Rabinder Singh Sohail vs Sh. Hira Singh Gabaria

N.K. Agrawal, J.—This petition has been filed by Rabinder Singh Sohil. The petitioner has alleged that he intended to be a candidate of the Indian National Congress in the general election held for the Punjab Legislative Assembly in the year 1997. The petitioners case is that he went to the office of the Returning Officer of 60 Ludhiana (Rural) Assembly constituency before 3 P.M. on January 20, 1997 but his nomination paper, which was duly accompanied by other requisite documents, was not accepted. Thus, he was denied the right to contest the election and hence the present petition. The respondent, Hira Singh Gabaria, was declare delected, after contest, from that constituency.

On the basis of the pleadings of the petitioner and the respondent, the following issues were framed :-

(1) Whether the Returning Officer illegally refused to receive the nomination papers of the petitioner and of the other candidates? If so, to what effect?

(Petitioner)

(2) Whether refusal to receive the nomination papers of the petitioner and others amounted to rejection of the nomination papers?

(Petitioner)

(3) Whether the petitioner has no locus slandi to file the present petition as he was neither an elector in 60 Ludhiana (Rural) Assembly Constituency nor was acandidatc in the election?

(Respondent)

(4) Whether the petition is liable to be dismissed u/s 86 of the Representation of the People Act for non-supply of true copy of the petition to the respondent inasmuch as the details of the documents attached with the petition were not incorporated in the petition nor the copies of documents were supplied to the respondent?

(Respondent)

(5) Whether the defects noticed by the Registry of this Court were fatal and the corrections made by the petitioner after the expiry of the period of limitation rendered the petition time-barred?

(Respondent)

(6) Relief."

Issues Nos. 4 and 5 have already been decided against the respondent by order dated September 10, 1997.

On the other 3 issues, namely, issues Nos. 1, 2 and 3, the parties have adduced evidence. The petitioner and also the respondent have appeared in the witness-box and have examined five witnesses each.

The petitioner, Rabinder Singh Sohil, who is the prime witness, has stated, in his evidence, that he had been nominated as a candidate by Shri Santokh Singh Randhawa, President, Punjab PardeshCongressCommittee. Recollected, from the party office at Chandigarh, the authorsation letter issued in his favour and reached Ludhiana on January 20, 1997 at 2 P.M. He immediately, along with his proposers and supporters, reached the office of the Returning Officer, Jasbir Singh Hcer. It was 2.48 P.M. at that time. He obtained the nomination form from the office of the Returning Officer and after filling up the same, presented the form along with requisite documents before the Returning Officer. However, the Returning Officer asked him to wait for some time and he complied with the same. At 3 P.M.. the Returning Officer announced that the candidates, who were present in his room for filing their nomination papers, shall be permitted to present their papers even after 3 P.M. The Returning Officer asked his gunman to close the doors of his office after making an announcement outside the office room that the candidates intending to file nomination papers may do so. Shri Hira Singh Gabaria was sitting in the room and the Returning Officer was busy talking to him. After sometime, the petitioner asked the Returning Officer to accept his nomination paper, whereupon the Returning Officer asked him to wait for some more time as he wanted to have consultation. The Returning Officer consulted the respondent and then informed the petitioner that his nomination paper could not be received as the time, by which the nomination paper could be filed, had already expired at 3 P.M. The petitioner protested against the refusal but with no result. He then left the office and made a telephonic call to the Deputy Commissioner-cum-District Election Officer, Ludhiana. Since the Deputy Commissioner was not available on telephone, the petitioner left a message to the Private Secretary to the Deputy Commissioner and requested him to convey the message to the Deputy Commissioner that the petitioner wanted to talk to him. The petitioner talked to the Deputy Commissioner on telephone at about 4.45 P.M. He was informed by the Deputy Commissioner-cum-District Election Officer who also happened to be the Returning Officer for another assembly constituency, that the nomination forms had been accepted by him as a Returning Officer by 4.30 P.M. The petitioner sent a complai nt to the Deputy Commissioner. There was another candidate, Kirpal Singh, who also wanted to context the election as an independent candidate and his nomination paper had also been declined to be received by Jasbir Singh Hcer, the Returning Officer of 60 Ludhiana (Rural) Assembly Constituency. The complaint was, therefore, signed by the petitioner as well as Kirpal Singh and its copy was sent by Fax to the Election Commission of India. New Delhi. A second complaint was sent to the Election Commission, New Delhi, the next day also.

The petitioner went to Delhi and met Sh. M.S. Gill, Chief Election Commissioner. He again submitted a copy of his complaint along with an affidavit to the Chief Election Commissioner. Since nothing happened, he came back to Chandigarh and filed a Civil Writ Petition in the High Court on January 29, 1997. As the election process had already commenced, the petitioner failed to obtain any orders in his favour from the High Court and filed an SLP before the Supreme Court. There also, the matter was held to have become infructuous.

The petitioner has alleged that the Returning Officer declined to accept his nomination paper because the Returning Officer wanted to help the respondent, who was a candidate from the Shiromani Akali Dal. Shri Jasabir Singh Heer, the Returning Officer, was at that time posted as the Estate Officer in the office of the Punjab Urban Development Authority (PUDA). The petitioner has stated that the brother of the respondent was a building contractor and was having dealings with the officials of PUDA in the course of execution of the contracts. It was for that reason that Sh. Jasbir Singh Heer, the Returning Officer, was close to the respondent and wanted to help him in the election. The petitioner''s nomination paper was not accepted by the Returning Officer after consulting the respondent, who was sitting by his side in the office. The petitioner has, therefore, challenged the action of the Returning Officer with the plea that the non-acceptance of his nomination paper amounted to its rejection and, therefore, he has a right to challenge the election of the respondent.

Harbans Singh (PW 1) is the Section Officer, Election Commission of India, New Delhi. He has appeared in the witness-box to testify that two complaints had been received from the petitioner by post in the office of the Election Commission. The first complaint was received on January 21, 1997 and the second one on the next day. The first complaint received on January 21, 1997 was forwarded by the Election Commission for enquiry and factual report to the Chief Electoral Officer, Punjab, Chandigarh, Similarly, the second complaint was also sent to the same Officer for report. The Chief Electoral Officer forwarded the report of the Returning Officer on January 24, 1997. Copy of the enquiry report has been placed on record, which shows that the petitioner had reached the office of the Returning Officer at 3.45 P.M. and it was for that reason that his nomination paper was not accepted.

Shri Jasbir Singh Heer, PW 3, has also appeared as a witness for the petitioner but has not supported the pleas put up by the petitioner. He has stated that 11 nomination papers were filed by 9 candidates up to January 19, 1997 and 12 more nomination forms were filed by 8 candidates on January 20, 1997, the last date for filing the nomination papers in 60-Ludhiana (Rural) Assembly Constituency. The respondent had already filed two sets of nomination papers on January 18, 1997 and had come to file his 3rd set of nomination papers to the office of the Returning Officer on January 20, 1997. The petitioner came to file his nomination paper at 3.45 p.m. and not at 2.45 p.m. Since the time was over, he refused to accept the nomination paper from the petitioner. Shri Jasbir Singh Heer has categorically stated that if a candidate was present inside the room of the Returning Officer, his nomination paper was required to be accepted even after 3 p.m. It was so provided in the election law, so that the candidates reaching the office of the Returning Officer before 3 p.m. may not be deprived of their right to contest the election due to delay in the office procedure relating to the receipt of nomination papers. Jasbir Singh has stated that Nahar Singh had, as a Congress Candidate, already filed four sets of nomination papers. Smt. Kulwant Kaur, wife of Nahar Singh, had also filed two sets of nomination papers at 1.51 p.m. on January 20, 1997. Nahar Singh wanted his wife to file another nomination paper as an independent candidate but since she had not brought 10 proposers at that time, she was asked to bring 10 proposers. Sh. Nahar Singh kept waiting in the office of the Returning Officer for his wife along with her 10 proposers. Sh. Hira Singh Gabaria submitted a written note before the Returning Officer after 3 p.m., requesting the Returning Officer not to accept any more nomination paper from any one including the wife of Sh. Nahar Singh, as the time for filing the nomination papers was over. Sh. Jasbir Singh has further stated that the nomination papers filed by the Congress candidate, Nahar Singh were rejected because Nahar Singh had failed to file authorisation letter in time. An authorisation letter was, however, presented by Nahar Singh on the date of the scrutiny.

Kirpal Singh, PW 4, has appeared to support the version of the petitioner. He has claimed that he had gone to the office of the Returning Officer at 1.25 p.m. on January 20, 1997 to file his nomination paper as an independent candidate. He had collected attested electoral roll certificates from the Tehsildar (Elections) for 10 proposers. He came along with his proposers to the office of the Returning Officer at 2.45 p.m. The petitioner as well as Suresh Chand Yadav, a Janta Dal Candidate, were also present inside the office room of the Returning Officer at that time. Sh. Kirpal Singh has deposed that the Returning Officer ordered his gunman to close the doors of his office at 3 p.m. Kirpal Singh presented his papers before the Returning Officer but the papers were not accepted, though it was only 2.55 p.m. Kirpal Singh has admitted that he was a General Secretary of the Congress Party at Ludhiana but he did not know as to which political party the petitioner belonged.

Harjinder Singh, PW 5, has also appeared as an eye-witness in respect of the incident, on which the case of the petitioneris based. Harjinder Singh was a proposer for the candidature of Kirpal Singh. He has stated to have gone to the office of PUDA at 1.25 p.m. along with Kirpal Singh to file the nomination paper for Kirpal Singh. He along with Kirpal Singh came to the office of the Tehsildar (Elections) to obtain certified copies of the electoral roll numbers in respect of the 10 proposers and came back to the office of PUDA at 2.45 p.m. They were told by the Returning Officer that their nomination paper will be accepted and, therefore, they may wait for some time. However, there was some noise after sometime because the nomination papers were refused to be received by the Returning Officer. Therefore, nomination paper could not be tiled by Kirpal Singh.

Kirpal Singh S/o Sucha Singh, PW 6, is also an eye-witness to the incident. He had gone along with the petitioner in the capacity of a proposer. He has stated to have reached the office of PUDA along with the petitioner at 2.48 p.m. Kirpal Singh, an independent candidate, was also present there. The Returning Officer had informed all the candidates and others, who were inside the room, that their nomination papers would be accepted after sometime. The Returning Officer asked his gunman to close the doors of the office. After sometime, the Returning Officer informed all those, who were present inside the office room, that their nomination forms will not be accepted. Hira Singh Gabaria, the Akali Dal Candidate, was sitting with the Returning Officer at that time. Kirpal Singh had admitted that he runs a business at Hapur (U. P.) and he is petitioner''s brother-in-law (wife''s brother).

The evidence produced by the respondent is in rebuttal. Hira Singh Gabaria, RW 2, is respondent, who successfully contested the election as a candidate of Shiromani Akali Dal from 60-Ludhiana (Rural) Assembly Constitutency. He has stated that he went to the office of PUDA to file his 3rd set of nomination paper at 2.15p.m. on January 20, 1997. He filed his paper before the Returning Officer at 2.31 p.m. He noticed that Nahar Singh, Congress Candidate, was sitting there, though he had already filed his nomination paper. Nahar Singh obtained a form of nomination for his wife but did not file it due to the absence of requisite number of proposers. Nahar Singh sent his wife to bring 10 proposers so that she could file her nomination paper. After 3 p.m., Hira Singh Gabaria, filed an application before the Returning Officer requesting him not to accept any more nomination papers as the time for accepting such papers had expired at 3 p.m. Shri Hira Singh Gabaria had stated that the petitioner did not come there before 3 p.m. to file his nomination paper as a covering/substitute candidate of the Congress. Party.

Gurbinder Singh; RW 1, is a clerk in the office of the District Election Officer, Ludhiana. He has produced the office copies of the electoral rolls of Ward No. 39 in 60-Ludhiana (Rural) Assembly Constituency and also the copy of the electoral roll relating to Ward No. 27 of 58-Ludhiana (West) Assembly Constituency. The purpose, for which these two electoral rolls have been filed, shall be discussed at an appropriate place hereinafter.

Subhash Beri, RW 3, has appeared to state that he had met the petitioner in the office of the Returning Officer of 58-Ludhiana (West) Assembly Constituency after 3 p.m. on January 20, 1997. He had earlier met Kirpal Singh in the office of the Tehsildar (Elections) at 2.45 p.m. He was accompanied by Suresh Chand Yadav. On enquiry, Kirpal Singh had informed that he had come there to obtain the certified copies of the electoral roll numbers relating co his proposers. The petitioner had also, on enquiry, informed him that he had come to the office of the Returning Officer of 58-Ludhiana (West) Assembly Constituency by mistake and, therefore, he was going to the officeof PUDA to file his nomination paper. Shri Beri has stated that the office of PUDA was at a distance of about 15 K.Ms, from the office of the Returning Officer of 58-Ludhiana (West) Assembly Constitutency and it takes about 45 minutes to reach the office of PUDA.

Amarjit Singh, RW 4, was posted as Senior Assistant in the office of PUDA. He was assisting the Returning Officer as a Co-ordinator. The office of PUDA was located at number 32-A, Samrala Road, Ludhiana. Amarjit Singh has supported the version of the respondent with the assertion that the respondent had filed his nomination paper at 2.31 p.m. on January 20, 1997. Nahar Singh had also come to the office of the Returning Officer to file his nomination paper but he was not allowed to file any more set of papers inasmuch as four sets of nomination papers had already been filed. Smt. Kulwant Kaur, wife of Nahar Singh, wanted to file her nomination paper as an independent candidate. She obtained the nomination form and went away to bring 10 proposers. Two sets of nomination papers had already been filed by her as a covering candidate of the Congress Party on January 20, 1997. Since she did not return back before 3 p.m., Sh. Hira Singh Gabaria, filed an application before the Returning Officer, requesting him not to accept any more nomination paper after 3 p.m. It was so done because Nahar Singh was still waiting for his wife and intended to file her nomination paper.

Harcharan Singh, RW 5, has appeared to support the version of the respondent. He was a substitute candidate of Shiromani Akali''Dal. He had filed his nomination paper at 1.20 p.m. on January 20, 1997. Shri Hira Singh Gabaria also filed one more set of nomination paper on that day. Nahar Singh was sitting in the office of the Returning Officer so as to file nomination paper of his wife. Though his wife, Smt. Kulwant Kaur, had already filed nomination paper as a party candidate, she wanted to file another nomination paper as an independent candidate. Since it was necessary for an independent candidate to present 10 proposers, she had gone to collect the requisite number of proposers. Harcharan Singh has stated, that he was present in the office of the Returning Officer till 3.20 p.m. but Smt. Kulwant Kaur did not come there by that time to file her nomination paper as an independent candidate.

Parkash Singh, RW 6, has appeared in support of the statement made by Subhash Beri about the presence of the petitioner in the office of the Returning Officer of 58-Ludiana (West) Assembly Constituency, situated in the new Courts compound, Ludhiana. Parkash Singh has stated that he met the petitioner at 3 p.m. on January 20, 1997 in the New Courts Complex. The petitioner informed him that he was going to the office of PUDA to file his nomination paper there. Subhash Beri and Suresh Yadav, Janta Dal workers, were also present there.

The above evidence is relevant to decide Issue No. 1. The answer to Issues Nos. 2 and 3 does not depend on the oral evidence. It would be appropriate to discuss the oral evidence with regard to Issue No. 1.

ISSUE NO. 1.

From an examination of the oral evidence put-forward by the petitioner, it is found that he has not been able to show by any clinching and unimpeachable evidence that he had reached the office of the Returning Officer before 3 p.m. His oral evidence is supported by 3 other witnesses, namely, Kirpal Singh S/o Prem Singh, PW 4, Harjinder Singh, PW 5 and Kirpal Singh S/o Sucha Singh, PW 6. As seen earlier, Kirpal Singh S/o Sucha Singh, PW 6, runs a business at Hapur (U.P.) and, therefore, his presence at Ludhiana on January 20, 1997 appears to be a mere chance. Moreover, he is a close relative of the petitioner. These two factors require this Court to be cautious while reading his evidence. He has stated to have carried Rs. 5000/- in cash for depositing security money for the petitioner. There is no further material on record to show that he did carry the money with him. Since the deposit of security money has also an important bearing on the filing of the nomination paper, this factor again assumes, significance.

The evidence of Kirpal Singh, PW 4, does give support to the petitioner but the evidence suffers from certain discrepancies. Kirpal Singh has admitted that he was functioning as the General Secretary of the Congress Party up to the time of the election in 1997 but he did not know as to which political party the petitioner belonged. This appears strange. If the petitioner as well as Kirpal Singh were the functionaries of the Congress Party, it was not expected of Kirpal Singh that he did not know much about the petitioner. It is also noticed that the petitioner did not place reliance on the nomination paper of Kirpal Singh while presenting the list of documents in this Court. The nomination paper was filed by Kirpal Singh, during the course of evidence, in Court. This is another reason which has to be kept in view while placing reliance on the evidence of Kirpal Singh, PW 4, Kirpal Singh also does not know if Nahar Singh had been permitted by the Congress Party to contest the election on Congress ticket. Kirpal Singh has also no knowledge if there was any covering candidate from the Congress Party during the general election in 60-Ludhiana (Rural) Assembly Constituency. Since the petitioner intended to file hisnomination paper as acovering (substitute) candidate of the Congress Party, it is strange that Kirpal Singh never knew about it. He is a member of the Congress Party since 1977. These circumstances do not inspire much credibility on his evidence.

The evidence of Harjinder Singh (PW5), already discussed above, stands in the same category as is the testimony of Kirpal Singh. Harjinder Singh has claimed that he had filled up the nomination form of Kirpal Singh as a proposer. As stated earlier, the nomination form of Kirpal Singh was filed during the course of evidence in the Court by Kirpal Singh and neither any reliance was placed on the document by the petitioner while filing his election petition nor the document was produced earlier.

The evidence of Returning Officer, Jasbir Singh Heer (PW 3), cannot be rejected, unless it is found that his oral evidence is not worth any credibility and is tainted one. Shri Jasbir Singh has denied that he wanted to help the respondent. There appears no reason as to why he would refuse to accept more nomination papers, particularly when the petitioner was only a covering/substitute candidate of the Congress Party, and 12 nomination papers had already been received by him from 8 candidates on January 20, 1997. The enquiry report sent by him to the Chief Electoral Officer, Punjab, clearly shows that the petitioner Rabinder Singh Sohil had reached the office of PUDA at 3.45 p.m. This enquiry report was submitted by the Returning Officer on January 24, 1997 and, therefore, it is difficult to assume that it was an incorrect report. There appears no specific reason to reach a conclusion that the Returning Officer deliberately declined to receive the nomination paper from the petitioner before 3 p.m. for any extraneous reasons. There is no allegation against the Returning Officer except that he was close to the respondent. Such a bald statement would not be sufficient to bring the status of the Returning Officer to alower level so as to reject his evidence. There must be something more on record to substantiate the charge that the Returning Officer went out of the way to help the respondent.

The evidence of the respondent produced in rebuttal has simply to show that the petitioner never reached the office of the Returning Officer before 3 p.m. It would, however, not mean that the burden of proof would shift to the respondent. As has been seen, the respondent himself has stated that he was present in the office of the Returning Officer beyond 3 p. m. and he had filed an application before the Returning Officer so as to prevent Nahar Singh from filing any nomination paper on behalf of his wife. The evidence oi" Subhash Ben, RW 3, Harcharan Singh, RW 5 and Parkash Singh, RW 6 goes lo suggest that the petitioner was seen at about 3 p.m. in the office of the Returning Officer of 58-Ludhiana (West) Assembly Constituency.

It is also to be noticed that Suresh Chand Yadav, the Janta Dal Candidate, who also wanted to file his nomination paper, has not been produced by the petitioner in evidence. There is nothing on record to show that the petitioner received the authorisation letter at Chandigarh from Shri Santokh Singh Randhawa, President Punjab Pardesh Congress Committee and reached Ludhiana at 2 p.m. No evidence, whatsoever, has been produced by the petitioner to show that he received his authorisation letter at Chandigarh on January 20, 1997, though it was signed on January 18, 1997. That he reached his house at Ludhiana at 2 p.m. and thereafter, arrived at the office of PUDA at 2.48 p.m. is also not proved by any cogent and reliable evidence. As stated earlier, there is further no evidence to show that the petitioner or his brother-in-law, Kirpal Singh S/o Sucha Singh, did carry cash money for depositing the security amount in the office of the Returning Officer. A nomination paper cannot be said to be complete unless the person presenting it, deposits the security money at the same time. It is necessary for a candidate to deposit the security money in the Government-Treasury prior to the filing of the nomination paper or to deposit the money in cash in the office of the Returning Officer at the time of the filing of the nomination paper. In the absence of any substantive evidence about the deposit of security money, the evidence on this count also leaves much to be considered. Therefore, on the evidence of the petitioner, his case on Issue No. 1 is not proved.

Section 33(1) of the Representation of the People Act, 1951 (the Act) specifies the hours between which the nomination paper is to be filed by a candidate. It reads as under :--

"NOMINATION OFNQMINATIONPAPER AND REQUIREMENTS FOR A-VALID NOMINATION :--

(1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O''clock in the forenoon and three O'' clock in the afternoon, deliver to the Returning Officer at the place specified in this behalf in the notice issued 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 no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday :

Provided further that in the case of a local authorities'' constituency, graduates'' constituency or teachers'' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to "ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers."

It is, thus, apparent that a nomination paper is to be filed on or before the last date and that too between 11 a.m. and 3 p.m.

Shri R. C. Dimri, learned counsel for the petitioner, has argued that the Returning Officer had no authority to refuse to receive the nomination paper from the petitioner even if the paper was presented after 3 p.m. His contention is that there is no provision in the Act, empowering the Returning Officer to refuse to receive a nomination paper. He had a right to reject a nomination paper after scrutiny. One of the reasons, for which a nomination paper could be rejected u/s 36(1) of the Act, is that the nomination paper was not delivered within the time and in the manner laid down in Section 33. Section 36(1) reads as under :--

SECTION 36(1):

SCRUTINY OF NOMINATIONS : "(1) On the date fixed for the scrutiny of nominations u/s 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the Returning Officer may appoint; and the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33."

The aforesaid provision does not, however, give any indication that the Returning Officer had to accept a nomination paper even after 3 p.m. on any specific date. He has indeed been vested with the power to examine during scrutiny if the paper had been delivered within the time and in the manner laid down in Section 33. It would, thus, mean that not only in Section 33(1) specified timings have been given but u/s 36(1) also, the question of timing has to be re-examined while conducting scrutiny of the nomination papers. Both the provisions, if read together, leave no room for any doubt that a nomination paper has to be filed within the specified time. If it was not so, there was no reason to make a mention about the time in Section 36(1) of the Act.

Shri Dimri has further argued that the Returning Officer has been empowered, u/s 36(2) of the Act, to reject any nomination on any of the three grounds mentioned therein. One of the grounds is that there has been a failure to comply with any of the provisions of Section 33 or Section 34. Shri Dimri has stated that if a candidate filed his nomination paper beyond the time mentioned in Section 33(1), the nomination paper could be rejected by the Returning Officer u/s 36(2) of the Act. It would be relevant to read Sub-section (2) of Section 36 for this purpose :--

SECTION 36(2) :-- "(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, (reject) any nomination on any of the following grounds :--

(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :--

Articles 84, 102, 173 and 191.

Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that there has been a failure to comply with any provisions of Section 33 or Section 34; or

(c) that the signaure of the candidate or the proposer on the nomination paper is not genuine."

A plain meaning of Clause (b) would reveal that the Returning Officer may reject any nomination if he notices that any of the provisions of Section 33 had been violated. That would, however, not mean to suggest that, while receiving the nomination paper, he has to ignore the timings specified in Section 33(1) and reject the paper only at the stage of scrutiny. There may be a situation where a nomination paper is accepted after 3 p.m. because the candidate was present before the Returning Officer much before 3 p.m. and it took some time for the Returning Officer to complete the process of receipt of the papers from the candidate. There may be a dispute about the exact time at which the paper was filed and if, at the time of scrutiny, there is found to be a non-compliance of the provisions relating to the timing, the Returning Officer would not be helpless to proceed with the matter and not to reject such a nomination paper. The power given to the Returning Officer to again look to the provisions of Section 33 does not preclude him from declining the receipt of nomination paper at the threshold at the time of its filing u/s 33(1) of the Act.

In view of the provisions contained in Sections 33 and 36 of the Act, it cannot be said that the Returning Officer had no authority to refuse to accept the nomination paper even if it was filed beyond the prescribed time. The specific provision, made in Section 33(1) regarding the timing, has to be interpreted in a way that it served the purpose for which it has been enacted. If the argument of Shri Dimri is accepted the Returning Officer will have to accept the nomination paper, even after 3 p.m. and he could only reject it after scrutiny. That would lead to an anomalous situation and render the provisions regarding timing contained in Section 33(1) of the Act nugatory. The provision regarding compliance of Section 33, as contained in Clause (b) of Section 36(2), is aimed at conferring sufficient powers on the Returning Officer and also giving sanctity to the timing of the presentation of the nomination paper. In that view of the matter, the argument of Shri Dimri, that the Returning Officer was bound to receive the nomination paper even after 3 p.m., is liable to be rejected.

Issue No, 1 is, therefore, answered in the negative and against the petitioner.

ISSUE NO. 2 :--

During the course of discussion of Issue No. 1 above, it has been seen that the Returning Officer has been vested with the power to refuse to receive a nomination paper, if it is not presented before him between 11 a.m. and 3 p.m. He has been again vested with a similar power, u/s 36(2), if he comes to the conclusion that any of the provisions of Section 33 has not been complied with.

It has been argued by Shri R.C. Dimri, learned counsel for the petitioner, that the refusal to receive the nomination paper was tantamount to rejection. It is so argued by him because there is no specific provision in the Act empowering the Returning Officer to refuse to receive the nomination paper. As has been already seen, the specific provision contained in Section 33(1) about the timing, during which the nomination paper can be filed, conveys an implicit authority to observe the timing. If it is not so interpreted, the Returning Officer will have no choice but to accept a nomination paper beyond the timing so specified. Shri Dimri has argued that the Returning Officer, by refusing to receive the nomination paper, actually rejected the same and since it is a case of rejection of the nomination paper, the petitioner has an authority to file the election petition. It may be mentioned that the respondent has challenged the competence of the petitioner to file the present petition with the plea that the petitioner has no right to file the present petition because his nomination paper was not rejected.

On a consideration of the pleas on this issue, it is noticed that the refusal did amount to rejection of the nomination paper, though at the threshold and before scrutiny. Thus, the petitioner has a right to challenge the rejection of his nomination paper through an election petition. It cannot be said that a candidate, whose nomination paper is not received by the Returning Officer without any justification, has no remedy to challenge the same. Sub-section (2) of Section 36 of the Act makes it amply clear that a nomination paper is liable to be rejected after scrutiny if it is found that there is a failure to comply with any of the provisions of Section 33 or Section 34 of the Act. In the instant case, there is a non-compliance of the timing contained in Section 33(1) of the Act and, thus, Clause (b) of Section 36(2) comes into play,

In N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, , the question regarding the rejection of a nomination paper was examined. After examining the provisions of Section 100 of the Act, it was held that improper rejection or acceptance of a nomination paper must have reference to Section 36(2) and that the rejection of a nomination paper of a candidate, which is qualified to be chosen for election and who does not suffer from any of the disqualifications mentioned in Section 36(2) would be improper within Section 100(1)(c) of the Act. It was observed that a nomination of a candidate rejected or accepted improperly, is to be considered in the light of the provisions of Section 100(1)(c) of the Act. It is, thus, seen that a nomination, which has been improperly rejected, may be challenged by filing an election petition u/s 100 of the Act. The said Section provides various grounds for challenging an election including the ground of improper rejection of anomination. Shri Dimri has argued, in the light of the aforesaid decision of the Supreme Court, that the petitioner, in the instant case, has a right to challenge if his nomination paper was improperly rejected by the Returning Officer.

In Harjit Singh Mann Vs. S. Umrao Singh and Others, , the question of delay in the presentation of nomination paper has been examined. The appellant''s allegation in that case was that the proposer of the candidate had reached the office of the Returning Officer after depositing the security money in the bank at 2.00 p.m. The Returning Officer placed the nomination paper on his table. Thereafter, he asked the proposer to take back the nomination paper saying that time for filing them had expired. It was further alleged that the Returning Officer got annoyed when the proposer protested that he had filed the nomination paper in time and that the Returning Officer had wrongly noted down the time of presentation of the nomination paper as 15.10 hours. The trial Court disbelieved the averment of the petitioner. The Supreme Court observed, after examining the evidence of the parties, that the nomination papers had been filed 10 minutes after 3 p.m. It was further observed as under :--

"7. An attempt was made to argue that the delay in the presentation of the nomination papers in question could not justify its rejection as it was not a defect of a substantial character within the meaning of Sub-section (4) of Section 36 of the Representation of the People Act, 1951, hereinafter referred to as the Act. In order to appreciate the argument it is necessary to make a cross-reference to Sub-section (1) of Section 33 of the Act which provides as follows :--

"33(1). On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O''clock in the forenoon and three O''clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued 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."

It is therefore the requirement of that sub-section that, inter alia, the nomination paper shall be delivered to the Returning Officer between the hours of eleven O'' clock in the forenoon and three O''clock in the afternoon, so that a nomination paper delivered after three O''clock in the afternoon cannot be said to comply with that provision of Section 33. Sub-section (2) of Section 36 of the Act, which provides for the examination of the nomination papers for the purpose of deciding all objections made to any nomination, requires that the Returning Officer shall reject any nomination paper on the grounds mentioned in the sub-section. We are concerned with ground No. (b) which provides as follows :--

"(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34."

So as there was failure to comply with that provisions of Section 33 which required the delivery of the nomination paper between the hours of eleven O''clock in the forenoon and three O''clock in the afternoon, the Returning Officer had really no option but to reject the nomination paper.

(8) We have considered the argument that such a defect was not of a substantial character within the meaning of Sub-section (4) of Section 36 of the Act, but we are unable to uphold it in the face of the clear requirement of ground (b) of Sub-section (2) of Section 36, referred to above. It has to be appreciated that any other view would make the requirement for the presentation of the nomination paper before the last date for making nominations, and within the specified period of time, unworkable for it will not then be possible to draw a line up to which the delay in the delivery of the nomination papers could be condoned. In fact if the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character, it may be permissible to go to the extent of arguing that the nomination paper may be filed even up to the date and time fixed for the scrutiny of the nominations. That would not only cause administrative inconvenience but put the other candidates to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of the scrutiny of the nominations. We have no hesitation therefore in taking the view that the failure to comply with the requirement that the nomination papers shall be delivered between the hours of eleven O''clock in the forenoon and three O''clock in the afternoon is mandatory and the Returning Officer was justified in rejecting the nomination paper in question because of its breach. .....

From the above observations, it stands settled that the provision regarding the timing of the presentation of the nomination paper has its significance and requires substantive compliance. If the petitioner feels aggrieved by the order of Returning Officer, refusing to receive his nomination paper, he can challenge the same. Since there is no specific provision regarding refusal of the nomination, the provision relating to rejection of the nomination would come into play in the scheme of things. As has been seen, Section 36(2) of the Act, empowers the Returning Officer to reject a nomination paper, if there is found failure to comply with any of the provisions of Section 33. A candidate may challenge the refusal/rejection of his nomination paper by invoking Section 100(1)(c) of the Act.

In view of the above discussion, Issue No. 2 is answered in the affirmative and in favour of the petitioner.

ISSUE NO. 3 :--

The respondent has raised the question that the petitioner has neither any right nor locus standi to file the present petition because he could not be treated to be a candidate within the meaning of the Act. The word ''candidate'' has been defined in Clause (b) of Section 79 as under:--

"candidate" means a person who has been or claims to have been duly nominated as a candidate at any election."

Shri Sukhbir Singh, learned counsel for the respondent, has argued that the petitioner had not been duly nominated as a candidate inasmuch as the authorisation letter purported to have been given to him by the party office was not a genuine document. It is pointed out that the authorisation letter had been actually issued in favour of Nahar Singh, who was a Congress candidate. The name of the petitioner was entered by hand as a covering and substitute candidate. The entry written by hand is said to be without any authentication and, therefore, not a proper authorisation in favour of the petitioner. The authorisation letter has not been proved by the person who issued it. Shri Santokh Singh Randhawa signed the authorization letter in favour of Nahar Singh and it was he alone who could have proved that the petitioner was permitted to contest the election as a covering/ substitute candidate of the Congress Party. There is no explanation as to why the name of the petitioner was written by hand and who did so. It was Sh. Santokh Singh Randhawa, who was the best person to prove that the petitioner had been put up as a covering or substitute candidate for Nahar Singh. It has come on record that Nahar Singh had filed his nomination paper without any authorisation letter from his party. He filed authorisation, issued by Shri .Santokh Singh Randhawa, on the date of the scrutiny but since that was not permissible, his nomination papers were rejected after scrutiny. Shri Sukhbir Singh has, therefore, argued that the petitioner was not a candidate within the meaning of Clause (b) of Section 79 because he had not been duly nominated.

Shri R.C. Dimri, learned counsel for the petitioner, has, on the other hand, contended that the petitioner had claimed himself to be a duly nominated candidate of the Congress Party and there was nothing on record to show that the authorisation letter, issued by the President of the Punjab Pradesh Congress Committee in his favour, was not agenuine and authentic document.

In S. Khader Sheriff Vs. Munnuswami Gounder and Others, , the matterihas been examined with reference to Section 79(b) of the Act. The question there had arisen as to when the appellant therein became a candidate for purposes of Section 123(7) of the Act. It was noticed that a person who begins to hold himself out as a prospective candidate, is a candidate within the meaning of Section 79(b) of the Act. In Nardev Vs. Joti Saroop and Others, , a question as to who was "any other candidate" within the meaning of Section 82(b) of the Act, was under examination. It was held that "any other candidate" includes only the candidate from the particular constituency, election of which is questioned.

Meaning of the word a candidate has been examined by the Andhra Pradesh High Court in N.V.L. Narasimha Rao Vs. Kotha Raghuramayya and Others, . It has been observed that the definition concerned itself not only with the meaning of a candidate but also the time from which a person will be deemed to be a candidate. While the first part of the definition gives the meaning of the term ''candidate'', the second part introduces a legal fiction by providing that a person, coming within the meaning clause, may be regarded as a candidate as from the time with the election in prospect, he begins to hold himself out as a prospective candidate.

Shri R.C. Dimri has argued on the strength of the aforesaid decision of the Andhra Pradesh High Court that the petitioner had been duly authorised by his political party to contest the election as a covering candidate and he held himself out as aprospective candidate. Therefore, he has to be treated as a candidate within the meaning of Section 79(b) of the Act.

It is apparent that the petitioner has a right to the the present petition because he was a candidate authorised by the Congress Party. As has been seen earlier, the authorisation letter issued in his favour cannot be treated to be a fictitious document, unless there is some material on record to that effect. Simply because certain entry has been recorded on the authorisation letter by hand, that would not render the authorisation letter a fictitious document.

Shri Sukhbir Singh, learned counsel for the respondent, has further argued that the electoral roll number was incorrectly recorded in the case of the petitioner as well as his proposer. It is pointed out that the name of the petitioner was mentioned to be existing at Sr. 127 in the electoral roll but that was not correct. A copy of the electoral roll relating to the year 1995 has been placed on record to show that the name of Archna w/o Naresh Kumar finds its place at Sr. No. 127. Similarly, the name of Biru Ram s/o Ram Lakha is found at Sr.No. 217 in the electoral roll relating to the year 1995 whereas the name of Harjinder Singh was mentioned by the petitioner in his papers. Shri R.C. Dimri has explained that the petitioner filed an official copy of the electoral roll number relating to himself as well as his proposer along with his nomination paper. If there was any mistake in the official copy of the electoral roll issued by the Tehsildar (Elections), that was not a mistake on the part of the petitioner.

On a consideration of the plea raised by the respondent, it is found that the mistake in the electoral roll has to be explained by the election office. If the petitioner obtained an official copy of the electoral roll and filed the same along with his nomination paper, he cannot be allowed to suffer. It is also to be noticed that the copy of electoral roll filed by the petitioner along with his nomination paper related to the year 1997 whereas the respondent has filed the copy of the electoral roll prepared in the year 1995. Be that as it may, the point raised by Shri Sukhbir Singh, teamed counsel for the respondent, is to be rejected inasmuch as both the parties have filed official copies of the electoral rolls.

It is admitted by the petitioner that he was not an elector in 60-Ludhiana (Rural) Assembly Constituency. The plea of the respondent is that, for that reason, petitioner was not entitled to challenge the election of the respondent. As has already been seen, the petitioner has been treated to be a candidate because he held himself out to DC a prospective candidate after receiving an authorisation letter in his favour as a covering candidate. Therefore, in that view of the matter, the petitioner, as a candidate, is entitled to challenge the election of the respondent. It was also not necessary for the petitioner to be an elector from that constituency from where he intended to contest the election. The petitioner was a voter in another constituency but he wanted to contest the election from 60-Ludhiana (Rural) Assembly Constituency. There is no legal bar against the petitioner that he should have been an elector from the same constituency.

In view of the above discussion, Issue No. 3 is answered in the negative and against the respondent.

Shri Sukhbir Singh, learned counsel for the respondent, raised certain additional pleas also. He has conteneded that the election of the respondent could be challenged only if the petitioner could show that the result of the election has been materially affected. His argument is that the ground on which the election could be challenged is not to be seen in Clause (c) of Section 100(1) but in Clause (d) thereof. As has been seen earlier, Clause (c) relates to the situation where anomination has been improperly rejected. Clause (d), on the other hand, deals with a case where the result of the election was materially affected by improper acceptance of any nomination or by any corrupt practice or by improper reception, refusal or rejection of any note or by any non-compliance with the provisions of the Constitution or of the Act or the rules. It has already been examined earlier that the case of the petitioner falls under Clause (c) because it was a case of rejection of nomination. It has been held earlier, while discussing issue No. 2, that the Returning Officer, by refusing to receive the, nomination paper from the petitioner, in fact rejected his nomination paper. In that view of the matter, the present petition cannot be said to fall under Clause (d) of Section 100(1) of the Act. Therefore, the petitioner is not required to show that the result of the election, in so far as it concerns a returned candidate, has been materially affected. The plea raised by learned counsel for the respondent by way of additional ground is, therefore, rejected.

Since Issue No. 1 has been answered against the petitioner, the present election petition is dismissed with costs quantified at Rs. 5000/-.