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TMI Blog2011 (12) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise of powers conferred under Section 5(2) of the 1951 Act issued a notification which was published in the official gazette on March 28, 2009. The 89 -Athagarh Assembly constituency is one of the 147 Assembly constituencies in the State of Orissa and is 'General' constituency. The Commission appointed the following schedule of election: 28.3.2009 To 04.04.2009 = Period prescribed for filing of 'Nominations' 06.04.2009 = date fixed for Scrutiny of 'Nominations' 08.04.2009 = last date for Withdrawal of 'Nominations' 23.04.2009 = date of Polling. 16.05.2009 = date of Counting of Votes. 28.05.2009 = date before which the Election shall be completed.' 3. On April 4, 2009, at 11.25 A.M., the Respondent in Civil Appeal No. 4962 of 2010 - Ranendra Pratap Swain (hereinafter referred to as 'proposed candidate') filed four sets of nomination papers for 89-Athagarh Assembly constituency as a candidate of Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds in challenging the order of the Returning Officer dated April 6, 2009 whereby the nomination papers of the proposed candidate were rejected. 8. The Appellant - (Respondent therein) - contested the election petitions by filing separate written statement. He raised objections about the maintainability of election petitions on facts and in law. Inter alia, it was denied that the proposed candidate filed original Form-A and Form-B signed in ink by the authorized person of BJD as at the time of scrutiny original Form A and Form B were not available and the Form A and Form B on record did not contain ink signature. 9. On the respective pleadings of the parties, the High Court initially framed four issues but later on framed additional issue No. 5. The relevant two issues, namely, issue No. 3 and issue No. 5 read as follows: 3. Whether the Returning Officer improperly rejected the nomination of the Election Petitioner in violation of the statutory provisions and rules? 5. Whether the Returning Officer improperly rejected the nomination of Sri Ranendra Pratap Swain, the official candidate of Biju Janata Dal in violation of the instructions issued by the Election Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of partiality on the part of any official involved in the election management. We shall refer to the relevant provisions of the handbook a little later. The handbook does not have statutory character and is in the nature of guidance to the Returning Officers. 16. By virtue of a notification dated February 10, 2009 (Exhibit 10) issued by the Commission, for the first time, the issuance of check list to a candidate filing nomination paper has been introduced. Prior thereto, there was no such provision. It is provided that in respect of each candidate, the Returning Officer should maintain, in duplicate, the check list of the documents/requirements filed by the candidates. When a candidate files nomination paper, the Returning Officer shall indicate in the second column of the check list whether the concerned documents have been filed or other requirements fulfilled. If any of the documents has not been filed, it requires the Returning Officer to clearly state in the bottom of the check list, indicating the time limit by which such document/s can be submitted. The check list in two sets with all requirements indicated is needed to be signed by the Returning Officer as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toral 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. xxx 18. Section 35 provides for notice of nominations and the time and place for their scrutiny. 19. The provision concerning scrutiny of nomination is made in Section 36 of the 1951 Act. To the extent it is relevant, it reads as follows: Section 36. Scrutiny of nomination.-(1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssent to his nomination. Clause (b)(i) is applicable to a candidate who has been set up by a recognised political party with a request that symbol reserved for such party be allotted to him. Clause (b)(ii), on the other hand is applicable to a candidate not set up by any registered recognised political party or a candidate who is contesting the election as an independent candidate. A recognised political party means a political party recognised by the Commission under the 1968 Order. 22. Rule 5 of the 1961 Rules makes a provision for symbols for elections in parliamentary and assembly constituencies. Rule 10 of 1961 Rules provides for preparation of list of contesting candidates. 23. In exercise of the powers conferred by Article 324 of the Constitution of India read with Section 29A of the 1951 Act and Rules 5 and 10 of the 1961 Rules, the Commission made Election Symbols (Reservation and Allotment) Order, 1968 (for short '1968 Order'). Unregistered political parties are out of its purview. The registered recognized and unrecognized political parties and independent candidates are dealt with by the 1968 Order. 1968 Order came to be amended by notification No. 56/2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalid. It states that brief reasons in support of the decision must be set out, particularly, where an objection has been raised or the nomination paper has been rejected. Para 7 provides for presumption of validity of every nomination paper unless the contrary is prima facie obvious or has been made out. In case of a reasonable doubt, as to the validity of a nomination paper, the benefit of such doubt must go to the candidate concerned and the nomination paper should be held to be valid. Para 7 seeks to remind the Returning Officer that whenever a candidate's nomination paper is improperly rejected and he is prevented from contesting the election, there is a legal presumption that the result of the election has been materially affected by such improper rejection and the election is liable to be set aside. Para 9.6 sets out some of the defects which may be treated by the Returning Officer as defects of substantial nature. It, inter alia, provides that failure to submit written authorisation form from the political party, within prescribed time and in prescribed form, where a candidate claims to have been set up by a national or state party, is a defect of substantial nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the proposed candidate contended that Section 36(4) of the 1951 Act read with proviso to Rule 4 of the 1961 Rules and Form 2 B (Part III) would make the filing of xerox copy of Form A and Form B permissible (assuming that xerox copy of Form A and Form B were filed only) and cannot form the basis of the rejection of the nomination paper. He submitted that failure to file original Form A and Form B signed in ink was not defect of a substantial character within the meaning of Section 36(4) of the 1951 Act. According to him, para 13 (e) of the 1968 Order that states 'Forms A and B are signed, in ink only, by the said office bearer or person authorised by the party' is only an expression of hope and is not mandatory as it does not use the expression 'shall be signed'. He referred to a decision of this Court in the case of Jagan Nath v. Jaswant Singh and Ors. 1954 SCR 892 in support of his submission that the election law is technical and unless express provision is found, one cannot read the word 'are' as 'shall'. With reference to Section 33(1) of the 1951 Act, Mr. Venugopal would submit that the expression 'a nomination paper completed in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected. 30. Section 33 of the 1951 Act enacts that a candidate shall file nomination paper on or before the appointed date in the prescribed form. The form in which nomination paper shall be presented and completed is provided in Rule 4 of the 1961 Rules. According to Rule 4, every nomination paper presented under sub-section (1) of Section 33 shall be completed in such one of the forms 2-A to 2-E, as may be appropriate. Proviso that follows Rule 4 provides that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not be deemed to be a defect of substantial character within the meaning of Section 36(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al character. Such deficiency in the nomination paper is saved by the proviso to Rule 4 of the Conduct of Elections Rules, 1961 which provides that failure to complete or defect in completing the declaration as to symbols in a nomination paper shall not be deemed to be a defect of a substantial character within the meaning of Sub-section (4) of Section 36. Choosing a wrong symbol, leaving blank the space meant for filling the choice of symbols and an error in describing the symbol - are all defects not of a substantial character. An independent candidate may mention as his preference the symbol reserved for a recognised political party, but that again will not be a defect of a substantial character. Dealing with such cases, this Court has held in K.S. Abdul Azeez v. Ramanathan Chettiar AIR 1967 SC 85 that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled, on this ground, during the interval. 31. The applicability of proviso that follows Rule 4, however, is limited to defect in the declaration as to symbol made by a candidate in Form 2-A or 2-B ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;only' is explained: Only adv. 1 and no one or nothing more besides... adj. alone of its or their kind; single or solitary... 35. In Webster Comprehensive Dictionary, International Edition (Volume Two), the word 'only' is defined thus: Only ( n'l') adv... 2 In one manner or for one purpose alone.... 4 Solely; merely; exclusively: limiting a statement to a single defined person, thing, or number. adj. 1 Alone in its class; having no fellow or mate; sole; single; solitary: 36. The word 'only' is ordinarily used as an exclusionary term. In the American case of Henry R. Towne v. Mark Eisner 245 US 418, the court said, 'A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used'. In ascertaining the meaning of the word 'only', its placement is material and so also the context in which the word has been used. The use of the word 'only' in Clause (e), para 13, 1968 Order emphasises that Forms A and B are to be signed in ink by the office bearer or person authorised by the recognised party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m clearly show that the parties were seriously in issue whether the original Form-A and Form-B duly signed in ink by the authorised person of BJD were filed by the proposed candidate with the first set of his nomination paper. The election Petitioners (in both election petitions) asserted that the proposed candidate had filed original Forms A and B duly signed in ink by Shri Navin Patnaik (authorised person of BJD) before the Returning Officer on April 4, 2009 at the time of presentation of nomination paper and check list was issued acknowledging receipt of these forms. The returned candidate disputed the said assertion made in the election petitions. The evidence of the Returning Officer, who was examined as court witness No. 1, and his cross-examination on behalf of the proposed candidate as well as the returned candidate also indicate that the factual controversy in the election petitions centered around on the filing of the original Form-A and Form-B duly signed in ink by the authorised person of BJD with the first set of his nomination. It follows that by framing issue No. 6 at the time of final decision of the election petitions, no prejudice has been caused to the returned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stated that had it come to his notice that Form-A and Form-B duly signed in ink by the authorised signatory were not filed by the proposed candidate, he would have made an endorsement on the bottom of the check list to that effect and asked the proposed candidate to file the original ink signed forms within time. He admitted that no such endorsement was made in the check list. The Returning Officer also stated in his deposition that the nomination papers filed by the proposed candidate were examined by him only from technical stand point and it was not his duty to examine the correctness or validity of the documents at the time of filing of the same. 44. Although there is voluminous documentary evidence, in our view, the three documents viz; the check list (Ex. 11), Form 3-A (Ex. 42/F) and the consolidated list of nominated candidates (Ex. 44) are important. The check list marked 'original' (Ex. 11) given to the proposed candidate is as follows: Sl. No. Documents Whether filed (write yes/no) 1. Affidavit in Form-26 yes 2. Affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inently, April 4, 2009 was the last day of nominations. Form 3A was displayed on the notice board after 3 p.m. Had the proposed candidate not filed Forms A and B as required, i.e., duly signed in ink by an authorised person of BJD, he would not have been shown as a nominee of that party in Form 3A. 47. On behalf of the returned candidate it was contended before the High Court and reiterated before us that none of these documents indicate that Forms A and B were filed in original. It was submitted that these documents only indicate that Forms A and B were filed as endorsed in the check list and were received before 3.00 p.m. on the last date of making nominations but these documents do not prove that original Forms A and B signed in ink by the authorised signatory of the party were filed. 48. It is true that neither in the check list nor in the list of nominated candidates, the word 'original' before Forms A and B is mentioned but it was not required to be mentioned as in the case of candidates set up by political parties; the requirement is that such candidates file Form A and Form B duly signed in ink by the authorised officer of the concerned political party. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form-A and Form-B signed in ink by the authorised person of the BJD. Rather he stated that had it come to his notice that the original Form-A and Form-B duly signed in ink were not filed along with the nomination paper by the proposed candidate, he would have made an endorsement to that effect in the check list. Moreover, between 11.46 a.m. when the check list was prepared by the Returning Officer and given to the candidate and 3.00 p.m. on April 4, 2009 (last date of nominations) no intimation was issued by the Returning Officer or received by the candidate with regard to non-filing of original Forms A and B. No doubt, the burden is on the candidate set up by a recognised political party to prove that he had filed Forms A and B duly signed in ink by the authorised person of that party but that burden gets discharged on production of evidence that raises presumption in his favour. In the present case the proposed candidate has been successful in discharging the burden placed upon him. 50. The evidence of the Returning Officer is the important part of the case. He admitted in his evidence that the xerox copies of the nomination papers and documents were got prepared through his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning Officer, when he found that original forms A and B were not available on record, was to make brief enquiry about non-availability of the forms A and B. It was all the more necessary as the nomination papers along with accompanying documents were sent for xeroxing. 52. Section 83 of the 1951 Act requires that an election petition shall contain a concise statement of the material facts on which the Petitioner relies. It has been repeatedly held by this Court that Section 83 is peremptory. In Samant N. Balakrishna, etc. v. George Fernandez and Ors. etc. AIR 1969 SC 1201, this Court observed in para 29 (Pg. 1212) of the Report thus: ...The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars' The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 56. In a recent decision in Nandiesha Reddy v. Kavitha Mahesh (2011) 7 SCC 721, this Court observed that where election Petitioner alleges improper rejection of his/her nomination paper by the Returning Officer, he/she must set out in election petition reasons given by the Returning Officer for refusal to accept nomination paper and facts necessary to show that refusal was improper. In paragraphs 36 and 37 of the Report (at Pg. 734), this Court held as under: 36. Section 83 (1)(a) inter alia provides that an election petition shall contain a concise statement of the material facts. Further, Section 87 of the Act provides that subject to the provisions of the Act and the Rules framed there under every election petition shall be tried in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Order VI of the Code of Civil Procedure is devoted to the pleadings generally and Rule 2(i) thereof, inter alia, provides that every pleading shall contain a statement in a concise form of all the material facts on which the party pleading relies for claim. In an election petition, which does not contain material facts, no relief can be granted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two sets of Form A B submitted in 87- BARAMBA, he came to conclusion that the set of Form A B, submitted by the Election Petitioner along with his first set of Nomination was not original and not signed in ink but a xerox copy, then in ordinary course of human conduct and in view of instruction of the Election Commission', he would have recorded an endorsement to that effect in the CHECK LIST which he himself gave at 11.45 AM on 04.04.2009, and would have further called upon the Election Petitioner to produce the same by 3 PM on the same day. (b) The Returning Officer instead of making a comparison with the Form A B submitted along with the Nominations of 87BARAMBA, should have referred to the Form A B, which was communicated both to him to the CEO under the provisions of Election Symbol (Reservation Allotment) Order - 1968. 5(D) That a plain reading of four Orders of rejection recorded by the Returning Officer on four sets of Nominations submitted by the Election Petitioner spells out so much so discrepancy that the same itself is sufficient to conclude that the order suffers from inconsistency and is an outcome of non application of mind. 5 (E) That on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and point, he found the election Petitioner, Sri Ranendra Pratap Swain to have filed all required documents and accordingly he issued the Check List marked Ext. 22 to him. He fairly admitted in his evidence that he can distinguish a xerox copy from its original. He further deposed that had it come to his notice that Sri Ranendra Pratap Swain filed the xerox copies of the original ink signed Form A and Form B, he would have endorsed it in the bottom of the Check List and directed him to file the original ones. Again on 04.04.2009 after the time fixed for filing the Nomination Papers was over, he prepared copy of those documents in Form 3A to publish in the notice board. At that time also he could not detect the filing of Xerox Copies of the original ink signed Form A and Form B. Furthermore, when he prepared the consolidated 'List of Nominated Candidates-Checks if'. He could not detect the so called defect. He mentioned the symbol 'Conch' in the appropriate column of the said form so also the name of political party, which set up the candidate, Sri Ranendra Pratap Swain. Since the signature of P.W. 1 the proposer of Ranendra Pratap Swain, partially got effected, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of the original ink signed Form-A and Form-B, he would have endorsed it in the bottom of the Check List and directed him to file the original ones. At this stage Mr. Palit, Learned Counsel for the Respondent submitted that unless, an election Petitioner fully established his case, it would not be proper to set aside the election. In support of his submission, he relied on the decision in the case of Ram Phal Kundu v. Kamal Sharma AIR 2004 SC. 1657, where the apex Court held as follows. Therefore, unless the election Petitioner fully established his case, it will not be legally correct to set aside the election of the Appellant. As found from the evidence of P. Ws. 1 and 2 the latter filed the original ink signed Form A and Form B in his 1st set of Nomination. This part of their evidence could not be shaken. Even no suggestion was given to P.W. 1 that P.W. 2 did not file original ink signed Form A and Form B in his 1st set of Nomination. So, the above decision is not applicable to the present case. The Returning Officer has admitted in his evidence that the Nominations along with all the accompanying documents of all the eight candidates were Xeroxed outside in Anand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in para 21 (Pg. 500) as under: 21... The use of the expression 'not later than the next day but one following the date fixed for scrutiny' under the proviso to Sub-section (5) of Section 36 of the Act un-mistakably shows that the Returning Officer has been vested with the discretion to fix time to enable a candidate to rebut an objection to the validity of his nomination paper and such a discretion has to be fairly and judicially exercised. The refusal to grant an opportunity to the Respondent and rejecting his nomination paper was clearly an arbitrary exercise of the discretion vested in the Returning Officer. The Returning Officer has also not given any cogent reasons for his refusal to grant an opportunity as prayed for by the Respondent. The Returning Officer appears to have been labouring under some misconception when he recorded that the political party 'cannot be given further time to change such authorisation after scrutiny'. Under the proviso to Section 36 (5) of the Act, the scrutiny itself would have been postponed to the adjourned time and, therefore, it was not a case of meeting the objection after scrutiny of the nomination papers. The failure to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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