Satbir Singh Kadian vs Bijender

Ashok Bhan, J.—Defeated candidate (hereinafter referred to as `the petitioner'') has filed this petition under sections 80 and 81 read with sections 100 and 101 of the Representation of People Act, 1961 (hereinafter referred to as `the Act'') challenging the election of the returned candidate respondent from 19 Naultha Assembly Constituency of Haryana held in April 1996 on the grounds of illegal rejection of nomination papers of Manoj Kumar S/o Shiv Charan and Karam Chand S/o Sant Ram; illegal acceptance of the nomination paper of the respondent and also on the basis of error in the counting of polled votes and for declaring the election of the respondent to the Legislative Assembly of Haryana as void.

A Notification was issued for holding general elections to all the Assembly Constituencies in the State of Haryana in March 1996. As per the election programme notified, the last date of filing the nomination papers was upto 3.4.1996. The date of Scrutiny was 4.4.1996 and the last date of withdrawal of the nomination papers was 6.4.1996. Elections, if any, were to be held on 27.4.1996. Petitioners contested the election as a candidate of a recognised party, namely Samata Party, and the respondent contested the election on the ticket of Haryana Vikas Party. After the last date of withdrawal of nomination papers, 18 candidates, including the petitioner and the respondent, were left in the election fray. Election was held on 27.4.1996, counting of votes started on 8.5.1996 and the result was declared on 10.5.1996. Respondent was declared elected by a margin of 1123 votes. Respondent polled 24,790 votes while the petitioner polled 23,667 votes.

It is averred that on 3.4.1996, petitioner, along with his proposer Amar Singh and a few others, went to the office of the District Development and Panchayat Officer, Panipat, who was the Returning Officer of the 19 Naultha Assembly Constituency, at about 11.00 AM to file the nomination papers as well as to see which other candidates were filing the nomination papers and how many candidates were in the election fray. Petitioner, along with his proposer and supporters, remained in the office of the Returning Officer upto 3.00 PM. Returning Officer was taking the nomination papers and keeping them without any preliminary scrutiny/verification. Candidates were told to be present at the time of scrutiny on the next date. Major Kumar S/o Shiv Charan came to file his nomination papers along with his proposer Manoj Kumar S/o Suraj Mal at about 2.40 PM on 3.4.1996. Returning Officer kept his papers without seeing/verifying the same. Manoj Kumar candidate, after filing his nomination papers, left the room of the Returning Officer. He came back within a minute or so and told the Returning Officer that there was some error left in the nomination paper regarding the Voters Serial number of his proposer Manoj Kumar S/o Suraj Mal and he may be allowed to correct the same. However, the Returning Officer declined to entertain his request on the plea that there was a rush for filing of nomination papers, 3.4.1996 being the last date for filing the same. Manoj Kumar, candidate, was told to be present on the date of scrutiny for making the necessary corrections. A number of persons filed their nomination papers on 3.4.1996, which included Karam Chand S/o Sant Ram as well.

Scrutiny of nomination papers was held on 4.4.1996 in the office of Rao Surat Singh, Returning Officer. Time for scrutiny was from 11.00 AM to 3.00 PM. Petitioner, along with his proposer Amar Singh, reached the office of the Returning Officer at about 10.45 AM on 4.4.1996. At that time, a number of candidates, their, proposers and supporters were present, which included Manoj Kumar, candidate his proposer Manoj Kumar and Karam Chand, another candidate and his proposer Mauji Ram. Besides these, others were also there. It is alleged that the Returning Officer called the candidates and their proposers in his room for scrutiny purposes at 11.00 A.M. The scrutiny was an eye wash as the Returning Officer had already got typed his orders regarding acceptance/rejection of nomination papers on each of the nomination papers. Returning Officer, in the presence of his staff and the candidates who were present at that time, announced the names of persons whose nomination papers had been accepted and put his signatures on the orders already typed on the nomination papers. He, then declared that the nomination papers of other candidates were invalid and he was going to reject the same. Before he could affix his signatures on the rejection order of the nomination papers which had been declared as invalid, Manoj Kumar, candidate and his proposer Manoj Kumar, raised an objection to the effect that the nomination papers of Manoj Kumar should not be rejected and they be permitted to make the necessary corrections in the nomination papers which had been promised to them by the Returning Officer on the previous date. Similar request was made on behalf of Karam Chand. Petitioner also made a request that Manoj Kumar and Karam Chand, candidates be permitted to correct the clerical mistakes in their respective nomination papers. The request was declined by the Returning Officer stating that the correct particulars of the candidates and their proposers should have been given in the beginning and since he had already got the order typed about the rejection of nomination papers, the request made by the candidates and the petitioner could not be accepted. Nomination papers of Manoj Kumar were rejected on the ground that at serial No. 33 of Booth No. 156 mentioned in the nomination papers, there was no person by the name of Manoj Kumar S/o Suraj Mal, who was the proposer of Manoj Kumar and that Manoj Kumar, candidate, had proposed himself as a candidate. Nomination papers were rejected as there was no proposer to his candidature. Nomination papers of Karam Chand, the other candidate, were rejected on the ground that there was no booth and serial number in the electoral roll which had been mentioned in the nomination papers filed by Karam Chand. Case of the petitioner is that serial number of Manoj Kumar S/o Shiv Charan, candidate, is at serial number 379 while that of Manoj Kumar S/o Suraj Mal, proposer, is at serial No. 454 of the Voters'' List of Booth and Part No. 156 of Village Diwana. Manoj Kumar, proposer, had correctly written the Part/Booth number i.e. 156, in the nomination papers while proposing the name of Manoj Kumar candidate, but by oversight and clerical mistake he had wrongly mentioned the serial number as 33 against the correct number 454. Karam Chand and his proposer Mauji Ram had filled in the serial number of their votes and Part number of the electoral roll from the electoral roll prior to the current electroral roll on the basis of which the election was to be held. Name of Karam Chand was mentioned at serial number 112 and the name of his proposer was at serial number 333 of Booth/Electoral Part No. 85(A). Karam Chand produced the previous electoral roll and sought to correct the serial number of their votes as well as Part number of the electoral roll from the current electoral roll, but the same was declined by the Returning Officer. It is alleged that the mentioning of wrong voters'' serial number and Part Number of the electoral roll in the nomination papers is not a substantial defect which could entail the rejection of the nomination papers. Under Proviso to section 33(4) of the Act, it is obligatory on the part of the Returning Officer to satisfy himself on the presentation of a nomination paper that the name and electoral roll number of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll. Under section 36(4) of the Act, the Returning Officer cannot reject any nomination paper on the ground of any defect which is not of substantial nature. Wrong mentioning of the correct Voters'' serial number and Part number of the electoral roll was not a substantial defect and the same could be corrected at the time of scrutiny provided the Returning Officer had granted due opportunity to the candidates. Returning Officer was duty bound to give an opportunity, both to Manoj Kumar and Karam Chand, to make the necessary corrections in their nomination papers at the time of scrutiny and the failure to do so has resulted in illegal rejection of the nomination papers which has vitiated the result of the election, and, therefore, the election of the returned candidate is liable to be set aside on this ground.

Next ground for setting aside the election of the respondent taken in the petition is that the respondent was not eligible/qualified to contest the election as he did not make and subscribe to the oath or affirmation according to the form set out for this purpose in the Third Schedule to the Constitution of India. Respondent was required to take the oath in the name of God or on affirmation. Respondent filed his nomination papers at about 11.50 A.M. on 3.4.1996. He signed the oath before the Returning Officer and gave the same to him and went away. He did not read the oath before the Returning Officer. Further, he did not score out whether he had taken the oath in the name of God or on solemn affirmation which is mandatory and a person is not qualified under Article 173(a) of the Constitution to contest the election, unless he takes such oath. Thus, the respondent was disqualified under section 100(1)(a) of the Act. Petitioner, at the time of scrutiny, had raised an objection before the Returning Officer regarding the ineligibility of the respondent to contest the election but the Returning Officer neither entertained nor dealt with the objection of the petitioner while accepting the nomination papers of the respondent.

The next ground taken by the petitioner is that total number of votes taken out of the ballot boxes of various polling Booths of 19Naultha Assembly Constituency as per the computation sheet for all the 12 rounds of counting, were reported to be 82,902 whereas while making actual total thereof, it came to 84,072. There is a difference of 1170 votes between the ballot papers recovered from the ballot boxes and that of counting while the margin of victory is shown to 1123. Thus, it has materially affected the election.

During round No. 12, petitioner had polled 1893 votes while that of respondent were 1922, whereas, in Form No. 20, the votes polled by the petitioner have been shown as 1477 and that of the respondent as 2390. 521 votes pertaining to Booth No. 82 which were ordered to be kept aside by the Election Commission of India, were, in fact, actually counted in favour of the respondent, which has again materially affected the result of the election.

Respondent, in his written statement, apart from contesting the petition on merits, has taken a preliminary objection to the effect that paras 5, 6 and 10 of the petition contain vague and general allegations and did not disclose any material fact and cause of action and, therefore, are liable to be struck off. Similarly, paras 7, 8, 9 and 11 to 15 of the election petition do not contain the material facts as envisaged under Sections 83, 86 and 100 of the Act, and are, therefore, liable to be struck off being frivolous.

On merits, the allegations that the respondent had contested the election on the symbol of Haryana Vikas Party and had secured 24,790 votes as against 23,677 votes polled by the petitioner, have been admitted. It has also been admitted that the respondent was declared elected. It has been denied that the petitioner along with his proposer and others remained present in the office of the Returning Officer upto 3.00 PM, on 3.4.1996. It has been denied that the Returning Officer was taking the nomination papers and keeping them without any preliminary scrutiny/verification. It has also been denied that Manoj Kumar, candidate, and his proposer came back to the room of the Returning Officer immediately after filing the nomination papers with a request to correct certain errors in the nomination papers filed by Manoj Kumar s/o Shiv Charan. Returning Officer did not refuse to entertain the request of Manoj Kumar, candidate, to make the necessary corrections as none was made. Candidate and his proposer are duty bound to complete the nomination papers in the prescribed form. Nomination papers of the candidates are to be completed in all respects. Returning Officer is required to make only a perpherial enquiry. As Manoj Kumar and Karam Chand did not file their nomination papers according to Rule 2(1)(f) of the conduct of Election Rules, 1961, their nomination papers were rightly rejected on the next date at the time of scrutiny. It has been denied that Manoj Kumar and Karam Chand were present at the time of scrutiny or that they made a request to the Returning Officer to permit them to make the corrections in their nomination papers. No such request was made. Scrutiny continued from 11.00 AM to 3.00 PM and the final list of acceptance/rejection of nomination papers was displayed after 3.00 PM. Reasons have been recorded for rejecting the nomination papers of both these candidates, which are valid. Returning Officer had taken the nomination papers of each candidate serial wise and had passed the orders. No one pointed out that the name of Manoj Kumar, proposer of Manoj Kumar, candidate, had been wrongly mentioned at serial No. 33 of Booth No. 156. In fact, at serial No. 33, the name of one Vedo wife of Haman is mentioned. Nobody pointed out that the name of Manoj Kumar, proposer, finds mention at serial No. 454 of the Voters'' List. The nomination papers of Manoj Kumar, candidate, were rightly rejected by the Returning Officer. The observation of the Returning Officer that Manoj Kumar, candidate, had himself proposed his name was also correct as the particulars of the electoral roll as per rule 2(f) of the Rules pertaining to Manoj Kumar were not completed in the nomination papers; that the father''s name of the proposer had not been mentioned in the nomination papers. Similarly, the nomination papers of Karam Chand were rightly rejected by the Returning Officer on the ground that there was no Booth and Serial No. as was mentioned in the nomination papers. According to section 15 of the Representation of the People Act, 1950, for every constituency, there shall be an electoral roll, which shall be prepared in accordance with the provisions of the Act under the superintendence, direction and control of the Election Commission. According to section 14(b) `qualified date'' in relation to the preparation or revision of every electoral roll means the first day of January of the year in which, it is prepared or revised. According to section 21, the electoral roll for a constituency shall continue to be in force until the completion of the such revision, if so directed. Electoral roll for the Haryana Assembly Elections were the electoral rolls of 1995 as corrected upto January, 1996. According to electoral rolls of 1995, there was no Booth No. 85(A) in the entire 19Naultha Assembly Constituency. Returning Officer was having the current electoral roll on the basis of which the elections were held. Returning Officer had rightly rejected the nomination papers of Karam Chand as names of Karam Chand and his proposer Mauji Ram could not be found as per description given in the nomination papers in the electoral rolls of 19Naultha Assembly Constituency. It has been denied that it was obligatory on the part of the Returning Officer to give due opportunity to the candidates or their proposers to satisfy them regarding the validity of the nomination papers. It is alleged that Manoj Kumar and Karam Chand are the supporters of the petitioner and it appears that their nomination papers were filed at the last minute as dummy candidates with the intention to make out a ground of the election petition after the defeat of the petitioner in the election.

Respondent has denied that he was not eligible/qualified to contest the election. It has been denied that he did not make and subscribe to the oath according to the form set out for that purpose in the Third Schedule of the Constitution of India. It has been stated that the respondent had filed four sets of nomination papers. He took the oath in the name of God in the presence of the Returning Officer. Answeringrespondent signed the oath form after taking the Oath in the name of the God and handed over the same to the Returning Officer. Returning Office also signed the oath Certificate in his presence. It has been denied that the petitioner had raised any objection regarding the validity or eligibility of the answeringrespondent from contesting the election at the time of scrutiny. In the certificate issued by the Returning Officer, the words of Solemn Affirmation have been struck off, meaning thereby that the respondent had taken the oath in the name of God.

Averments made in para15 of the petition have also been denied. It has been denied that there is a difference of 1170 votes between the ballot papers recovered from the ballot boxes at the time of counting. It has also been denied that there is any error in Form20. Petitioner had secured 1477 votes in the 10th round and the answering respondent had polled 2390 votes. In the 12th round, petitioner had polled 1893 votes and the answeringrespondent had secured 1922 votes. Certified copies of the votes obtained by the candidates in all the twelve rounds falsify the plea of the petitioner that there was any difference of votes, which were taken out from the ballot boxes at the time of counting. It has been denied that 521 votes pertaining to Booth No. 82 were counted in favour of the respondent. The said votes were not counted at all because the said votes were kept in a sealed cover separately and the result of the respondent was declared after taking permission from the Election Commission of India. That the respondent had won by a margin of 1123 votes without taking into consideration 521 votes polled at Booth No. 82. It has been denied that the election of the respondent has been materially affected due to any of the irregularities/illegalities alleged in the petition. It has been asserted that the election was conducted in a fair manner and there was no illegality/irregularity in the conduct of the election or the counting of votes.

Respondent has also taken an additional ground that Manoj Kumar S/o Shiv Charan was not eligible to contest the election as he was 23 years of age at the time of filing of nomination papers. Manoj Kumar had filled his age to be 23 years in the nomination papers filed by him which shows that he was not qualified to contest the election as he was less than 25 years of age. Although the Returning Officer did not reject his nomination papers on the ground of Manoj Kumar being underage, but the same were liable to be rejected on this ground as well.

On the pleadings of the parties, following issues were framed :

"1. Whether in the light of the pleas taken in the preliminary objection, paras 5 to 15 of the election petition, are vague and deficient in material facts and thus liable to be struck off ? OPR

Whether the nomination papers of Manoj Kumar and that of Karam Chand son of Sant Ram were wrongly rejected by the Returning Officer and if so, what effect ? OPP

Whether the nomination papers of Bijender Singh the returned candidate were wrongly accepted for the reasons stated in para 14 of the election petition ? OPP

Whether the election of Sh. Bijender Singh the returned candidate has been materially affected and is liable to be set aside in view of the irregularities and errors as mentioned in para 15 of the election petition ? OPP

Relief."

Issue No. 1 was not pressed at the time of arguments. Petitioner has examined PW1 Om Parkash, Naib Tehsildar from the office of District Election Officer, Panipat, PW3 Mauji Ram, Proposer of Karam Chand, PW4 Manoj Kumar s/o Shiv Charan, candidate, who had contested the election and PW5 Charan Singh, his supporter, besides himself as PW2.

Respondent appeared as RW1 besides examining RW2 Raj Pal, his election agent and brother.

Issue No.2

Mr. H.S. Mattewal, learned Senior Advocate appearing for the petitioner, argued that Manoj Kumar, candidate and his proposer were registered as voters in 19Naultha Assembly Constituency and were qualified to contest in the election and be the proposer of the candidate, respectively. Similarly, Karam Chand and his proposer Mauji Ram were registered as voters in that constituency and were qualified to contest in the election and be the proposer of the candidate, respectively. Errors in regard to electoral roll numbers of the candidate and the proposer in the electrol rolls and the nomination paper do not constitute defects of a substantial character as mentioned in the proviso to section 33(4) of the Act. Both Manoj Kumar and Karam Chand had asked for an opportunity to make the corrections in the nomination paper immediately after filing the nomination papers thereafter, at the time of scrutiny, which was declined by the Returning officer illegally. Under section 36(4), the Returning Officer could not reject the nomination papers on any grounds of defects which are not of substantial character. It was obligatory on the part of the Returning Officer to have given due opportunity to the candidate/his proposer to satisfy him regarding the validity of the nomination papers and failure to do so on his part which led to rejection of the nomination papers, amounts to an illegality and, therefore, the rejection of nomination papers was illegal rendering the election to be void.

As against this, Mr. H.S. Hooda, learned counsel appearing for the respondent, argued that in fact no opportunity was sought either by Manoj Kumar or Karam Chand to make the necessary corrections in the nomination papers either at the time of filling of the nomination papers or at the time of scrutiny. Only a perpherial inquiry is made at the time of receipt of nomination papers. Returning Officer was not required to make a roving inquiry of the entire electoral roll and ascertain the voters serial number of the candidate or his proposer. No legal consequences flow from the omission on the part of the Returning Officer to carry out his responsibility at the stage of filing of the nomination papers.

P.W.2 Satbir Singh Kadian, PW3 Mauji Ram, proposer of Karam Chand and PW4 Manoj Kumar, candidate and PW5 Charan Singh, a supporter of the petitioner have stated that both Manoj Kumar and Karam Chand had asked for an opportunity to make the corrections in the nomination papers regarding serial number and part number of the electoral roll immediately after filing the nomination papers but the Returning Officer did not entertain the request at that stage because of rush of work and advised them to come on the date of scrutiny. Both of them again made a request at the time of scrutiny to the Returning Officer to permit them to make the necessary corrections but the Returning Officer declined this request as well. Their statements have been contradicted by RW1 Bijender, the contesting respondent and RW2 Raj Pal, his election agent. Their case is that neither Manoj Kumar nor Karam Chand made a request to make the necessary corrections in the nomination papers at either stage.

Section 33(1) provides that on or before the date appointed under clause (a) of Section 30 each candidate shall either in person or by his proposer, between the hours of eleven o''clock in the forenoon and three o''clock in the afternoon, deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Provisions of section 33 of the Act are mandatory in nature and the candidate is duty bound to complete the nomination paper in the prescribed form. According to rule 2(1)(f) of the Conduct of Election Rules, 1961, electoral Roll number of a person means :

(i) the serial number of the entry in the electoral roll in respect of that person,

(ii) the serial number of the part of the electoral roll in which, such entry occurs, and

(iii) the name of the constituency to which the electoral roll relates.

Nomination paper of the candidate is to be completed in all respects.

Sections 33(4) and 36(4) read as under :

"Section 33(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 electrol 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."

"Section 36(4) :

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

Supreme Court of India in Brij Mohan v. Sat Pal, AIR 1985 SC 847, has held that it is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer the electoral rolls or nomination papers do not constitute defects of a substantial character. The same would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll, that the Returning Officer had to conduct only a peripherial inquiry at the time of receipt of nomination papers and in case correct facts are not brought to his notice at the time of scrutiny, he would be justified in rejecting the nomination papers. In the said case, Sat Pal, an elector in the Jind Constituency had challenged the election of the returned candidate on the ground that one Dog Ram was registered as an elector at serial No. 177, House No. 57 in part 39 of the electoral roll of the Jind Constituency. Ram Partap who proposed Dog Ram as a candidate, was registered as elector at Serial No. 313, House No. 6 in part 39 of the same constituency. The name of Dog Ram and his postal address were correctly given in the nomination paper but the electoral roll was mentioned as 57 instead of 39 by an inadvertent mistake committed by the person who filed the nomination paper. Similarly, in the case of the proposer Ram Partap, the serial number of the elector and the number of the constituency were given correctly but the number of his house was wrongly entered in the column meant for the part of the electoral roll. A learned Single Judge of this court found that the candidate Dog Ram and the proposer Ram Partap were registered as Voters in the Jind Constituency and were qualified to contest in the election and propose the candidate respectively. He found that errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls and the nomination paper do not constitute defects of a substantial character as mentioned in proviso to section 33(4) of the Act and accepted the petition and set aside the election. The inaccuracies in the nomination paper were technical in nature and should have been rectified by the Returning Officer especially when no other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram. While reversing the judgment of this court, it was held by their Lordships of the Supreme Court that at the stage of receipt of nomination papers only a peripherial inquiry is to be made and that no legal consequences flow from the omission on the part of the Returning Officer or Specified Assistant Returning Officer to carry out his responsibility at the stage of receipt of the nomination paper under Section 33(4). It was held :

"20. Before we proceed to consider the evidence we wish to state that the learned Single judge has been swayed by two things in reaching the conclusion that the rejection of the nomination paper of Dog Ram was improper. They are (1) that errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or the nomination papers do not constitute defect of a substantial character as noted in the proviso to S. 33(4) of the act and (2) that the Returning Officer had told the candidate Dog Ram and the proposer P.W.2 when the nomination paper was presented, that it was all right and thus tripped them into an error, for had he told them at that time that there were some discrepancies is in the nomination paper in the regard to electoral roll numbers they would have either made the corrections then and there or would have gone more fully prepared to meet objections at the time of scrutiny. The serial numbers and part numbers mentioned in the nomination paper relate to Ami Lal of Jalalpura Khurd and Premo wife of Satbir of Barsana village and not to the candidate Dog Ram and the proposer P.W.2. It is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character. They would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the material placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll. If that is not the case, he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency. As regards the tripping by the Returning Officer we find that there is no allegation in the election petition that there was any assurance by the Returning Officer at the time of receipt of the nomination paper that there was nothing wrong in it. Even according to Mr Kacker the enquiry by the Returning Officer at the time of delivery of the nomination paper is only a peripheral enquiry in which the Returning Officer in the present case seems to have been satisfied by finding two numbers each given in regard to the candidate and the proposer that they were the serial number and part number of the electoral roll which the proposer was bound to give correctly in regard to the candidate and himself in the nomination paper. In the absence of any such allegation of tripping in the election petition we think that the evidence of the proposer P.W. 2 which is not even corroborated by the evidence of any other witness that he and the candidate presented the nomination paper to the Returning Officer and showed him the voters list and that he told them that the nomination paper was in order. This Court has shed over and over again that no amount of evidence can be looked into upon a plea which was never put forward in the pleadings. In these circumstances we think that the learned single Judge was not justified in accepting the evidence of P.W.2 and holding that the Returning Officer was guilty of tripping the candidate and the proposer by any assertion on his part into any believing that there was nothing wrong in the nomination paper. The candidate and the proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by the Returning Officer himself suo motu at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the Returning Officer had received the nomination paper without raising any objection. It is at the time of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny."

Supreme Court of India again considered this question in Lila Krishan v. Mani Ram Godara and others, AIR 1985 SC 1073. While reversing the judgment of this court again, it was held :

"The contents of the S. 33(4) Proviso and the provisions of subs. (4) of S. 36 when read together make it clear that the mistake with reference to the serial number of the proposer in nomination paper was an error which could be corrected. Under Section 36(1) on the date fixed for scrutiny of nominations election agents, one proposer of each candidate and one other person duly authorised in writing by each candidate are entitled to appear before the Returning Officer, and such persons are entitled to reasonable facilities for examining the nomination papers. The purpose of making such provision is to facilitate scrutiny. The presence of candidate, his election agent and another person acquainted with the constituency would certainly facilitate the process of scrutiny. Defect covered by the proviso to S. 33(4) could easily be resolved if people authorised under S. 36(1) are present at the time of scrutiny. If the correlation has not been made and the Returning Officer has no assistance to fix up the identification of the proposer it cannot be said to be a defect not of substantial character. It could not be a statutory obligation of the Returning Officer to scrutinise the electoral roll for finding out the identity of the proposer when the serial number turns out to be wrong. But if interested and competent persons point out to the Returning Officer that it is a mistake, it would certainly be his obligation to look into the matter to find out whether the mistake is inconsequential and has, therefore, either to be permitted to be corrected or to be overlooked."

The matter was again considered by a three Member Bench of the Supreme Court in Bhogendra Jha v. Manoj Kumar Jha, AIR 1996 SC 2099 : 1996(3) RCR (Civil) 311 (SC) and it was held :

"Under Section 36(4) of the Act, the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Under Section 36(1), the Returning Officer has the power to conduct an enquiry. It is settled law that it is a summary enquiry. When the Returning Officer scrutinises to the nomination paper, the parties or the nominees are required to be present and if they seek liberty to place the necessary material, the Returning Officer is enjoined to adjourn the case to the next day. In case they are able to place the necessary material and satisfy the Returning Officer of the correctness of the enrolment as a candidate or the address of the nominee, the Returning Officer would consider the same. But he is not expected to sift the evidence and find the placement in the electoral roll, the name and particular of the nominee."

Voters'' serial number and part number of the electoral roll of Manoj Kumar, candidate have been correctly mentioned but the voters'' serial number of Manoj Kumar, proposer, has been mentioned as 33 which does not pertain to him. It pertains to one Smt. Vedo. Similarly, in the case of Karam Chand, his voters, serial number is mentioned as 112 and that of his proposer Mauji Ram as 333 in part 85(A) of the electoral roll. According to section 15 of the Representation of the People Act, 1950, for every constituency there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the superintendence, direction and control of the Election Commission. "Qualifying date" in relation to the preparation or revision of every electoral roll under Part III of the 1950 Act, means the Ist day of January of the year in which it is so prepared or revised. Under Section 21 of the 1950 Act, the electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under that Act. Electrol roll for a constituency would be the one which is in force at the time of publication of the notification. Electoral roll for the Haryana Assembly elections were the electoral rolls of 1995 as corrected upto January, 1995 and according to these rolls there was no Booth No. 85(A) in the entire 19Naultha Assembly Constituency. Returning Officer was having the current electoral roll on the basis of which elections were held. The nomination papers of Karam Chand were rightly rejected by the Returning Officer because there was no Booth 85(A) in the current electoral roll which was in force. Returning Officer rightly observed that their names could not be ascertained from the electoral roll in force and rejected the nomination papers. Karam Chand has not stepped in the witness box.

Similarly, the nomination papers of Manoj Kumar was rightly rejected by the Returning Officer as the name of his proposer Manoj Kumar could not be tallied with the serial number of the vote mentioned by him in the nomination papers. No reliance can be placed in the testimony of PW2 Satbir Singh Kadian, PW3 Mauji Ram, PW4 Manoj Kumar and PW5 Charan Singh that a request was made by Manoj Kumar and Karam Chand or by the petitioner on their behalf for permission to make the necessary corrections in the nomination papers immediately after filing the nomination papers or at the time of scrutiny. It is too much of a coincidence that immediately after filing the nomination papers, both Manoj Kumar and Karam Chand detected the mistakes in the nomination papers filed by them and made a request to the Returning Officer for permission to make the necessary corrections. Again, it is too much of a coincidence that PW2 Satbir Singh Kadian and supporter PW5 Charan Singh were present at that time. PW5 Charan Singh is a convenient witness. PW2 Satbir Singh Kadian is an interested party. Overall reading of the statement of PW4 Manoj Kumar does not inspire confidence. He has contradicted his own statement at many places and also the statement of PW2 Satbir Singh Kadian. Satbir Singh Kadian in his statement has said that he requested the Returning Officer to grant an opportunity to Manoj Kumar and Karam Chand to make corrections in the nomination papers whereas Manoj Kumar in his statement as PW4 has stated that he does not know that Satbir Singh Kadian made such a request to the Returning Officer. This witness has gone to the extent of saying that after finding that his age has been wrongly mentioned in the matriculation certificate, he destroyed the same, which is unbelievable.

The story put forth by the petitioner, PW3 Mauji Ram and PW4 Manoj Kumar is clearly an after thought that they sought an opportunity to make the necessary corrections in the nomination forms immediately after filing of the nomination papers or at the time of scrutiny. RW1 Bijender has stated that both Manoj Kumar and Karam Chand were not present at the time of scrutiny. It seems that both of them were non serious candidates. Either of them did not make a complaint in writing immediately thereafter to the higher authorities regarding the illegal rejection of their nomination papers. Overall reading of the evidence of these witnesses leaves an impression that they are not telling the truth and the story offered by them that the Returning Officer, without affording an opportunity to any of the candidates or their proposers to scrutinise the nomination papers of the candidates, passed the orders either rejecting or accepting the nomination papers and displayed the list of the candidates whose nomination papers had been accepted/rejected immediately after 11.00 AM, cannot be accepted. Apart from the oral testimony of PW2 to PW5, there is no evidence to substantiate the plea raised by the petitioner. On the basis of the oral testimony of these witnesses it cannot be held that the Returning Officer arbitrarily rejected the nomination papers of Manoj Kumar and Karam Chand. Returning Officer has given reasons for rejecting the nomination papers. Petitioner did not summon the Returning Officer to appear as a witness. Presence of Manoj Kumar and Karam Chand has not been noted by the Returning Officer in his orders. It seems that they were not present at the time of scrutiny of the nomination papers.

RW2 Raj Pal has admitted that Manoj Kumar was present on the date of scrutiny. Even if it is accepted that Manoj Kumar was present on the date of scrutiny, it cannot be said that he actually put forth the correct voters serial No. and Part No. of the electoral roll showing his proposer to be a voter in that constituency. Returning Officer was not supposed to make a roving enquiry and make a search of the entire electoral roll of the assembly constituency to ascertain as to whether the candidate or his proposer was a voter in the constituency or not.

It seems that both these candidates were either dummy candidates to be used as reserve material to impugn the election of the returned candidate in the event the election result went against any unsuccessful candidate or are being conveniently used by the defeated candidate to challenge the result of the election of the returned candidate. Returning Officer had no bias either against Manoj Kumar or Karam Chand or in favour of the defeated or returned candidates.

Copies of the Voters'' List showing that either of the candidates or their respective proposers were actually voters in that constituency or even in the State of Haryana to make them eligible to become a candidate or a proposer for an assembly seat in Haryana, have not been brought on record. Mauji Ram, PW3, in his statement has not stated Part No. of the electoral roll and serial No. of his vote or that of the candidate Karam Chand, who was proposed by him, in the Voters'' List of the 19Naultha Assembly Constituency. Similarly, Manok Kumar in his statement has not stated the correct serial number and Voters'' List of his proposer.

In the nomination papers, Manoj Kumar had filled his age to be 23 years. According to Article 173(b) of the Constitution, a person less than 25 years of age is not eligible to contest the election to a State Legislative Assembly. Although the nomination papers of Manoj Kumar were not rejected on the ground of his being underage, the respondent, in his written statement has taken the additional ground that the nomination papers of Manoj Kumar were liable to be rejected as he was not qualified to contest the election as he was less than 25 years of age. Counsel for the respondent argued, on the basis of law laid down by the Supreme Court of India in N.T. Velluswami Thevar v. G. Raja Nainar and others, AIR 1959 SC 422, Dharam Singh Rathi v. Hari Singh, M.L.A and others, AIR 1975 SC 1274, Mohd. Yassin Shah v. Ali Akbar Khan, AIR 1976 SC 1866, that the respondent could take this as a ground of defence even if the nomination papers were not rejected on this ground and there was no finding to that effect recorded by the Returning Officer in his order. In Mohd. Yassin Shah''s case (supra), it was held as under :

"Even if the ground on which the nomination paper has been actually rejected is not a permissible ground, if the successful candidate can make out a case that the nomination paper could have been properly rejected on one of the grounds mentioned in Section 47 of the Act, the rejection would not be improper and the election would be upheld."

Mr. Mattewal, learned counsel appearing for the petitioner, very fairly conceded this additional plea can be taken by the respondent for the first time but argued that there was no positive evidence in this case to show that Manoj Kumar, candidate, was less than 25 years of age.

Manoj Kumar has mentioned his age to be 23 years in the nomination paper, Exh. P1, and has admitted in his statement as PW4 that his age as per the matriculation certificate was less than 25 years and that he had destroyed the certificate because the same was of no use to him as he was not to join the government service. Simultaneously, he stated that his age was more than 25 years and that his age has been wrongly mentioned in the matriculation certificate. There is no other evidence.

I find myself in agreement with the contention raised by Mr. Mattewal that there is no positive evidence on the record that Manoj Kumar was less than 25 years of age and, therefore, was ineligible to contest the election. Respondent has failed to produce any positive evidence from the Panchayat/Municipal Record or the School/record of the matriculation examination conducted by the Board to show that Manoj Kumar was less than 25 years of age. In the absence of the same, no positive finding can be recorded that Manoj Kumar was less that 25 years of age at the relevant time, and therefore, ineligible to contest the election.

Accordingly, it is held that the nomination papers of Manoj Kumar and Karam Chand were rightly rejected by the Returning Officer and issued No. 2 is decided against the petitioner and in favour of the respondents.

Issue No.3

Admittedly, the returned candidate filed four sets of nomination papers, Exhs. P21 to P24, along with four separate oath forms with each of the nomination papers. Exhs. P25 to P28, Returning Officer issued an Oath Certificate, Exh. P29, certifying that the respondent had taken to oath as prescribed in the Third Schedule of the Constitution of India in his presence in the name of God declaring his allegiance to the Constitution of India as required under Article 173 of the Constitution of India. Case of the petitioner is that the returned candidate did not take the oath of allegiance to the Constitution of India whereas the case of the respondent is that he took the oath on presentation of each set of nomination papers separately and only one certificate, Exh. P29, was issued to him.

Case of the petitioner that the respondent handed over the nomination papers along with the oath forms duly signed by him to the Returning Officer but did not take the oath in his presence, cannot be accepted. It is presumed that all official acts are done in accordance with the form set out unless it is proved to the contrary. Petitioner has failed to prove that the returned candidate did not subscribe to the oath, as mentioned in the Oath Certificate, Exh. P29, issued to him. Returning Officer was not required to furnish Oath Certificates for each of the nomination papers because a candidate is not required to subscribe to the Oath for as many number of times as the sets of nomination papers filed by him. Returned candidate was required to take oath only once.

Oath Form is in two parts and the same reads as under :

"Form of Oath of Affirmation

(Article 84(a)(173(a) of the Constitution of India)

I,, having been nominated as a candidate to fill a seat in the *Council of States/House of People/Haryana Legislative Assembly, do swear in the name of God/Solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.

(Signature and name in

block letters of the candidate)

*Score out which is not applicable

Sworn before me in the name of God/Solemnly affirmed by Shri/Shrimatiat (place) this daymonthyear

athours.

(Signatures of the authorised person)

Name, the designation and stamp.

In the oath Form, Exh. P25, the words `on solemn affirmation'' have been struck off in the oath i.e. the first part, but the same have not been struck off in the certification given by the authorised person. In the oath Form, Exh. P26, the same have not been struck off at both the places. In oath Form, Exh. P27, the words `on solemn affirmation'' have been struck off in the second part but the same have not been struck off in the first part. In oath Form, Exh. P28, the same have not been struck off in either of the two parts. Exh. P29 is the oath certificate given to the returned candidate certifying that he had taken the oath in the presence of the authorised person and the same reads as under :

"Certificate for receipt of Form of Oath (To be handed over to the candidate by the authorised person)

Certified that Bijender, a candidate for election to the 19Naultha Assembly Constituency has made and subscribed the oath affirmation as required by the Constitution of India, before me at my office at D.D.P.O. Panipat, at 11.45 AM on 3.4.1996.

Sd/

Executive Magistrate,

Panipat.

Dated : 3.4.1996.

*Here insert one of the following alternatives as may be appropriate.

(1) House of the people from the Constituency.

(2) Legislative Assembly from the 19Naultha Constituency.

(3) Council of States by the elected members of the Legislative Assembly of (State)."

In the oath certificate, Exh. P29, the words `on solemn affirmation'' have been scored off.

Counsel for the petitioner argued that according to the oath forms, Exhs. P25 to P28, the oath was taken by the returned candidate at 11.45 AM, 11.55 AM, 12.00 Noon and 12.02 PM. Case of the respondent is that he had filed four sets of nomination papers along with four oath forms and had taken four oaths, although he has been issued only one oath certificate, Exh. P29. In Exh. P29, the time mentioned is 11.45 AM. Counsel for the petitioner argued that Exh. P29 pertains to Exh. P25 only because the time of taking the oath in Exh. P25 and Exh. P29, tally and correspond to each other i.e. 11.45 AM. he further argued that the oath certificate, Exh. P29, does not relate to the other oath form Exhs. P26 to P28. Since there is no oath certificate for oath forms. Exhs. P26 to P28, it be presumed that the returned candidate did not take oath corresponding to the oath forms, Exhs. P26 to P28. Further argument raised by the counsel for the petitioner is that the oath form Exh. P25 has been signed by Shri N.S. Dhull. Returning Officer of the Samalkha Assembly Constituency and, therefore, the same has to be ruled out of consideration. If Exh. P25 is ruled out of consideration automatically, the oath certificate, Exh. P29 has to be ruled out of consideration. There is no proof on the record that the petitioner had taken oath for the other sets of nomination papers filed by him.

I do not find any force in this submission of Mr. Mattewal. As observed earlier, the returned candidate had filed four sets of nomination papers along with four sets of oath forms. Corresponding to each nomination paper, there is an oath form, which has been duly signed by the Returning Officer. Only one oath certificate, Exhs. P29 was issued. It is not necessary that oath or affirmation is to be taken more than once if the candidate has filed nomination from more than once constituency or if he filed more than one set of nomination paper from the same constituency. All that is required under Article 173(a) is that the person concerned should make and subscribe an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. For this, reference may be made to the judgment of the Supreme Court in Khaje Khanavar Khadar Khan Hussain Khan and another v. Siddavanahalli Nijalingappa and another, AIR 1969 SC 1034, wherein it was ruled that once on oath is taken in respect of one nomination paper the necessary qualification is obtained and this removes the bar laid down by Articles 84(a) and 173(a) of the Constitution.

Technically speaking, the Returning Officer was required to issue four oath certificates as the returned candidate had filed four oath forms corresponding to each of the nomination papers, which had been duly authenticated by the Returning Officer. Instead, he issued only one certificate, certifying that the returned candidate had taken the oath in his presence to put at naught any further controversy regarding taking of oath. Returned candidate need not have administered oath four times as is the case projected by the returned candidate as well as Om Parkash, PW1. Even in the absence of the oath certificate, Exh. P29, it stands established from the oath forms, Exhs. P25 to P28, which have been duly signed by the Returning Officer, that the returned candidate had taken the oath prescribed in the Third Schedule to the Constitution of India. PW1 Om Parkash has also stated that the returned candidate had taken the oath.

In the present case, four sets of nomination papers were filed along with the corresponding four sets of oath forms, which had been duly signed by the candidate as well as the Returning Officer indicating that the candidate had subscribed to the oath in the presence of the Returning Officer. Exh. P25 has been signed by Rao Surat Singh, Returning Officer at Mark `F'' but the same has also been signed by some other person at Mark `A'' and it may be that Shri N.S. Dhull, Returning Officer of the adjoining Samaltha Assembly Constituency has signed the same. On the strength of the fact that at Mark `A'' in Exh. P 25, the Returning Officer of the adjoining constituency has signed, counsel for the petitioner argued that the returned candidate did not make and subscribe to the oath before the person authorised to administer the oath for 19Naultha Assembly Constituency. There is no force in this submission for the reason that at Mark `F'' in Exh. P25, the signatures of the Returning Officer of 19Naultha Assembly Constituency have been appended. This part, Exh. P29 is a certificate issued by the Returning Officer certifying that the returned candidate had subscribed to the oath in the name of God in his presence and put his signatures on the oath form. Certificate, Exh. P29, is a conclusive evidence to prove that the returned candidate had taken the oath in the name of God in the presence of the authorised person.

It is a strange coincidence that the petitioner has claimed and tried to show his presence every time the candidates, including Manoj Kumar and Karam Chand, filed their nomination papers. Normally, a person who himself is a serious candidate and who is contesting the election on a ticket from a politically recognised party, would not be present at the time when his opposite, again a serious candidate, contesting the election on the ticket of another recognised party is filing his nomination papers. Taking advantage of the fact that in Exh. P25 at Mark `A'' signatures of some person other than the Returning Officer of the constituency have been put and the words `on solemn affirmation'' have not been scored off in the oath forms, Exhs. P25, P26 and P28, petitioner has put forth his case that the returned candidate did not take the oath or affirmation. As pointed out earlier, signatures of the Returning Officer at Mark `F'' in Exh. P25 are there. Signatures at mark `F'' in Exh. P25 are similar/same to the signatures of Rao Surat Singh, the Returning Officer of 19Naultha Assembly Constituency which he has put on other documents including Exhs. P25 to P29, Signatures of Rao Surat Singh at mark `F'' in Exh. P25 have also been recognised by RW2 Raj Pal, who is a practising Advocate and is familiar with his signatures. PW1 Om Parkash, Naib Tehsildar from the office of the District Election Officer, Panipat, has also affirmed that the returned candidate had subscribed to the oath. Oath forms, Exhs. P25 to P28 were duly signed by Rao Surat Singh, the Returning Officer. Certificate of oath, Exh. P29, was issued to the returned candidate. This witness recognised the signatures of Rao Surat Singh on Exh. P29. PW1 Om Parkash is a totally disinterested and unbiased witness. In view of his statement and the recognition of signatures of Rao Surat Singh in whose office he is working, it is amply proved that the returned candidate had subscribed to the oath in the presence of the duly authorised person and he was issued a certificate of oath, Exh. P29, to put all controversies to an end regarding subscribing of the oath. The very purpose of the issuance of the certificate of oath, Exh. P29, is to put all controversies at rest regarding any future claim regarding taking of oath. Once such a certificate is produced, the onus to prove that the oath was not taken by the candidate who has been issued the oath certificate, shifts to the opposite side. A presumption arises in favour of the candidate who produces such oath certificate, Petitioner has failed to rebut the presumption that the returned candidate had subscribed to the oath in the name of God.

Even, if the oath certificate, Exh. P29 is ruled out of consideration, from the perusal of Exhs. P26, P27 and P28, it is evident that the respondent had filed the oath forms, Exhs. P26 to P28, corresponding to the nomination papers, Exhs. P22 to P24. Respondent had taken the oath and it was certified by the Returning Officer that the respondent had taken the oath in his presence. There is evidence on the record in Oath Forms Exhs. P26 to P28 to show that the respondent had taken separate oaths for the other three sets of nomination papers filed by him in the presence of the authorised person, which stands certified from Part II of the Oath Forms Exhs. P26 to P28.

For the reasons recorded above, issue No. 3 is also decided against the petitioner and in favour of the respondent.

Issue No.4.

Petitioner''s case that the total number of votes taken out from the ballot boxes of various polling booths of the constituency as per the Computation Sheet for all the 12 rounds were reported to be 82,802 whereas, while making actual totals thereof, it came to 84,072, thus, making a difference of 1170 votes between the ballot papers recovered from the ballot boxes. The victory margin of the respondent is only 1123 and, therefore, the result of the election has been materially affected. It has been pointed out that there is an error in Form20. During round 12, petitioner had polled 1893 votes while that of the respondent were 1922, whereas, in Form20 the votes of the petitioner have been shown as 1477 and that of the respondent as 2390.

The position stands clarified by PW1 Om Parkash, Naib Tehsildar from the office of the District Election Officer, Panipat. It has been stated by him that in the record deposited in the office of the District Election Officer, the figures of round No. 10 have been shown in round No. 12 as well. Actual figures of round No. 12 were not available in the office of the District Election Officer at the time when the certified copies of the result sheet and roundwise copies were supplied to the petitioner. Correct round wise figures of round No. 12 are now available in the office of the District Election Officer, which have been obtained from the office of the Chief Electoral Officer, Haryana. After receiving the original of round No. 12 from the office of the Chief Electoral Officer, Haryana, Chandigarh, petitioner to whom wrong certified copy was supplied, was intimated the mistake committed. It was communicated vide Exh. P31 dated 18.10.1996. Correct certified copy of round No. 12 was also sent to the petitioner, which was duly received by him. Certified copies of the result sheet and the roundwise figures of all the rounds have been attached as Exhs. P33 to P115.

A perusal of the result sheet and the roundwise counting figures show that the total number of votes taken out from the ballot boxes and the total number of votes which were counted tally. There is no difference of 1170 votes between the votes polled and the votes recovered from the ballot boxes at the time of counting. Petitioner secured 1477 votes in the 10th round and the respondent secured 2390 votes. In the 12th round, the petitioner had secured 1893 votes and the respondent had secured 1922 votes. Petitioner was not supplied the figures of round 12 but instead was supplied the figures of round 10 which had also been shown to be the figures of round 12 in the office of the District Election Officer, which resulted in the mistake. After detecting the mistake, the District Election Officer informed the petitioner and supplied him the correct roundwise figures. In fact, there is no mistake as pointed out by the petitioner in the counting of votes or in the number of ballot papers recovered from the ballot boxes. The number of ballot papers recovered from the ballot boxes tally with the number of votes polled.

Counsel for the petitioner then argued that 521 votes of Booth No. 82 which were ordered to be kept aside by the Election Commission of India were also counted by the Returning Officer. There is no force in this submission. When ballot boxes from Booth No. 82 were opened, it was found that the ballot papers were in the bundles of 2 to 5 instead of they being single ballot papers. Some doubt had arisen in the mind of the Returning Officer who addressed a communication to the Secretary, Election Commission of India, seeking clarification. On this, the Commission vide Fax Message, Exh. P18, directed that the ballot boxes used at the Polling Station No. 82 be kept aside and the ballot papers in the ballot boxes be not counted. It was directed that if, after counting of the remaining ballot papers, the margin of votes of first two leading candidates of the Assembly and corresponding Parliamentary Constituency is more than the number of electors assigned to the said Polling Station plus 5% of total valid votes polled by all candidates, the result be declared. In case, the margin is less, the Returning Officer should seek further directions of the Commission. After final counting, without taking into consideration the 521 votes recovered from the ballot box of Booth No. 82, the margin being less than 5% of the total votes polled the Returning Officer sent a Fax Message, Exh. P19, to the Election Commission of India seeking further directions. It was pointed out that the respondent Bijender was leading with a margin of 1123 votes ahead of his nearest rival Satbir Singh Kadian, petitioner, 5% of total valid polled votes of 79,357 is 3968. After counting the 521 votes from Booth No. 82, the total comes to 4489. Permission as well as direction was sought for declaring the result. Election Commission of India, issued Fax Message, Exh. P20, granting permission to declare the result of the said constituency. PW1 Om Parkash has stated that 521 votes polled at Booth No. 82, which had been kept aside under the directions of the Election Commission of India were not counted. The same were not taken into consideration while declaring the result. The margin of the leading candidate of 1123 was apart from 521 votes which had been polled at Booth No. 82. This fact is also evident from the communication, Exh. P19, sent by the Returning Officer to the Election Commission of India.

In view of the testimony of PW1 Om Parkash and the documentary evidence, Exhs. P18 to P20, available on the record, it is evident that 521 votes polled at Booth No. 82, which had been kept aside under the directions of the Election Commission of India were not taken into consideration while preparing the final result sheet and the returned candidate led with a margin of 1123 votes over his nearest rival without taking into consideration the votes polled at Booth No. 82.

For the reasons stated above, issue No. 4 is also decided against the petitioner and in favour of the respondent.

For the reasons recorded above, I find no merit in this petition and dismiss the same with costs which are assessed at Rs. 1,000/