was, therefore, a clear violation of this rule also. We see no reason to differ from the view of the High Court that the

nomination paper of Prabha Ram was not improperly rejected by the Returning Officer.

Clause (i) of Section 2 of the Act, clause (2) of Rule 2 of the Rules coupled with the above referred to decisions will amply make it clear that

the thumb mark has to be placed by the proposer on the nomination paper in the presence of the returning officer and such officer being satisfied as

to his identity, has to attest the mark as being the mark of that person.

In the case on hand, though three proposers have put their thumb impression in the nomination paper filed by the election petitioner, the same

has not been attested by the returning officer as to their identity. It is not even the case of the election petitioner that the three proposers, who have

affixed their thumb impression, have appeared before the returning officer. Thus, the defects found in the nomination paper are substantial in

character and hence, the rejection of the nomination paper by the returning officer cannot be faulted.

The election petitioner/party in person relied on the following decisions:-

(A Manda Jaganath Vs. K.S. Rathnam and Others,

(i) That is a case where on rejection of the nomination, a writ petition under Article 226 of the Constitution of India was filed before the High Court

of Judicature, Andhra Pradesh, Hyderabad for mandamus declaring the action of the Returning Officer treating the first respondent as an

independent candidate and not as a candidate set up by the Telangana Rashtra Samithi as illegal and further prayed for a direction to the said

Returning Officer to treat the first respondent before the Hon''ble Apex Court as a candidate set up by the said political party and allot the symbol

of ""car"" to him. The High Court of Andhra Pradesh came to the conclusion that the irregularity, if any, found in Form B was so technical and trivial

that the same did not justify the action of the Returning Officer to treat the first respondent as an independent candidate and not as a candidate set

up by the political party referred to above and hence, issued the impugned directions setting aside the decision of the Returning Officer. It also

opined that the issue relating to allotment of symbol by the Returning Officer at the time of scrutiny of nomination papers is not one of the grounds

on which an election petition could be filed under the provisions of the Representation of the People Act, 1951 (the RP Act, 1951). Aggrieved

over the interim order of the High Court of Andhra Pradesh, an appeal was filed before the Hon''ble Apex Court. The Hon''ble Apex Court had

set aside the order of the High Court of Andhra Pradesh, however holding that the rejection of the nomination could be canvassed in the election

petition. Paragraphs 23 and 24 of the judgment is usefully extracted here under:

The next argument of learned counsel for the respondent is that as per the provisions of Section 36 of the Representation of the People Act,

Rule 4 of the Conduct of Election Rules, 1961 and clause 13 of the Election Symbols (Reservation and Allotment) Order, 1968, the omissions

found by the Returning Officer in Form B filed by the respondent herein are all curable irregularities and are not defects of substantial nature, calling

for rejection of the nomination paper. We think these arguments based on the provisions of the statutes, rules and orders are all arguments which

can be addressed in a properly constituted election petition, if need be, and cannot be a ground for setting aside the order of the Returning Officer

which is prima facie just and proper, in our opinion.

We are not recording any conclusive opinion in regard to the applicability of the above statute, rules and orders because, as stated above, it is

a matter to be decided in an election petition. Suffice it to say that the High Court on facts of this case, could not have interfered with the decision

of the Returning Officer to reject Form B filed by the first respondent.

(ii) The above judgment will clearly prove that the Hon''ble Apex Court has not expressed any opinion whether the rejection of the nomination is

bad or good and left the matter to be decided in the election petition, if the party intends to move it. Hence, the said judgment may not come to the

rescue of the petitioner in any manner.

(B) Rangilal Choudhury Vs. Dahu Sao and Others,

(i) That is the case where the nomination paper was rejected by the Returning Officer only on the ground that the proposer had nominated the

candidate for election from Bihar and not Dhanbad Assembly Constituency. The nomination was made on a Hindi form printed for the purpose by

the Government which unfortunately did not exactly conform to the Hindi printed form in the Rules framed under the Representation of the People

Act. The heading in the specimen printed form requires the name of the State in which the election is held, to be filled in the blank space; but in the

printed form supplied to the respondent the name of the State was already printed in the heading and therefore the blank space had to be filled in

with the name of the constituency. The candidate therefore filled in the name of the constituency in the blank space in the heading. Thereafter the

proposer filled in the next part of the form which has five columns, after the main part which says that the proposer nominates so and so for such

and such constituency. In this main part, the name of the candidate and the name of the constituency have to be filled in by the proposer. In the

particular form with which the said case is connected was that the name of the candidate was rightly filled in but the proposer instead of putting

down the name of the constituency, namely, Dhanbad, put down the name Bihar therein. The only objection that was taken in the said matter was

that the proposer had not mentioned the constituency for which he was proposing the candidate for election and therefore the nomination form was

defective and should be rejected. This found favour with the returning officer, who rejected the nomination paper.

(ii) When it was challenged before the High Court, Bihar, it has been held that the Returning Officer improperly rejected the nomination paper. The

said view taken by the High Court of Bihar was upheld by the Hon''ble Apex Court. In the said decision, the Hon''ble Apex Court has held that no

nomination paper shall be rejected on the ground of any defect which is not of a substantial character. The said view was taken by the Hon''ble

Apex Court, since the defect in the form is that the proposer has put in the word Bihar instead of Dhanbad which was not a defect of substantial

character. Thus, the said judgment also may not come to the rescue of the petitioner party-in-person.

(C Ram Bhual Vs. Ambika Singh,

(i) That is the case of one Sita Ram who filed his nomination paper for the Uttar Pradesh Legislative Assembly held on 21.02.2002. In the

nomination paper, the ninth proposer viz., Sant Lal was referred as voter in Serial No. 392, but infact his name has been shown as Serial No. 352

in the voter list. However, the Returning Officer rejected the nomination. On challenging before the High Court of Uttar Pradesh, the stand taken

by the Returning Officer was set at naught and the election petition was allowed. The matter came up before the Hon''ble Apex Court and the

Hon''ble Apex Court confirmed the view taken by the High Court of Uttar Pradesh.

(ii) The said judgment may not come to the rescue of the petitioner since the defect that has prevailed in the said case is a minor one. The ninth

proposer by name Sant Lal was shown as Serial No. 392 instead of Serial No. 352 in the voters list. Apparently finding that it is only a minor error

and can be cured as per Clause 4 of Section 36 of the Representation of the People Act, 1951, the decision taken by the Returning Officer was

set aside and the High Court has allowed the election petition and so as the Hon''ble Apex Court. Hence, this judgment also may not come to the

rescue of the petitioner party-in-person.

(D J. Chandrasekhara Rao Vs. V. Jagapathi Rao and Others, , Uma Ballav Rath (Smt) vs. Maheswar Mohanty (Smt) and Others.

In the said decision, it has been held that an election cannot be set aside on presumptions, surmises and conjectures. A clear and cogent proof in

support of the allegations is essential. The said decisions no where answers the issues raised by the petitioner party-in-person.

(E) Chaugule Vs. Bhagwat,

The said decision also does not touch the ratio raised in this election petition. It has no relevance to the facts of the case and hence, the same may

not come to the rescue of the petitioner party-in-person.

(F) Shambhu Prasad Sharma Vs. Shri Charandas Mahant and Others,

The case of the appellant therein was that in the election petition, the nomination paper filed by the respondents 2 to 18 were incomplete for want

of a proper affidavit required to be filed in terms of the orders passed by this Court in Union of India vs. Assn. for Democratic Reforms and the

instructions issued by the Election Commission requiring the candidates to file such affidavits along with their nomination papers. An application

was taken out by the returned candidate under Order 7 Rule 11 CPC r/w Section 86(1) of the Representation of the People Act, 1951 wherein it

has been alleged that the petition did not disclose any cause of action. The High Court of Bilaspur at Chhattisgarh allowed the application and

dismissed the election petition. The same was canvassed before the Hon''ble Apex Court which also confirmed the order passed by the High

Court of Bilaspur at Chhattisgarh. While dismissing the appeal, the Hon''ble Apex Court has held that the question of acceptance or rejection of

the paper shall have to be viewed in the light of sub-section (4) of Section 36 of the Act. It was also held that what is to be seen is whether there is

a substantial compliance with the requirement as to form and the every departure from the prescribed format cannot be a ground for rejection of

the nomination paper. Thus, the Hon''ble Apex Court has held that minor defect can be cured and not a substantial error.

(G Surendra Nath Khosla Vs. Dalip Singh,

(i) That is the case where one of the issue that was raised was whether the thumb impression of the proposer and the seconder of one of the

candidate had not been properly verified and the same was not in accordance with the election rules. On facts, it has been found that the thumb

impression had been attested by the Magistrate who had in fact been authorised in that behalf.

(ii) Thus, the Hon''ble Apex Court has held that the Tribunal having found as a fact that the persons whose thumb impressions the nomination

papers purported to bear had really proposed and seconded the candidate and that those thumb impressions had been attested by a Magistrate

who had in fact been authorised in that behalf, there is no room for the contention that the Returning Officer was justified in rejecting the nomination

paper in question.

(iii) The said judgment also may not come to the rescue of the petitioner party-in-person.

(H) Uttamrao Shivdas Jankar Vs. Ranjitsinh Vijaysinh Mohite-Patil,

(i) The question that arose for consideration before the Hon''ble Apex Court was the extent of jurisdiction of a Returning Officer to determine a

question as to whether a nomination paper filed by an applicant to enable him to contest an election in terms of the provisions of the Representation

of the People Act, 1951 on the premise that the names of the proposers were forged. The appellant therein filed his nomination paper before the

returning officer. The respondents therein raised objections stating that the proposers 7 and 8 had not signed the nomination papers, but it is a

forged one. The returning officer thereafter compared the signatures of the said proposers and they were also present before him. After scrutinising

the papers, the nomination of the appellant was rejected. The High Court also found that the rejection is valid. Thereupon the matter came before

the Hon''ble Apex Court. The Hon''ble Apex Court set aside the order of the High Court and remitted the matter before the High Court. While

doing so, held that in an election petition, the High Court acts as a Court of original jurisdiction and its jurisdiction stricto sensu cannot be said to be

appellate in nature. It has been further held that the High Court was duty bound to treat the matter on merits by framing issues and thereafter calling

for production of evidence by parties and thus, it is held that the High Court erred in treating its power only as an appellate authority and

proceeded to try and determine as to whether or not decision making process was legal or not. It has also been held by the Hon''ble Apex Court

that affidavits were filed not only by the disputed proposers who claimed that their signatures on nomination papers were forged, but also by

appellant and five other proposers, one of whom was brother of Proposer 8 vouching genuineness of those signatures. Evidence by way of

affidavits is one of the modes of proving fact and the Returning Officer while exercising his discretion could have appreciated the evidence brought

on record by way of affidavits and decided the issue.

(ii) The said judgment also will have no relevance to the facts of the case on hand.

(I) Nandiesha Reddy Vs. Mrs. Kavitha Mahesh,

(i) That is the case where the respondent before the Hon''ble Apex Court has filed the election petition challenging the election of the appellant

therein on the ground that the returning officer has rejected her nomination illegally. The respondent therein filed a petition under Order VII Rule 11

C.P.C. to reject the election petition and another petition under Order VI Rule 16 C.P.C. to delete certain portion of the election petition. The said

applications were dismissed by the High Court of Karnataka and the same was challenged before the Hon''ble Apex Court and the Hon''ble Apex

Court confirmed the judgment of the Karnataka High Court. Para 26 of the said judgment is usefully extracted hereunder:-

As regards the failure to subscribe the nomination papers by ten electors as required under the first proviso to Section 33(1) of the Act, the

plea of the election petitioner is that it was so subscribed. Whether in fact was done or not is a matter of trial and at this stage we have to proceed

on an assumption that the averments made in the election petition are true. There is clear averment in the election petition that the nomination paper

was subscribed by ten electors. In the face of aforesaid there is no escape from the conclusion that the election petitioner shall be deemed to be a

candidate and entitled to challenge the election of the returned candidate.

(ii) The said judgment may not be applicable to the facts of the present case since that was the case where judgment was rendered before the full-

fledged trial. Since there was a pleading on behalf of the election petitioner that the nomination paper was subscribed by ten electors and the said

fact, according to the Karnataka High Court, has to be considered only at the time of trial.

(J) K. Kalaimani Vs. Mathiarasan S. and Others,

The said decision also will not be applicable to the present case since on facts, it has been found by this Court that the defects found in the

nomination papers were not substantial in character and they were minor discrepancies pertaining to serial numbers and the same could have been,

according to this Court, clarified at the stage of presentation itself. Therefore, in my considered view, the said judgment may not be applicable to

the case on hand.

(K) Ramesh Rout Vs. Rabindra Nath Rout,

(i) In the said election petition, the election of the appellant therein was challenged on the ground of improper rejection of the nomination papers of

the proposed candidate. It was averred therein that the proposed candidate had filed Form A and Form B signed in ink by the authorized person

along with the first set of nomination papers showing that he had been duly sponsored by BJD to contest as a party nominee from 89 Athgarh

Assembly Constituency and with other three sets of nomination, he had filed Xerox copies of original Forms A and B duly authenticated by a

notary public. The election petitioners raised diverse grounds in challenging the order of the Returning Officer dated 6.4.2009 whereby the

nomination papers of the proposed candidate were rejected. The question came up for consideration in that matter was whether it is mandatory for

a candidate set up by a recognized political party to file original ink-signed Forms A and B appended to para 13 of the 1968 Order. The finding of

the Hon''ble Apex Court in paras 49, 62, 65, 66, 76, 77 and 78 are as follows:-

The proposed candidate admittedly filed his nomination paper proposed by a single elector having been set up by BJD, a recognised political

party in the State of Orissa, and, therefore, it was incumbent upon him that the requirements of Para 13 of the 1968 Order were fully complied

with. In other words, it was necessary for the proposed candidate that Forms A and B referable to clauses (b), (c) and (d) of Para 13, 1968

Order were submitted to the Returning Officer duly signed in ink by the authorised person of BJD not later than 3:00 p.m. on 4-4-2009.

In the present case, the checklist (Ext. 11), Form 3-A (Ext. 42/F) and the list of the nominated candidates checklist (Ext. 44) give rise to

presumption in favour of the proposed candidate that he had filed Form A and Form B duly signed in ink by the authorised person of BJD with the

first set of his nomination paper. The question is whether this presumption has been rebutted by the returned candidate? We do not think so. The

oral evidence of the returned candidate (RW 1) and his witness (RW 2) is not of much help insofar as this aspect is concerned. The Returning

Officer has not stated firmly and with certainty in his evidence that the proposed candidate had not filed Form A and Form B signed in ink by the

authorised person of BJD. Rather he stated that had it come to his notice that the original Form A and Form B duly signed in ink were not filed

along with the nomination paper by the proposed candidate, he would have made an endorsement to that effect in the checklist.

A careful consideration of the evidence of the Returning Officer leaves no manner of doubt that he has not distorted the facts nor withheld

anything from the court with regard to presentation of nomination papers by the candidates including the proposed candidate. The evidence on

record i.e. the evidence of the Returning Officer, the documentary evidence, namely, the checklist, Form 3-A displayed on the notice board, the

consolidated list of nominated candidates and the evidence of PW 2 clearly establish that original Form A and Form B signed in ink by an

authorised officer of the party (BJD) were presented by the proposed candidate along with the first set of nomination papers on 4-4-2009. The

finding returned by the High Court in this regard cannot be said to be wrong or unjustified.

A careful consideration of the evidence of the Returning Officer leaves no manner of doubt that he has not distorted the facts nor withheld

anything from the court with regard to presentation of nomination papers by the candidates including the proposed candidate. The evidence on

record i.e. the evidence of the Returning Officer, the documentary evidence, namely, the checklist, Form 3-A displayed on the notice board, the

consolidated list of nominated candidates and the evidence of PW 2 clearly establish that original Form A and Form B signed in ink by an

authorised officer of the party (BJD) were presented by the proposed candidate along with the first set of nomination papers on 4-4-2009. The

finding returned by the High Court in this regard cannot be said to be wrong or unjustified.

It is a fact that the original Forms A and B were not available on record before the Returning Officer on 6-4-2009 at the time of scrutiny.

However, we are not persuaded by the submission made on behalf of the returned candidate that in the absence of original Forms A and B on

record, the Returning Officer had to proceed on the basis of records available before him on that day and he had no option but to reject the

nomination. The least expected of the Returning Officer, when he found that original Forms A and B were not available on record, was to make

brief enquiry about non-availability of Forms A and B. It was all the more necessary as the nomination papers along with accompanying documents

were sent for xeroxing.

The High Court finally concluded that the proposed candidate had filed the original Form A and Form B duly signed in ink by the authorised

person of BJD with the first set of his nomination papers and, accordingly, decided Issue 6 in favour of the election petitioners. The consideration

of the matter by the High Court in para 14 of the judgment may be reproduced as it is:

No doubt at the time of filing of nomination, the Returning Officer is not required to scrutinise the nomination and the accompanying documents

in minor details, but he is duty-bound to examine the same on technical standpoint. Now the pertinent question is whether he was expected to

examine whether the original ink-signed Form A and Form B were filed, while examining the nomination paper along with the accompanying

documents, on technical standpoint. In my considered opinion, he had to do so, particularly when he deposed that had it come to his notice that

Shri Ranendra Pratap Swain filed the xerox copies of the original ink-signed Form A and Form B, he would have endorsed it at the bottom of the

checklist and directed him to file the original ones. At this stage Mr. Palit, learned counsel for the respondent submitted that unless, an election

petitioner fully established his case, it would not be proper to set aside the election. In support of his submission, he relied on the decision in Ram

Phal Kundu v. Kamal Sharma, wherein the Apex Court held as follows:

Therefore, unless the election petitioner fully established his case, it will not be legally correct to set aside the election of the appellant.

As found from the evidence of PWs 1 and 2 the latter filed the original ink-signed Form A and Form B in his first set of nomination. This part of

their evidence could not be shaken. Even no suggestion was given to PW 1 that PW 2 did not file original ink-signed Form A and Form B in his

first set of nomination. So, the above decision is not applicable to the present case.

The Returning Officer has admitted in his evidence that the nominations along with all the accompanying documents of all the eight candidates were

xeroxed outside in Anand Xerox of Athgarh. He has also admitted that on 4-4-2009 all the four sets of nomination papers of Shri Ranendra

Pratap Swain were xeroxed to display the same in his notice board. The possibility that, in the process the original ink-signed Form A and Form B

were inadvertently exchanged for the xerox copies thereof, cannot be ruled out. Under such premises, in my considered opinion, Shri Ranendra

Pratap Swain had filed the original Form A and Form B duly signed in ink by the authorised person with the first set of his nomination.

Accordingly, Issue 6 is answered in the affirmative.

In what we have already discussed above, we do not find any error in the consideration of the matter by the High Court.

The election petitioner, as noticed above, in Ground 5(E) set up the case that the objection of non-filing of original Forms A and B signed in

ink by the authorised officer of the party was not raised by any of the contesting candidates or any person on their behalf present at the time and

place of scrutiny. It was the Returning Officer who raised the issue of non-filing of original Forms A and B but he refused minimum opportunity to

the election petitioner to rebut the same. In our view, the Returning Officer ought to have acted in terms of the proviso to Section 36(5) of the

1951 Act and afforded an opportunity to the election petitioner until next day to rebut the objection and show to the Returning Officer that the

proposed candidate had filed Forms A and B duly signed in ink by the authorised person of BJD. PW 3, the authorised representative of the

election petitioner did state in his evidence that he requested to the Returning Officer, when he raised the objection that original Forms A and B

were not filed, to enquire into the matter about the missing Forms A and B. It was not necessary to state in the election petition the evidence of

PW 3 in support of Ground 5(E).

(ii) That is a case on evidence. It was found that Form A and Form B signed in ink by the authorized officer of the party were filed along with the

papers of the candidate. When the returning officer raised the issue that it has not been filed during scrutiny, it was held that minimum opportunity

to rebut the same should have been given to the election petitioner. However, in the case on hand, the attestation of atleast three proposers was

not made at the time of filing of the nomination papers or at the time of scrutiny of the same. Hence, the said judgment may not be applicable to the

facts of the present case.

(L) 2012 11 SCC 390 Shambhu Prasad Sharma v. Shri Charandas Mahant & Amp: ors.

That is the case where the appellant therein has pleaded in his election petition that the nomination papers filed by respondents 2 to 8 therein were

incomplete for want of a proper affidavit required to be filed in terms of the orders passed by the Hon''ble Apex Court in Union of India (UOI) Vs.

Association for Democratic Reforms and Another, and the instructions issued by the Election Commission requiring the candidates to file such

affidavits along with their nomination papers. On the facts of the above case, the Hon''ble Apex Court found that the nomination paper is not

considered sacrosanct and what is to be seen is whether there is a substantial compliance of the requirement as to form. Every departure from the

prescribed format cannot, therefore, be made a ground for rejection of the nomination papers. In the case at hand, before the Hon''ble Apex

Court, the appellant therein alleged that the affidavit did not in the prescribed format to state whether the candidate had any outstanding liabilities

qua financial institutions or the Government. Thus, the above case did not deal with the rejection of nomination papers by the returning officer on

the ground pointed out in the case on hand. Further, the Hon''ble Apex Court held that nomination papers shall not be rejected unless the defects

are substantial in character. But, in the case on hand, I have already pointed out that the defects in the nomination paper filed by the election

petitioner are substantial in character. Hence, the said judgment may not be applicable to the facts of the present case.

It is contended by the learned Senior Counsel appearing for the returned candidate that in an election petition, the returned candidate need not

confine the grounds available before the returning officer to reject the nomination, but also could raise other grounds. In support of his contention,

he has relied on the decision of the Hon''ble Apex Court reported in AIR 1959 Supreme Court 422, N.T. Veluswami Thevar vs. G. Raja Nainar,

wherein the Hon''ble Apex Court has observed as follows:-

The argument is that if the jurisdiction of the tribunal is coextensive with that of the returning officer, then the enquiry before it must be confined to

the grounds which were urged before the returning officer. Now, the observation quoted above were made statedly with reference to Rule 47, and

assuming that they apply to an enquiry u/s 100(1)(c), the question still remains, what is the jurisdiction of the returning officer in hearing objections

to nomination papers ? His jurisdiction is defined in Section 36(2), and the tribunal must therefore have jurisdiction to decide all the questions

which can be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning

officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the tribunal,

when raised.

The question now under consideration came up directly for decision before the High Court of Rajasthan in Tej Singh vs. Election Tribunal, Jaipur

and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground

by the returning officer was defective on one or more of the other grounds mentioned in Section 36(2) of the Act, and that such a plea, if taken,

must be enquired into by the Election Tribunal.

Even if the returning officer has not referred in his order in so many terms that thumb impressions of the proposers were not attested, the said

argument could be advanced by the returning candidate as per the dictum laid down by Hon''ble Apex Court in the said judgment.

In yet another decision which was relied on by the learned Senior Counsel appearing for the returned candidate is reported in Narender Singh

Vs. Mala Ram and Another, , wherein the Hon''ble Apex Court has held that while appreciating the evidence of the election petitioner and the

returned candidate, if it is equally balanced and on the basis of the same inference can be drawn either in favour of the returned candidate or in

favour of the election petitioner, one in favour of the returned candidate should be preferred.

Considering the totality of the circumstances referred to above and also considering all relevant materials and the judgments cited above, I am

of the considered view that--

(i) The nomination paper filed by the election petitioner to contest in 78, Rishivanthiyam Assembly Constituency, State of Tamil Nadu is non-est in

the eye of law and not a valid one as per Section 33 of the Representation of the People Act, 1951.

(ii) The election petitioner is not definite that she has filed her nomination paper in accordance with Section 33 of the Representation of the People

Act, 1951 and that she has rectified the entire defects pointed out by the returning officer. On one hand, it is stated that the election petitioner has

filed the nomination paper in accordance with the provisions of the Representation of the People Act, 1951 and on the other hand, it is stated that

the defects have been cured. Further, it is also the case of the election petitioner that she sought time to rectify the defects, but, however, time was

not granted. Therefore, the stand taken by the election petitioner is too different/inconsistent.

(iii) Atleast three proposers have affixed their thumb impressions in the nomination paper of the election petitioner. But, the same were not attested

in the manner known to law.

(iv) The above referred defect is substantial one, which cannot be cured.

(v) Even as per clause (4) of Section 36 of the Representation of the People Act, 1951, the returning officer shall not reject any nomination paper

on the ground of any defect, which is not of a substantial character. This could only mean that if the defect is of substantial character, the same can

be rejected.

(vi) As pointed out earlier, the thumb impressions of three proposers were not attested, which is of a substantial character as per the dictum laid

down by the Hon''ble Apex Court referred earlier. Therefore, in my considered view, the returning officer has rightly rejected the nomination paper

filed by the election petitioner, which does not call for any interference by this Court.

(vii) Therefore, the grounds taken by the election petitioner to set at naught the order of the returning officer, rejecting her nomination and to set at

naught the election of the returned candidate are liable to be rejected and accordingly, rejected.

In fine, the election petition stands dismissed. However, there is no order as to costs.