Sunil Kumar vs Rakesh Kumar

Dr. (Mrs.) Sarojnei Saksena, J.—PetitionerSunil Kumar has filed this election petition under Sections 80, 81 and 100 of the Representation of People Act, 1950 (in short the ''Act'') challenging the election of respondent Rakesh Kumar from 57, North Ludhiana Assembly Constituency, to the Punjab Vidhan Sabha held on 7.2.1997, result of which was declared on 9.2.1997.

Petitioner''s contention is that elections to the Punjab Vidhan Sabha were held on 7.2.1997. The petitioner filed his nomination papers for contesting the elections to Punjab Vidhan Sabha from 57, North Ludhiana Assembly Constituency. The petitioner filed the nomination papers as a Bhartiya Janta Party candidate. The respondent had contested the elections on the Indian National Congress (CongressI) ticket. As per the programme issued by the Election Commission of India, the last date of filing the nomination papers was 20.1.1997; scrutiny of nomination Papers was to be done on 21.1.1997; candidates could withdraw their candidatures by 23.1.1997; the date of polling was 6.2.1997 and counting was to be done on 8.2.1997. Later on, the Election Commission of India rescheduled the election programme as 23.1.1997 was declared a National holiday and therefore, withdrawal of candidatures was rescheduled upto 24.1.1997; date of polling and date of counting of the ballots was also rescheduled for 7.2.1997 and 9.2.1997 respectively.

The petitioner, being sponsored candidate of Bhartiya Janta Party, a National Party, submitted his nomination papers on 20.1.1997 at 12.10 p.m. Along with nomination Papers, he also submitted Form ''A'' as per para 13(c) and (d) of the Election Symbols (Reservation and Allotment) Order, 1968. This form was signed by Shri L.K. Advani, President, Bhartiya Janta Party and Shri Balramji Dass Tandon, President of Punjab State Bhartiya Janta Party, who was authorised by the Bhartiya Janta Party to intimate the names of the candidates proposed to be set up by the party in the General/Assembly elections. Along with Form ''A'' From ''B'' was also submitted duly signed by Shri Balramji Dass, President of the Bhartiya Janta Party, Punjab, intimating the name of the petitioner being an approved candidate from 57, North Ludhiana Assembly Constituency, as per para 13(b) of the Election Symbols (Reservation and Allotment) Order, 1968 (in short the ''Election Symbols Order, 1968''). The nomination paper of the petitioner was complete in all respects.

Shri Vir Abhimanyu also filed nomination papers from the same Constituency as Bhartiya Janta Party candidate. He also submitted Form ''A'' and Form ''B'' along with his nomination papers duly authorised as in the case of the petitioner on the same day. Later on, Shri Harish Kumar son of Shri Narauta Ram also filed the nomination Papers as a covering candidate of the Bhartiya Janta Party.

Shri Daljit Singh was the Returning Officer of 57, North Ludhiana Assembly Constituency. The nomination Papers came up for scrutiny on 21.1.1997 before him. Shri Daljit Singh suo motu raised an objection that the Bhartiya Janta Party had set up more than one candidates in this election and he wanted to reject the nomination Papers of the petitioner, thereupon the petitioner requested Shri Daljit Singh to grant him some time to meet the objection.

The petitioner has averred that under Section 36(5) of the Act, it was incumbent upon the Returning Officer to have given an opportunity to the petitioner for clarification. Petitioner also moved an application before the Returning Officer explaining that he has submitted Forms ''A'' and ''B'' for the nomination as a Bhartiya Janta Party candidate and since others have also filed the nomination Papers as Bhartiya Janta Party candidate, his nomination papers be accepted, the symbol reserved for Bhartiya Janta Party be allotted to him. He also requested that 24 hours time be granted to him for getting the clarification/confirmation from the President of the Party. Copy of the said representation given to the Returning Officer on 21.1.1997 is annexed as Annexure P1.

The Returning Officer did not afford any opportunity nor gave any time to the petitioner for getting the said clarification/confirmation from the President of Bhartiya Janta Party, but the Returning Officer proceeded on with scrutiny. At about 4.30 p.m., a letter by the President of Bhartiya Janta Party Shri L.K. Advani was received through fax which was shown to the Returning Officer. In this fax message/letter, it was clarified that the petitioner is the official candidate of the Bhartiya Janta Party. However, the Returning Officer proceeded in his own way and refused to accept the letter on the ground that he has already rejected the nomination papers. Copy of the letter dated 21.1.1997 is annexed as Annexure P.2.

The Returning Officer rejected the nomination papers of the petitioner as well as of Shri Vir Abhimanyu and Shri Harish Kumar by separate order, copies of which are annexed at Annexures P3, P4 and P5.

Petitioner''s contention is that the petitioner''s nomination papers were improperly rejected by the Returning Officer. Petitioner, Shri Vir Abhimanyu and Shri Harish Kumar filed an election petition/representation before the Election Commission of India for revising the orders of rejection of their nomination papers passed by the Returning Officer. However, the Election Commission of India, did not convey any order on this representation, perhaps on the ground that it had no jurisdiction to intervene in the matter.

The petitioner thereafter filed Civil Writ Petition No. 1286 of 1997 titled as Sunil Kumar v. State of Punjab and others, challenging the validity of the orders passed by the Returning Officer improperly rejecting his nomination papers. The Division Bench dismissed the writ petition vide order dated 28.1.1997 holding that the writ petition cannot be entertained at this stage. Only remedy available to the petitioner is to challenge the result of the election after its declaration on the ground that his nomination papers were wrongly rejected. As per schedule the election was held on 7.2.1997. 63,943 valid votes were polled, respondent secured 33,614 and was, thus, declared elected. The petitioner has alleged that rejection of his nomination papers by the Returning Officer is illegal in the eyes of law and the said order is liable to be set aside. The Returning Officer rejected his nomination Papers primarily on the ground that Section 33 of the Act as has been amended in 1997, the nomination of the candidate at the election to State Legislative Assembly is required to be subscribed by one elector of the Constituency if the candidate has been set up either by a recognised National Party or by a Recognised Party of the State or States in which it is recognised as a State Party, 10 electors of the Constituency in the case of an independent candidate or unrecognised political party. The Returning Officer also held that the politifical parties were to intimate the names of the candidates set up by them upto 3.00 p.m. on the last date of scrutiny of the nomination papers. Referring to amendment made in para 13 of the said Election Symbol Orders, the Returning Officer did not accept the nomination Papers and wrongly held that he cannot give further time to change such authorisation after scrutiny. The petitioner averred that para 13 of the Election Symbol Orders, 1968, prior to 1996 amendment provided that a candidate set up by the Political Party to present symbol authorisation by 3.00 p.m. on the date of withdrawal, but after the amendment of 1996 para 13 requires that such authorisation was to be delivered till 3.00 p.m. on the date of scrutiny of the nomination Papers. The petitioner alleged that the said para 13 only deals with the party''s authorisation. It does not deal with the situation where two candidates have the party authorisation and have filed the nomination Papers and as such, such a situation is dealt with in para 17.11 of the instructions issued by the Election Commission of India, which are as under :

"17.11 : Political parties, however, permitted to either cancel the authorisation in Form ''B'' given in favour of one candidate or change such authorisation by substituting the name of their candidate subject to the following conditions, namely :

subsequent authorisation cancelling or substituting the earlier authorisation in Form ''B'' is received by the Chief Electoral Officer and the Returning Officer of the Constituency concerned not later than 3.00 p.m. on the last date for withdrawal of candidatures."

Under Section 36(5) of the Act, the Returning Officer should have accepted the request of the petitioner and should have given him 24 hours time to meet the objection raised by him suo motu. By not granting him time, the Returning Officer has violated the provisions of the Act as well as principles of natural justice; therefore, orders passed by the Returning Officer rejecting the nomination papers of the petitioner and other two persons are illegal and impugned orders are liable to be set aside. Petitioner has also alleged that there is no bar for recognised political party to launch more than one candidate in a constituency. The Returning Officer should not have rejected the nomination papers on the date of scrutiny. It could be that one of the two candidates would have withdrawn on the date of the withdrawal and in any case the petitioner would have remained the only candidate to contest the election on the Bhartiya Janta Party ticket. Every political party is allowed to put a candidate for the elections and in case of confusion, it was incumbent upon the Returning Officer to have clarified as to who is the official candidate. The Returning Officer has denied that right to Bhartiya Janta Party to put up its candidate for the said election.

The petitioner has also alleged that the impugned order has been passed by the Returning Officer because of the mala fide considerations and under undue influence of the Congress party. Therefore, the nomination Papers of petitioner, Sarvshri Vir Abhimanyu and Sunil Kumar were illegally rejected by the Returning Officer.

The petitioner has also averred that under subsection (2) of Section 36 of the Act, the nomination Papers can only be rejected if the candidate or the other two persons were not qualified to be elected, or these was a failure to comply with any of the provisions of Section 33 or 34 of the Act or that the signatures of the candidate or the proposer on the nomination papers were not genuine. In his case, there was no question of any violation or non compliance with the provisions of Section 33 or 34 of the Act. The provisions of Sections 33 or 34 of the Act were duly complied with by him as well as by Sarvshri Vir Abhimanyu and Harish Kumar. Section 34 or any other law for the time being in force does not lay down that if more than one person files his nomination Papers complete in all respects claiming to be sponsored by a particular political party then the nomination Papers of all the candidates would be automatically rejected. Thus, the Returning Officer acted in gross violation of provisions of Section 36 of the Act by rejecting all the aforementioned nomination papers submitted by the petitioner, Sarvshri Vir Abhimanyu and Harish Kumar.

It is also averred that if two persons file their nomination papers claiming to be the official candidates of a political party, the only option that is left with the Returning Officer is to accept at the most either of the two. Since the petitioner''s nomination papers were delivered first in sequence of time, therefore, the second nomination Papers should not have been accepted even if valid authorisation was in favour of Shri Vir Abhimanyu unless the second authorisation cancelled the authorisation in favour of the petitioner or even the Returning Officer could have said that since the authorisation is in favour of another candidate, he is ignoring the first and accept the second, but he could not have rejected the nomination Papers of both the candidates on the ground that more than one authorisation had come. Section 36(4) as amended mandates that the Returning Officer shall not reject any nomination Paper on the ground of any defect, which is not of substantial character. In the petitioner''s case as there was no confusion/defect of substantial character, the nomination Papers of three persons could not have been rejected. The petitioner sought only 24 hours time under Section 36(5) to seek clarification from the President of Bhartiya Janta Party as to who is the official candidate sponsored by the said party. The Returning Officer declined to grant time and thus failed to exercise jurisdiction vested in him.

Petitioner has also pleaded that a circular was issued by the Principal Secretary of the Election Commission of India, New Delhi to the Chief Electoral Officers of all the States and Union Territories vide letter No. 576/3/96JUDL.II dated 20.9.1996. In para 3 of the Circular (Annexure P 6), it has been categorically clarified that in case nomination papers of the main candidate of the political party are rejected, the substitute candidate shall be treated as having been duly set up by the said party and allotted party''s reserved symbol. Even if the nomination Papers of Shri Vir Abhimanyu were rejected, nomination Papers of the covering candidate Shri Harish Kumar could not have been rejected. Thus, not only the right of the petitioner and of Sarvshri Vir Abhimanyu and Harish Kumar to contest the election has been taken away, but even the Bhartiya Janta Party has been denied its right to put up its candidate which has materially affected the result of the election. Thus, the petitioner has prayed that the impugned orders passed by the Returning Officer be set aside; election of the respondent be declared void and an order for holding the election afresh be passed in the interest of justice.

Respondent in his reply raised preliminary objections that the Returning Officer has rightly rejected the nomination Papers of the petitioner as well as of Sarvshri Vir Abhimanyu and Harish Kumar vide impugned orders (Annexures P3, P4 and P5) as Bhartiya Janta Party had sponsored two approved candidates, namely, Sarvshri Sunil Kumar and Vir Abhimanyu and before prescribed time of filing nomination Papers as required under Section 33(1) of the Act, authorisation of one candidate was not withdrawn by the President of Bhartiya Janta Party Shri L.K. Advani and therefore there was no proper and valid authorisation on behalf of Bhartiya Janta Party and nomination Papers of the petitioner and Sarvshri Vir Abhimanyu and Harish Kumar were not filed complying with the mandatory provisions of Section 33(1) of the Act. Under Section 33 of the Act, a candidate is required to file nomination papers duly complete in prescribed form within prescribed time, i.e., by 3.00 p.m. on the date of nomination. The nomination Papers filed by the petitioner, Sarvshri Vir Abhimanyu and Harish Kumar were rightly treated as that of independent candidates and as they were not proposed by 10 voters as required under Section 33(1) of the Act, their nomination Papers were rightly and legally rejected by the Returning Officer. Hence, the election petition does not disclose any cause of action justifying the trial of the election petition and being not maintainable is liable to be dismissed. It is also objected that the allegations made in paras 15, 18 and 20 of the Election Petition are vague. Election petition lacks material facts especially in para 8 particulars of fax message have not mentioned as to at what time and date, fax message was shown to the Returning Officer; hence, all these allegations are liable to be struck off under Order 6 Rule 16, Civil Procedure Code.

On merits, the respondent contended that the petitioner filed nomination Papers as Bhartiya Janta Party candidate; Shri Vir Abhimanyu also filed nomination Papers as a Bhartiya Janta Party candidate and Shri Harish Kumar filed nomination Papers as a substitute candidate of Bhartiya Janta Party. All these three candidates filed their nomination Papers on 20.1.1997. Respondent filed nomination Papers on behalf of Indian National Congress. Petitioner filed his nomination Papers on 20.1.1997 along with authorisation in Form ''A'' signed by Shri L.K. Advani, President, Bhartiya Janta Party and Form ''B'' signed by Shri Balramji Dass Tandon, President of Punjab State Bhartiya Janta Party mentioning the name of the petitioner as an approved candidate. These forms were filed as required under Para 13(b)(c) and (d) of the said Election Symbols Orders. It is denied that the nomination Papers of the petitioner were complete in all respects. Shri Vir Abhimanyu also filed his nomination Papers on 20.1.1997 along with authorisation in Form ''A'' signed by Shri L.K. Advani and form ''B'' signed by Shri Balramji Dass Tandon, President of Punjab State Bhartiya Janta Party and the name of the substitute candidate was mentioned as Harish Kumar. Shri Harish Kumar also filed his nomination Paper in form ''B'' on 20.1.1997. Copies of all these nomination Papers and authorisation Forms ''A'' and ''B'' are produced at Annexures R1 to R7 respectively. It is admitted that the Returning Officer Shri Daljit Singh rejected the petitioner''s nomination Papers on the ground that two different nomination Papers in favour of Sarvshri Sunil Kumar and Vir Abhimanyu, both from Bhartiya Janta Party were received along with forms ''A'' and ''B'' duly signed by Shri L.K. Advani, President, Bhartiya Janta Party and Shri Balramji Dass Tandon, President of Punjab State Bhartiya Janta Party respectively. He also passed a detailed order separately on 21.1.1997. For want of knowledge, it is denied that the petitioner made a representation on 21.1.1997 (Copy Annexure R1) and sought time from the Returning Officer. It is denied that the Returning Officer suo motu raised an objection as alleged. The respondent pleaded that provisio to Section 36(5) is not relevant as nomination Papers of the petitioner were rejected for noncompliance of Section 33 as amended by Act No. 21 of 1996. He reproduced amended Sections 33 and 36 of the Act and averred that from the language of Sections 36(1) and 36(2)(b), it is clear that the nomination Papers are to be delivered within time and in the manner laid down in Section 33 of the Act. Having regard to the changes made in the Act, the Election Commission of India has revised the nomination Papers prescribed as forms 2(A) and 2(B) appended to the Conduct of Election Rules, 1961. From all these forms ''A'' and ''B'' prescribed by the Election Commission of India in para 13 of the said Election Symbol Order, it is clear that the political parties must give formal intimation in regard to the candidates set up by them to the Returning Officer not later than 3.00 p.m. on the last date for making nominations. He also produced Section 13 of the Election Symbols Orders and annexed the said forms ''A'' and ''B'' as Annexures R8 and R9. Notes at bottom of Forms ''A'' and ''B'' are reproduced in the reply.

The respondent averred that from NoteI, it is clear that Forms ''A'' and ''B'' are to be delivered not later than 3.00 p.m. to the Returning Officer in the Constituency. According to Note (3) Forms ''A'' and ''B'' transmitted by fax shall not be accepted. This aspect has also been clarified by the Election Commission by its notification dated 9.8.1996 (copy Annexure R10). Amendment came into force w.e.f. 1.8.1996. Its copy is Annexure R11. Notification dated 5.8.1996 issued by the Election Commission of India amending para 13 of the Election Symbols Order is also annexed as Annexure R 12. Alleging these facts, respondent pleaded that the Returning Officer rejected all these three nomination Papers as Bhartiya Janta Party had sponsored two candidates, namely, the petitioner and Sarvshri Vir Abhmanyu. Authorisation of Shri Vir Abhimanyu was not cancelled before 21.1.1997. The Returning Officer had already rejected the nomination Papers of the petitioner vide order dated 21.1.1997 (Annexure P3) before receipt of any fax message alleged to have been sent by Shri L.K. Advani. It is also objected that the fax message cannot be relied upon in view of the Note appended in both the Forms ''A'' and ''B'' which are to be delivered before or by 3.00 p.m. on the date of filing of the nomination Papers.

Respondent has also pleaded that the Returning Officer has rightly and legally complied with the Provisions of Section 13 of the said Election Symbols Order and as the Returning Officer rightly exercised his jurisdiction under Section 33 of the Act, there is no violation of principles of natural justice. Proviso to Section 36(5) of the Act is not relevant as the petitioner has not delivered nomination Papers within the prescribed time and has not complied with the mandatory provisions of para 18 of the said Election Symbols Order. It is also denied that it was incumbent upon the Returning Officer to accept the request of the petitioner and to grant him 24 hours'' time to meet the objection. Since there was noncompliance of provisions of Sections 33, 34 and 36 of the Act, the Returning Officer has rightly rejected the nomination Papers of the petitioner and of Sarvshri Vir Abhimanyu and Harish Kumar. The allegations of mala fide and of influence to which the Returning Officer has succumbed are also denied as well as challenged on the ground of vagueness.

On the pleadings of the parties, the following issued are framed :

Whether the order of rejection of nomination Papers filed by the petitioner Sunil Kumar was illegal and improper, if so, its effect ? OPP

Whether the order of rejection of nomination Paper filed by Shri Vir Abhimanyu was illegal and improper, if so, its effect ? OPP

Whether the order of rejection of nomination Paper filed by Shri Harish Kumar was illegal and improper, if so, its effect ? OPP

Relief.

On the request of the parties, record of the Returning Officer including the nomination Papers of the candidates was summoned from the District Election Commission, Ludhiana. After receipt of the record, both the parties argued the points in controversy. As considering the issues, Parties submitted that no evidence is required to be adduced.

Issues 1, 2 and 3

Since all these three issues are interconnected, for convenience sake they are taken up together.

Petitioner''s learned counsel valiantly argued that the Returning Officer received the nomination Papers filed by the Petitioner on 20.1.1997 at 12.10 p.m. and it was registered at Serial No. 8. The nomination Papers of Vir Abhimanyu were received on this very date at 12.50 p.m. and were registered at Serial No. 10, while the nomination Papers of Harish Kumar were received on this very date at 1.10 p.m. As per the instructions, Chapter VI of Scrutiny Rule 4 page 62 of the Handbook for Returning Officers, Election Commission of India, 1992 (Reprint1996), the Returning Officer should take up nomination Papers one after another and scrutinise them. Petitioner''s learned counsel argued that as per this instruction, the Returning Officer was required to, first of all, scrutinise the nomination Papers of the petitioner. No defect, what to talk of substantial in nature, was found in the nomination Papers submitted by the petitioner. In his attempt to reject all the nomination Papers, the Returning Officer wrongly scrutinised the nomination Papers submitted by the petitioner as well as by Vir Abhimanyu and suo motu raised an objection that since the Bhartiya Janta Party has set up two candidates and has not withdrawn the candidature of either of them, both are invalid as at the best they can be treated as nomination Papers of independent candidates and as they are not sponsored by 10 proposers; the nomination Papers are invalid and thus, bue proceeded to reject both the nomination Papers.

Petitioner''s learned counsel also argued with all vehemence at his command that the Returning Officer has not only rejected the nomination Papers of the Petitioner as well as of Vir Abhimanyu on the same ground, but he also rejected the nomination Papers of Harish Kumar on the same ground.

His second contention is that any Political Party can set up more than one candidate; any political party has right to withdraw the candidature of any candidate till the time of withdrawal. After the amendment effected in the Act as well as in the Election Symbols Rule, the political parties are mandated to withdraw the candidature of any candidate, if they have set up more than one candidate, till 3.00 p.m. on the date of scrutiny on 21.1.1997. When the Returning Officer was scrutinising the nomination Papers of the petitioner, he found that another candidate Shri Vir Abhimanyu is also set up by the Bhartiya Janta Party; therefore, suo motu when he raised that objection, the petitioner asked for 24 hours'' time to rectify that defect and to get clarification from the President of Bhartiya Janta Party as to who is the candidate set up by the party. He also submitted that the petitioner also received a fax message from Shri L.K. Advani, President Bhartiya Janta Party that the petitioner is the candidate set up by the Bhartiya Janta Party, but the Returning Officer without following the mandatory provisions of the Act proceeded to reject the nomination papers filed by the petitioner as well as by Sarvshri Vir Abhimanyu and Harish Kumar. He pointed out that under Section 36(5) of the Act when any such defect is pointed out, the Returning Officer is duty bound to give 24 hours'' time to the candidate to get clarification or to remove the defect. The intention of this provision is that if any objection is raised either by the Returning Officer or by the other candidates with regard to any nomination Paper, which cannot be clarified or removed at that very time of Scrutiny and then if such a request is made by the candidate, the Returning Officer should give him 24 hours time to clarify/rectify the defect. In this case, the Returning Officer declined to give such a time to the petitioner; hence, the rejection order of the petitioner''s nomination Papers is illegal and is liable to be set aside on this ground.

He also submitted that if the Returning Officer would have followed the correct procedure, he should have accepted the nomination Papers of the petitioner as he was duty bound to, first of all, scrutinise the nomination Papers of the petitioner without looking into the nomination Papers submitted by Shri Vir Abhimanyu as the nomination Papers of the petitioner was to be considered at Serial No. 8. If he would have adopted this course of scrutiny, there was no reason for the Returning Officer to reject the petitioner''s nomination Papers.

Petitioner''s learned counsel in the alternative argued that after rejecting the petitioner''s nomination Papers, the Returning Officer had no valid/legal reason to reject the nomination Papers of Shri Vir Abhimanyu because after rejecting the nomination Papers of Shri Sunil Kumar, the nomination Papers of Shri Vir Abhimanyu remained for consideration, who was set up by the Bhartiya Janta Party. In his nomination Papers also, there was no defect much less any substantial one on no other count the nomination Papers of either Sunil Kumar or of Vir Abhimanyu could have been rejected by the Returning Officer as they fully complied with the provisions of Sections 33 and 34 of the Act; therefore, while considering the nomination Papers of Shri Vir Abhimanyu, the Returning Officer ought to have accepted his nomination Papers. On that very ground, the learned counsel argued that after rejecting the nomination Papers of Shri Vir Abhimanyu, the Returning Officer had no valid reason to reject the nomination Papers of the substitute candidate Shri Harish Kumar, but in his zeal to reject all the nomination Papers of the candidates/substitute candidate set up by the Bhartiya Janta Party, the Returning Officer rejected all the three nomination Papers. To support his contention, the learned counsel has relied on Parmeshwar Kumar v. Lahtan Chaudhary, AIR 1959 Patna 85; Ram Kishun Singh and another v. Tribeni Prasad Singh and another, AIR 1959 Patna 356; Dahu Sao v. Ranglal Chaudhary and others, AIR 1960 Patna 371, Mathura Prasad v. Ajeem Khan, AIR 1990 Supreme Court 2274, and Bhogendra Jha v. Manoj Kumar Jha, 1996(3) RCR(Civil) 311.

Respondent''s learned counsel argued with all vehemence at his command that as there was no proper authorisation by the Bhartiya Janta Party of any candidate by the relevant time, i.e., 20.1.1997 by 3.00 p.m. the Returning Officer has rightly rejected the nomination Papers of the petitioner as well as of Shri Vir Abhimanyu. By notification dated 1.8.1996 time for filing nomination Papers has been reduced from 20 days to 14 days. Keeping in view the amendment made in Section 33(1) of the Act in 1996 by amending Act 21 of 1996, necessary amendments were made in para 13 of the Election Symbols Order and it lays down that as to when a candidate shall be deemed to be set up by a political party, including the recognised National and State Parties at an election in a parliamentary or Assembly Constituency. Paragraph 13(b) provides that a notice in writing to that effect has not later than 3.00 p.m. on the last day of making nomination of candidates been delivered to the Returning Officer of the Constituency, and the Chief Electoral Officer of the State. Its sub clause (d) provides that the name and specimen signature of such authorised person are communicated to the Returning Officer of the Constituency and to the Chief Electoral Officer of the State, not later than 3.00 p.m. on the last date for making nomination of candidates. Thus, the respondent''s learned counsel valiantly argued that on 21.1.1997 till 3.00 p.m., the Bhartiya Janta Party was duty bound to inform the Returning Officer as to who is the candidate set up by that party. Since by 3.00 p.m. Bhartiya Janta Party never intimated the Returning Officer or Chief Electroal Officer as to whether Sarvshri Sunil Kumar or Vir Abhimanyu is the candidate set up by Bhartiya Janta Party, the Returning Officer rightly rejected the nomination Papers of both these candidates.

Respondent''s learned counsel also assiduously argued that since this defect was pointed out by the Returning Officer suo motu which was of substantial nature, the Returning Officer was under a legal duty to decide the objection on that very date while scrutinising the nomination Papers of Sarvshri Sunil Kumar, Vir Abhimanyu and Harish Kumar. There is no provision of law to give any time much less of 24 hours to any such candidate to rectify such a defect which is a substantial nature and which entails outright rejection of the nomination Papers. The petitioner cannot avail the benefit of provisions of Section 36(5) of the Act.

Respondent''s learned counsel also submitted that there is no material on record to state that any fax message was submitted before the Returning Officer. He also pointed out that as per amended Para 13 of the Election Symbols order, no authorisation can be conveyed to the Returning Officer by any political party through fax. Hence, filing of the said representation by the petitioner before the Returning Officer or the arguments advanced on the basis of the fax message is beyond the domain of consideration in this election petition.

He further submitted that as there was statutory violation of the provisions of the Act as well as of the Election Symbols Order, the nomination Papers were required to be rejected straightaway. To support this contention, he has relied on Ch. Kartar Singh Ex. Finance Minister, Haryana v. Shri Hari Singh Nalwa, Election Petition No. 17 of 1991 decided on 7.1.1992. He also submitted that Shri Harish Kumar was a substitute candidate for Shri Vir Abhimanyu. Since there was no approved candidate set up by the Bhartiya Janta Party, the Returning Officer was well within his right not to consider the substitute also on that ground. Hence, relying on Ram Dayal v. Brijraj Singh and others, AIR 1970 Supreme Court 110; Dharam Singh Rathi v. Hari Singh, AIR 1975 Supreme Court 1274; Brij Mohan v. Sat Pal, AIR 1985 Supreme Court 847; Brijendarlal Gupta v. Jwalaprasad & others, 1960 Supreme Court 1049; Mathura Prasad v. Ajeem Khan, AIR 1990 Supreme Court 2274 and Bhogendra Jha v. Manoj Kumar Jha, AIR 1996 Supreme Court 2099, he submitted that the Returning Officer has rightly rejected the nomination papers of petitioner, Sarvshri Vir Abhimanyu and Harish Kumar; hence, election petition is liable to be dismissed.

Both the learned counsel have relied on various judicial pronouncements which will be dealt within the later part of the judgment.

Before alluding to the rival contentions raised in the election petition, reproduction of the relevant provisions of the Act as well as of the Election Symbols Order are reproduced for the sake of convenience :

"33 : Presentation of nomination paper and requirements for a valid nomination.

(i) 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 from 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 of "ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers."

Section 34 of the Act deals with Deposits :

"(1) A candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited :

(a) in the case of an election from a Parliamentary constituency, a sum of five hundred rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of two hundred and fifty rupees; and

(b) in the case of an election from an Assembly or Council constituency, a sum of two hundred and fifty rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of one hundred and twenty five rupees;

Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this subsection.

(2) Any sum required to be deposited under Subsection (1) shall not be deemed to have been deposited under that subsection unless at the time of delivery of the nomination paper (under Subsection (1) or, as the case may be, subsection (1A) of Section 13) the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or a in a Government Treasury".

Section 36 of the Act deals with the scrutiny of the nominations which reads thus :

(1) On the date fixed for the scrutiny of the nominations under Section 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.

(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 objections 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) x x x x x x x x x

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

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine

(3) Nothing contained in clause (b) or clause (c) of Sub section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

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

(5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control.

Provided that in case (an objection is raised by the Returning Officer or is made by any other person) the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for the constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.

Rule 13 of the Election Symbols Order provides :

"13. When a candidate shall be deemed to be set up by a political party : For the purpose of this Order, a candidate shall be deemed to be set up by a political party if, and only if :

(a) the candidate has made a declaration to that effect in his nomination paper;

(b) a notice in writing to that effect has, not later than 3.00 p.m. on the last date for making nominations, been delivered to the Returning Officer of the Constituency and the Chief Electoral Officer of the State.

(c) the said notice is signed by the President, the Secretary or any other officebearer of the party and the President, Secretary or such other Officebearer is authorised by the party; and

(d) the name and specimen signature of such authorised person are communicated to the Returning Officer of the Constituency and to the Chief Electoral Officer of the State, not later than 3.00 p.m. on the last date for making nomination.

Notes 1, 2 and 3 to Form ''A'' at its bottom

"(1) This must be delivered to the Returning Officer and the Chief Electoral Officer not later than 3.00 p.m. on the last date for making nominations.

(2) Forms must be signed in ink by the officebearer(s) mentioned above. No facsimile signature or signature by means of rubber stamp, etc. of any officebearer shall be accepted.

(3) No form transmitted by fax shall be accepted."

Notes 1, 2, and 3 to Form ''B'' at its bottom

"(1) This must be delivered to the Returning Officer and the Chief Electoral Officer not later than 3.00 p.m. on the last date for making nominations.

(2) Forms must be signed in ink by the officerbearer(s) mentioned above. No facsimile signature or signature by means of rubber stamp, etc., of any officebearer shall be accepted.

(3) No form transmitted by fax shall be accepted."

Concededly, the petitioner filed his nomination papers along with Form ''A'' and Form ''B''. In Form ''2B'' Shri Ashwani Kumar has proposed the name of the petitioner Sunil Kumar as prescribed in the form. It is duly signed by the petitioner. It is also mentioned therein that the petitioner is set up at this election by the Bhartiya Janta Party which is recognised National Party in this State and the symbol reserved for the above party be allotted to him. Petitioner''s this nomination paper was delivered in the office of the Returning Officer at 12.10 p.m. on 20.1.1997. Form ''A'' attached with the nomination papers of the petitioner was signed by Shri L.K. Advani, President, Bhartiya Janta Party. In pursuance of Rule 13(c) and (d) of the said Election Symbols Order, he authorised Shri Balramji Dass Tandon, President, Punjab State Bhartiya Janta Party to intimate the names of the candidates proposed to be set up by Bhartiya Janta Party at election of 57 North Ludhiana Assembly Constituency for 1997 Punjab Legislative Assembly. From the perusal of Form ''B'' it is evident that petitioner''s name was set up as a party candidate for the said election and this form is duly signed by Shri Balramji Dass Tandon.

The nomination papers of Shri Vir Abhimanyu was also submitted with identical forms ''2A and ''B'', Form ''A'' was duly signed by Shri L.K. Advani, President Bhartiya Janta Party. Form ''B'' was duly signed by Shri Balramji Dass Tandon, President, Punjab State Bhartiya Janta Party. This nomination paper of Shri Vir Abhimanyu was received by the Returning Officer on 20.1.1997 at 12.50 p.m. While rejecting both these nomination papers, the Returning Officer passed a small order, which runs as under :

"The nomination papers of Shri Sunil Kumar are rejected on the following ground :

Two different nomination papers in favour of, namely, Shri Sunil Kumar and Shri Vir Abhimanyu both from the Bhartiya Janta Party were received along with Form ''A'' and Form ''B'' duly signed by Shri L.K. Advani, President, Bhartiya Janta Party and Shri Balramji Dass Tandon, President, Bhartiya Janta Party Punjab, respectively"

A detailed order was passed separately.

In the detailed order, Annexure P3, the Returning Officer has held that the petitioner''s nomination paper was received on 20.1.1997 at 12.10 p.m. and was registered at Serial No. 8. The candidate brought Form ''A'' and Form ''B'' wherein it was mentioned by the President Shri Balramji Dass Tandon that Shri Sunil Kumar would be the main party candidate. However, another candidate Shri Vir Abhimanyu also filed Form ''A'' and Form ''B'' along with his application wherein it has been mentioned that he is the main candidate of Bhartiya Janta Party. He mentioned that on the date of scrutiny when it was noticed that the petitioner''s authorisation does not anywhere state that earlier authorisation has been cancelled, he sought an opportunity to withdraw the candidature before the last date of withdrawal and on that ground his candidature should not be rejected. This request was declined; conveyed to the parties before the last date of withdrawal. The Returning Officer held that in view of amended Section 33 of the Act nomination of the candidate to a State Legislative Assembly is to be subscribed by one elector of the Constituency if the candidate has been set up either by a recognised National Party or by a recognised Party in the State and by 10 electors of the Constituency as proposers if the candidate has been set up by an unregistered unrecognised political party or if he is an independent candidate. In this case last date for the party to make nomination in Forms ''A'' and ''B'' was 20.1.1997 upto 3.00 p.m. Therefore, under the amended law the nomination made by the party in Form ''A'' and Form ''B'' prescribed for this purpose by the Commission under para 13 of the Election Symbols Rule, 1968 also become part of scrutiny. The Returning Officer has to determine the validity of nomination order, keeping in view whether the candidate has been set up by the Political Party or not. He also observed that if the petitioner has been set up by the Political Party only one proposer is required, and if he has been an independent candidate then ten proposers are required. A political party has to decide before scrutiny of the nominations as to whom it is sponsoring. The party cannot be given further time to change such an authorisation after scrutiny. Hence, on this ground, the contention of the petitioner that the party be given time till the date of withdrawal was rejected and he proceeded to decide the matter forthwith. He scrutinised the nomination papers of Sarvshri Sunil Kumar and Vir Abhimanyu and held that since a party has submitted authorisation in respect of both these candidates as main candidates and no authorisation mentions the cancellation of the other authorisation, he arrived at the conclusion that the party has set up two main candidates which it cannot do. Therefore, as per law both the candidates have to be treated as independent candidates and as they are not sponsored by ten proposers, their nomination papers are liable to be rejected. On the identical grounds, the Returning Officer also rejected the nomination papers of Shri Vir Abhimanyu and the nomination paper of Shri Harish Kumar, which was received on 21.1.1997 at 1.10 p.m. and was registered at Serial No. 12 was also rejected by the Returning Officer holding that the Bhartiya Janta Party has set up two main candidates duly authorised by the President of Bhartiya Janta Party and President of Bhartiya Janta Party, Punjab, namely, Sarvshri Sunil Kumar and Vir Abhimanyu, both the candidates, have submitted Form ''A'' and Form ''B'' along with their nomination papers.

Thus, if Shri Vir Abhimanyu''s candidature is rejected, even then there are two candidates duly sponsored by a Single Party, i.e., Bhartiya Janta Party in the field, i.e., Sarvshri Harish Kumar and Sunil Kumar, but a recognised political party cannot set up more than one candidate as an approved candidate. In this case, there is one approved candidate and another is substitute candidate; hence, both the candidates are to be treated as independent candidates. As per amended Section 33 of the Act, the nomination of the candidate to the State Legislative Assembly shall be sponsored by ten electors of the Constituency as proposers if the candidate has been set up by an unregistered unrecognised political party or if he is an independent candidate. Since he is treated as an independent candidate and his candidature has not been sponsored by ten proposers, hence, it is invalid and is rejected.

The first point for consideration is what procedure should be followed by the Returning Officer while scrutinising the nomination papers ? The Election Commission of India issued Hand Book for Returning Officers in the year 1992. Its reprint of 1996 was submitted at the time of arguments. Chapter VI of this Hand Book deals with scrutiny of nomination by the Returning Officer. Its subclause (4) provides that all nomination papers are to be scrutinised. It directs that the Returning Officer should then take up nomination papers one after another and scrutinise them. It also provides, if more than one nomination paper have been presented by or on behalf of one candidate, the Returning Officer should take them up together and scrutinise them one after another. It also directs that each nomination paper is required to be scrutinised by the Returning Officer himself. Merely because one or more nomination papers of a candidate have been already found valid by him, it would not be correct or legal to pass over other nomination papers of that candidate without scrutiny.

Thus, under these instructions, it is evident that the Returning Officer is required to scrutinise nomination papers one after another. If Shri Daljit Singh, Returning Officer, would have clearly followed these instructions, he would have scrutinised the nomination papers of the petitioner first because it was received at 12.10 p.m. and was registered at Serial No. 8. If he would have scrutinised the nomination papers submitted by the petitioner along with Forms ''A'' and ''B'' decidedly, there was no defect what to talk of substantial defect in his nomination paper. The Returning Officer while adopting a wrong procedure, scrutinised the nomination papers submitted by Shri Vir Abhimanyu also along with nomination papers submitted by the petitioner. He suo motu raised an objection that as Bhartiya Janta Party has sponsored both these candidates, petitioner as well as Shri Vir Abhimanyu and has not withdrawn the candidature of either of the two before 3.00 p.m. on 21.1.1997; therefore, both the nomination papers cannot be treated as sponsored by Bhartiya Janta Party and therefore, resultantly, they are required to be treated as nomination papers submitted by independent candidates. Adopting that reasoning, he also held that since nomination papers of both these candidates are not sponsored by ten electors, they are liable to be rejected. Thus, it is apparent that the Returning Officer has adopted a wrong procedure of examining the nomination papers of two candidates simultaneously with an object to reject them both on the same ground. Accordingly, I hold that the Returning Officer adopted a wrong procedure of scrutinising the nomination papers of the petitioner as well as of Shri Vir Abhimanyu simultaneously, which is in utter violation of instructions contained in Sub Clause (4) of the Handbook for the Returning Officers issued by the Election Commission of India.

Instructions contained in Chapter VI of Handbook for Returning Officers issued by the Election Commission of India further provides in clause (7) that the scrutiny of nomination paper is a part of quasi judicial duty. In these instructions at page 63 clause (7), the Returning Officers are cautioned that while holding scrutiny of nomination papers, they are performing an important quasijudicial function; therefore, they should discharge this duty with complete judicial detachment and in accordance with highest judicial standards. It is further mentioned therein that the Returning Officer must not allow any personal or political predilections to interfere with the procedure that he follows or the decisions he takes in any case fairness, impartiality and equal dealing with all candidates are expected of Returning Officer by law. At this point of time, it is pertinent to mention that the petitioner''s learned counsel has not pressed his ground of mala fides or rejection of these nomination papers under pressure of any Political Party.

Now the next contentious issue is whether under Section 36(5) of the Act, 24 hours time should have been given by the Returning Officer when he raised such an objection that two candidates, namely, Shri Sunil Kumar as well as Shri Vir Abhimanyu are sponsored by the Bhartiya Janta Party and a clarification/rectification was required to be submitted by these candidates as to who is one candidate set up by Bhartiya Janta Party.

In the earlier part of the judgment, I have reproduced verbatim the provisions of Sections 33, 34 and 36 of the Act. Clause (4) of Section 36 provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Its clause (5) provides that the Returning Officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control. Provided that in case (an objection is raised by the Returning Officer or is made by any other person) the candidate concerned may be allowed time to rebut it not later than the next date but one following the date fixed for scrutiny, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned. Section 33 of the Act is amended in 1966. As per the amended provisions, the nomination of a candidate at the election to the State Legislative Assembly shall be required to be subscribed by one elector of the constituency as proposer, if the candidate has been set up either by a recognised National Party and 10 electors of the Constituency as proposers, if the candidate has been set up by an unregistered unrecognised political party or if he is an independent candidate. Consequently, the amendment is also made in the Election Symbols Order. Its para 13 now provides that for the purpose of this, a candidate shall be deemed to be set up by a Political Party, and only if a candidate has made declaration to that effect in his nomination paper (b) a notice in writing to that effect has, not later than 3.00 p.m. on the last date of withdrawal of candidatures, been delivered to the Returning Officer of the Constituency and the Chief Electoral Officer of this State.

Respondent''s learned counsel has emphasised that on 21.1.1997 by 3.00 p.m. the Bhartiya Janta Party was legally bound to inform the Returning Officer and the Chief Electoral Officer of this State clarifying as to out of the two, who is the candidate set up by the said party. Since by 3.00 p.m. on 21.1.1997 no such clarification was submitted by the Bhartiya Janta Party before the Returning Officer, he had no other option, but to reject both the nomination papers submitted by the petitioner as well as by Shri Vir Abhimanyu on this ground alone.

So far as the authorities submitted by the learned counsel are concerned, they require a deep probe. In Ram Dayal''s case (supra), the Apex Court has considered the provisions of Sections 33 and 36 of the Act and has held that the requirement under Section 33(1) of the Act that nomination shall be signed by the candidate and by the proposer is mandatory. In that case nomination paper bearing thumb impression of proposer but not attested as required by law was filed on the last date of receiving nomination paper. It was held that the attestation is not a mere technical or unsubstantial requirement within the meaning of section 36(4) of the Act and cannot be dispensed with. The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been. The Apex Court held that if the nomination paper bearing the thumb mark of the proposer is not attested as required by law when it was filed on the last date for nomination it has to be rejected at the time of scrutiny.

In Dharam Singh Rathi''s case (supra) while considering the provisions of Sections 33(1) and (4) of the Act, the Apex Court held :

"Generally speaking the kinds of defects mentioned in the proviso to Section 33(4) would not be of a substantial character so as to justify the rejection of a nomination paper. There may, however, even amongst those types of defects be some such that necessitate their rectification and if not rectified that may make the nomination paper liable to be rejected. But the defect of nonsupply of postal address is not covered by the proviso. It is a defect which falls for consideration at the time of the scrutiny of the nomination paper. If the defect is substantial one then the nomination paper has got to be rejected. Subsection (4) of Section 36 enjoins the Returning Officer not to reject any nomination paper on the ground of any defect which is not of a substantial character. But if it is of a substantial character then subsection (2) provides that the Returning Officer shall reject the nomination paper when "there has been a failure to comply with any of the provisions of Section 33 or Section 34."

In Brijenderlal Gupta''s case (supra), the provisions of section 36(2) and (4) of the Act were again considered by the Apex Court and it is held that "the omission to specify the age of a candidate for election in the nomination paper is a ''defect'' within the meaning of Section 36(4). Having regard to the context the word ''defect'' in Section 36(4) cannot exclude all cases of omission to specify the details prescribed by statute in the nomination paper, then the age of the candidate is not specified in the nomination paper. The Returning Officer is not bound to hold an enquiry under Section 36(2)(a) as such a case falls under Section 36(2)(b) as there is noncompliance with Section 33 which justifies rejection of nomination paper provided defect is of a substantial character. The Apex Court has clearly observed that "non compliance with the provisions of Section 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the noncompliance in question is of a substantial character."

In Brij Mohan''s case (supra), the Apex Court again considered as to what is defect of a substantial character in a nomination paper and what test should be applied to determine it. In that case para No. of voters list was given in nomination paper of a candidate. On that ground, rejection of nomination paper was held not improper.

The Apex Court has further held thus :

"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 or 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 PW2 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 then that the nomination paper was in order. This Court has held 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 PW 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."

In Mathura Prasad''s case (supra) the Apex Court has held that :

"It depends on the facts and circumstances of each case to find as to what mistake in a nomination paper can be considered a mistake of substantial nature. The Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascertained by him on the material made available to him. He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect. However, in case neither the candidate nor his representative be present and without removing such defect in the nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the material placed before him and to remove such defect himself. To cast an obligation on the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law."

It is further observed that :

"where the candidate was not identified as per electoral roll and neither the candidate nor any representative on his behalf were ready to assist the Returning Officer in curing the defect and in proving the correct identity of candidate and in fact they did not remain present when the nomination paper was taken up for scrutiny it cannot be said that the Returning Officer committed any error in rejecting the nomination paper of the candidate."

In Bhogendra Jha''s case (supra) the Apex Court has held that the Returning Officer is not expected to make roving enquiry to find out whether names of proposer found place in electoral roll. It is the duty of the candidate/proposer to satisfy the Returning Officer. Thus, it is apparent from all these authorities that the objection raised in this case was not the objection raised in all the above cases.

Petitioner''s learned counsel''s reliance on Parmeshwar Kumar''s case (supra), Ram Kishun Singh''s case (supra), Dahu Suo''s case (supra), and Bhogendra Jha''s case (supra) is apposite.

In Parmeshwar Kumar''s case (supra), a Division Bench of Patna High Court has held as under :

"Under proviso to Section 36(5) the Returning Officer could have allowed time to the candidate concerned to rebut the objections raised by or on behalf of the respondent to the nominations of the petitioner even though time was not asked for, as, nobody was present on behalf of the petitioner at the time of the scrutiny and at the time the objections were raised. Where objections are raised to any nomination paper which requires an investigation or a summary enquiry of certain facts, it would be proper for the Returning Officer to adjourn the hearing of the objections for some time or for a day. The matter, of course, would be different if any nomination, on the face of it is invalid for violation of any statutory provisions of the Act or the rules framed thereunder."

Another Division Bench of Patna High Court in Ramkishun Singh''s case (supra), considered the provisions of Section 36 of the Act and exercise of discretion under Subsection (2) and proviso to subsection (5) of Section 36 and has held as under :

"Under Subsection (2) the Returning Officer has power to hold a summary enquiry before rejecting any nomination paper on the basis of any objection or on his own motion. Under proviso to subsection (5) he may allow time to the candidate concerned to rebut the objection by a day "not later than the next day but one following the date fixed for scrutiny." The Returning Officer must exercise the discretion vested in him by the section in a proper manner so that no one is prejudiced by his order. He cannot act arbitrarily. Unless a nomination paper is invalid on the face of it and no rebuttal of the objection can be reasonably excepted he ought to give time to rebut it."

In Dahu Sao''s case (supra), the Division Bench of Patna High Court considered the provisions of Section 36(4) and 36(5) proviso and held as under :

"The stand taken on behalf of appellant before the Returning Officer was that the name of the constituency ''Bihar'' had been properly filled up in the second blank space in the first line meant to be filled up by the proposer. This stand was reiterated before the Tribunal and some mistakes of hyphen being there or not being there in the form supplied by the office of the Returning Officer were pointed out in support of the stand. But, in my opinion that has rightly been not accepted either by the Returning Officer or by the learned Member of the Tribunal."

"It is clear to me that the proper name to be filled up in the second blank space was ''Dhanbad'' and the name ''Bihar'' was wrongly mentioned because of the fact that immediately after the blank space the words ''Vidhan Sabha'' are there and also because in the head line the word ''Dhanbad'' had been written. But the question, which was mooted out before the Tribunal and before us, is as to whether this is a defect of a substantial character as Section 36(4) of the Act provides"

"The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character :" In my opinion, the head line sufficiently and clearly indicated that the nomination was for ''Dhanbad'' Nirbachan Kshetra and it was a byelection only for Dhanbad Constituency. That being so, the mistake in the first line below the head line ought to have been ignored as a bona fide mistake of an unsubstantial character. The learned Member of the Tribunal has laid stress on the fact that it has come in evidence that the name ''Dhanbad'' in the head line was filled up by the candidate himself and so far as the proposer is concerned, he had put the name ''Bihar''. In my opinion, that is of no consequence in this case."

"The evidence is also there on the record that at the time of scrutiny all concerned on behalf of the appellant claimed that these nomination papers were for the Dhanbad Constituency which was clearly and distinctly mentioned in the head line. That being so, I have no difficulty in holding that the nominations of the appellant were improperly rejected on the ground stated in the orders of the Returning Officer."

Their Lordships have further observed that when any objection is raised in respect of nomination paper, the Returning Officer has jurisdiction to postpone his decision as to validity of nomination to the day following the scrutiny even though the candidate concerned had not asked for any time to rebut the objection raised. They have relied on AIR 1959 Patna 85.

Petitioner''s learned counsel has also relied on the decision of the Apex Court in Mathura Prasad''s case (supra) and Bhogendra Jha''s case (supra). He pointed out that in Mathura Prasad''s case (supra), the Apex Court has held that "the Returning Officer should not reject a nomination paper merely on a mistake of technical or formal nature, where the identity of the candidate can be ascertained by him on the material made available to him. He should also give an opportunity to the candidate or his representative present at the time of scrutiny to remove the defect. However, in case neither the candidate nor his representative be present and without removing such defect in the nomination paper the identity of the candidate cannot be ascertained, then there is no statutory duty cast on the Returning Officer to make a roving enquiry by going through the material placed before him and to remove such defect himself."

In Bhogendra Jha''s case (supra), the Apex Court has clearly held in para 7, that :

"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 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.

In this case as it is apparent, if the Returning Officer would have scrutinised the nomination papers alongwith Forms ''A'' and ''B'' submitted by the petitioner at 12.10 p.m. on 21.1.1997, he was bound to accept the nomination papers as there was no defect much less any substantial one in the nomination papers submitted by the petitioner. No defect can be pointed out that the nomination paper was duly submitted complying with the mandatory provisions of Sections 33 and 34 of the Act.

But as the Returning Officer chose to scrutinise the nomination Papers submitted by the petitioner along with nomination papers submitted by Shri Vir Abhimanyu, he suo motu raised an objection that since the Bhartiya Janta Party has sponsored two candidates simultaneously and as per the amended provisions of Section 33 of the Act and Para 13 of the said Election Symbols Order, the Bhartiya Janta Party was required to inform the Returning Officer on 21.1.1997 by 3.00 p.m. as to who is the authorised candidate of Bhartiya Janta Party, this was not defect per se in nomination papers submitted either by the petitioner or by Shri Vir Abhimanyu. Neither the petitioner nor Shri Vir Abhimanyu might be knowing that another candidate has also been set up by Bhartiya Janta Party. When the Returning Officer suo motu raised such an objection, the petitioner sought an opportunity to get the said clarification from Shri L.K. Advani, President of Bhartiya Janta Party. He has also submitted a representation to that effect and prayed that 24 hours'' time be given to him to submit such a clarification.

No doubt, the petitioner has relied on a fax message received by him on 21.1.1997 whereby Shri L.K. Advani, President of the Bhartiya Janta Party, has clarified that the petitioner is the main sponsored candidate of Bhartiya Janta Party, but as there is no material on record to show that this fax message was received by the petitioner on 21.1.1997 or it was submitted before the Returning Officer on that very day. This argument is not sustainable, but as is evident from the judgment of Prameshwar Kumar''s Ram Kishan Singh''s; Dahu Sao''s; Brij Mohan''s; Mathura Prasad''s and Bhogendra Jha''s cases (supra), since a technical objection was raised by the Returning Officer suo motu, the petitioner was present before him, he sought time to get clarification from the President of Bhartiya Janta Party as to what is the candidate sponsored by that party, the Returning Officer was duty bound to give time to the petitioner to seek that clarification in order to rectify the defect pointed out by him in his nomination paper. Without considering the consequence of rejecting the nomination papers of petitioners as well as of Sarvshri Vir Abhimanyu and Harish Kumar in hot haste, the Returning Officer passed all the three impugned orders (Annexures P3, P4 and P5) and rejected the nomination papers of all these three candidates. If dispassionately he would have considered a defect pointed out by him in all fairness, equity and principles of natural justice, he ought to have given time to the petitioner to get clarification from the President of Bhartiya Janta Party to remove that defect if at all he could have removed it within 24 hours.

Thus, in my considered view, the Returning Officer fell into a grave error and failed to exercise his quasijudicial power under Section 36(5) of the Act by declining to give time to the petitioner to rectify the defect pointed out by him (Returning Officer) suo motu. Resultantly, it is also obvious that the Returning Officer also fell into a grave error in rejecting the nomination papers of petitioner, Sarvshri Vir Abhimanyu and Harish Kumar on the same ground and treating their nomination papers as filed by independent candidates and holding that since these candidates are not sponsored by ten proposers, the nomination papers are not validly filed under the provisions of Section 33 of the Act and thus liable to rejection.

Thus, I find that the order of rejection of nomination papers filed by the petitioner Sunil Kumar is illegal and improper. I also hold that the orders of rejection of nomination papers filed by Sarvshri Vir Abhimanyu and Harish Kumar are illegal and improper. Thus, all the three issues are decided in favour of the petitioner and against the respondent.

Issue No. 4

I have held above that the Returning Officer by adopting a wrong procedure has wrongly and illegally rejected the nomination papers submitted by Sarvshri Sunil Kumar, Vir Abhimanyu and Harish Kumar and the effect is that the election of 57, North Ludhiana Assembly Constituency to the Punjab Vidhan Sabha is liable to be set aside. Election petition is hereby allowed with no order as to costs and election of 57, North Ludhiana Assembly Constituency to the Punjab Vidhan Sabha held on 7.2.1997, the result of which was declared on 9.2.1997 is hereby set aside. It is also ordered that the Election Commission of India should hold the elections afresh for 57, North Ludhiana Assembly Constituency.

In view of Section 103 of the Act, authenticated copies of the decision be conveyed to the Speaker, Legislative Assembly, Punjab and Election Commission, New Delhi, forthwith by the Registry.