JUDGMENT Sushil Harkauli, J.
1. This election petition has been filed by one of the candidates to the election held on 21st February 2002 for the membership of the U.P. Legislative Assembly.
2. The respondent is the returned candidate and his election has been challenged on the ground of wrong rejection of the nomination of a third prospective candidate namely, Sita Ram.
3. The ground is covered by Section 100(1)(c) of the Representation of the People Act, 1951. For ready reference the relevant part of the siaid provision is reproduced below:
100. Grounds for declaring election to be void.- (I) Subject to the provision of Sub-section (2) if the High Court is of opinion -
(a) ...
(b) ...
(c)...that any nomination has been improperly rejected; or...
the High Court shall declare the election of the returned candidate to be void."
4. Sub-section (2) of Section 100 is not relevant for this case.
5. When this election petition was heard exparte before issuing notice to the respondent, the following order was passed.
"The question involved in this election petition is about interpretation of the words "any nomination" used in Section 100(1)(c) of the Representation of the People Act, 1951. The election petitioner was a candidate at the election. His nomination paper was not rejected. He is challenging the said election, in which the respondent has been returned, on the ground that the nomination of some other candidate (Sita Ram) had been wrongly rejected.
After the scrutiny date is over, there is a time limit during which a candidate can withdraw his nomination. If that third person has nor raised any objection against rejection of his nomination it can reasonably he treated to be abandonment of his candidature by that third person, which would be akin to withdrawal of the candidature, and therefore prima facie it would not be open to the election petitioner to challenge the validity of the election on the ground of wrong rejection of the nomination of a third person.
Learned counsel for the petitioner wants time to study the matter. List this case in the next supplementary cause list."
6. Subsequently, on 15th May 2002, the following order was passed, by the court directing issue of notice.
"In reply to the objection raised by the order of this Court dated 8.5.2002, about the maintainability of this election petition. Learned counsel for the petitioner has relied upon, the decision of the Supreme Court in the Case of Som Nath v. Bikram reported in AIR 1999 SC 3417. Prima facie decision of the Supreme Court aforesaid appears to be complete reply to the aforesaid objection of this Court. In the circumstance's issue notice by ordinary process as well as registered post fixing 30th July 2002. Publication to be done in a newspaper selected and specified by the Registrar General within three weeks from today."
7. Written statement was filed by the respondents and the following issues were framed on 30th October 2003.
"Heard counsel for the parties.
Following issues are framed:
1. Whether the petitioner can maintain this election petition on the ground of improper rejection of nomination paper of another candidate who has not chosen to challenge the fejection?'
2. Whether this election petition is not maintainable on account of nonjoinder of necessary party as mentioned in para 30/34 of the written statement?
3. Whether this election petition is barred by Section 100 of the Representation of the People Act as mentioned in para 31 of the written statement?
4. Whether the election petition is time barred?
5. Whether the nomination paper of Sita Ram was wrongly rejected?
6. Whether the election of respondent No. 1 is liable to be declared void in view of wrong rejection of the nomination paper of Sita Ram?
List on 17th November 2003 for evidence of the election, petitioner".
8. From the side of the election petitioner, two witnesses P.W.1 Ambika (the petitioner himself) and P.W.2 Sita Ram were examined. 5 documents merits exhibited as P-1 to P-5 were filed from the side of the petitioner.
9. From the respondent's side, the respondent examined himself as D.W. 1.
10. The arguments were heard on 9th July 2004 and thereafter on 13th August 2004 when the judgment was reserved.
My findings on the issues are as follows:
Issue No. 1 - The issue reads as follows:
"Whether the petitioner can maintain this election petition on the ground of improper rejection of nomination paper of another candidate who has not chosen to challenge the rejection?"
11. This issue is covered by the two orders dated 8th May 2002 and 15th May 2002 quoted above. At the hearing of the election petition, no worthwhile arguments were addressed on this issue by either side and, therefore, this issue is decided in favour of the petitioner and it is held that in the light of the decision of the Supreme Court in the case of Som Nath v. Bikram, , the election petition is maintainable by the election petitioner on the ground of improper rejection of the nomination of a third candidate although the said candidate has not chosen to challenge such rejection.
Issue No. 2 - The issue reads as follows:
Whether this election petition is not maintainable on, account of nonjoinder of necessary party as mentioned in para 30/34 of the written statement?"
12. Paragraphs 30 and 34 of the written statement are reproduced below:,
30. That the election petition is not maintainable because the necessary parties Sita Ram as well as other candidates, Returning Officer, District Election Officer, etc, have not been impleaded.
34. That the election petition is bad for joining of unnecessary party and for non-joining of necessary party.
13. There is no law which requires the Returning Officer, District Election Officer to be impleaded as respondents. And no unnecessary respondent has been impleaded in this Election Petition.
14. Section 82 of the Act is relevant for answering the above issue and it is reproduced below:
"82. Parties of the petition - A petitioner shall join as respondents to his petition -
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candiddie has been duly elected all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
15. The election petitioner has not claimed the further declaration that he or any other candidate has been duly elected and, therefore, only the returned candidate was liable to be joined as respondent to the petition.
16. Therefore, the issue No. 2 is answered in favour of the petitioner and it is held that the election petition does not suffer from the defect of non-joinder of any necessary party.
Issue No. 3 - The issue reads as follows:
"Whether this election petition is barred by Section 100 of the Representation of the People Act as mentioned in para 31 of the written statement?"
17. Paragraph 31 of the written petition is reproduce below:
"That the election relief of the petitioner is barred by Section 100 of the Representation of People Act"
18. As will appear from the extract of Section 100(1)(c) quoted above in this judgment, the case set-up by the election petitioner in his pleadings is covered by the said provision and, therefore, the election petition cannot be said to be barred by Section 100.
Issue No. 4 - The issue reads as follows:
"Whether the election petition is time bdrred?"
19. In this case the result of the election was declared on 24th February 2002. The election petition was filed on 4th April 2002. Under Section 81, the limitation for filing the petition is 45 days from the date of election of the returned candidate. The said period of 45 days expired on 10th April 2002. Thus, the election petition was filed well within, the period of limitation prescribed. The issue is, therefore, answered in favour of the petitioner and it is held that the election petition is not time barred.
Issue No. 5 - The issue reads as follows:
"Whether the nomination paper of Sita Ram was wrongly rejected?"
20. Admittedly, the nomination of Sita Ram was rejected by the Returning Officer on 24th January 2002. A copy of the order rejecting the nomination has been filed as Annexure-2 to the election petition. The question to be decided is whether this rejection of the nomination was or was not "improper".
21 .A perusal of the order of the Returning Officer dated 24th January 2002 indicates that the nomination had been rejected on the ground that one of the 10 proposers of the candidate Sita Ram namely, Sant Lal had mentioned that his (Sant Lal's) name appeared at serial number 392 in Part No. 91 of the Electoral Roll of the said constituency; while in fact at that serial number 392, the name of the said proposer Sant Lal was not appearing and at that serial number, the name of one Taufeeq was shown in the voter's list.
22. It is not disputed that the name of Sant Lal appeared at serial number 352' in Part 91 of the Electoral Roll of the said constituency.
23. Two provisions which are relevant here are Section 33(4) and Section 36(4), which are reproduced below:
"33. Presentation of nomination paper and requirements for a valid nomination -
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard id the name of the candidate or his proposer or any other persqn of in regard to any place, mentioned in the electoral roll or tthe nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to he commonly understood; and the returning officer shall, permit any such misnomer or inaccurate description or clerical, technical or printing error to he 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.
36. Scrutiny of nominations-
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
24. In paragraph 16 of the election petition, it has been stated as follows:
"...Shri Sita Ram, who had filled his nommation paper was present at the time of scrutiny of nomination paper on 24.1.2002 pointed out that figure 392 appears to have been written through inadvertence. He further pointed out that the name of his 9th proposer, Sant Lal was recorded in Part 91, at Serial No. 352 and this fact may be verified from the electoral roll. He also pointed out that both the names] at Serial No. 352 and 392 were on the same page and no extra effort would be required for the Returning Officer to verify this fact. A copy of the voter list was also shown to the Returning Officer. Shri Sita Ram actually showed to the Returning Officer the name of his proposer, Sant Lal recorded at Serial No. 352 of Part No. -91. Sri Sita Ram submitted that the defeect was trivial and was not of substantial character and his nomination papers could not be nation pap the rejected on this ground, as the nomination paper was comple in all respects. The antecedents of all Other 9 proposers had been duly verified..."
25. The said paragraph 16 of the election petition has been replied to in paragraph 15 of the written statement but there is no denial of any part of the above quoted averments of the election petitioner regarding what transpired before the Returning Officer at the time of scrutiny.
26. Further, both P.W. 1 i.e. the election petitioner as well as the P.W. 2 Sita Ram have supported the said averments of the election petition in their evidence as P.W. 1 and P.W. 2. There is nothing in their cross-examination which could cast any serious doubt on the correctness of their evidence.
27. Although, when there is no denial in the written statement of a factual averment in the election petition, evidence on the uncontrovened averment remains a formality.
28. Thus, in view of the above, it must be recorded as a finding of fact that the name of Sant Lal was appearing at Serial No. 352 of Part 91 of the Electoral Roll, but in the nomination of Sita Ram by Saint Lal, it was wrongly mentioned as Serial No. 392. At the time of scrutiny, it was pointed out to the Returning Officer that the name of Sant Lal was so appearing at Serial No. 352 but the Returning Officer passed the order dated 24th January 2002 rejecting the said nomination paper merely on that technicality of mention of wrong serial number of the voter list by the proposer Sant Lal
29. Thus, the said defect in the nominatibn paper was not bf a "substantial character. Therefore, the action of the Returning Officer in rejecting the nomination paper of Sita Ram by Sant Lal was contrary to the mandate of Section 36(4).
30. Further the facts also show that the Returning Officer had failed in his duty cast upon him by Section 33(4) of the Act
31. Again the rejection is also contrary to the mandate in the proviso to Section 33(4) which provides that no inaccurate description or clerical, technical or printing error in regard to the electoral roll number shall affect the full operation of the nomination paper and the Returning Officer shall permit such error to be corrected or overlook the same.
32. The case law relied upon by the parries is discussed below.
33. In the case of Hira Singh Pal v. Madan Lal, the Supreme Court has held that rejection of a nomination paper due to a clerical mistake in the same was improper.
34. As against the above decision, from the respondent's side, the decision of the Supreme Court in the case of Bhogendra jha v. Manoj Kumar Jha, has been relied upon. According to that decision at the time of scrutiny when it is found that a nomination does not contain the correct facts, it is not the duty of the Returning Officer too make "roving enquiry" to find out whether the name of the proposer finds place at Some other place in the Electoral Roll. The Supreme Court has also said in the same decision that it is the duty of the candidate/proposer to satisfy the Returning Officer.
35. It has already been found above that on the proven facts in the case before me, was not necessary for the Returning Officer to make any "roving enquiry" and the candidate Sita Ram as well as the proposer Sant Lal had pointed out to tbe Returning Officer about the correct position, therefore, the case of Bhogendra Jha (supra) relied upon by the respondent's side does not apply too the case of the present case.
36. The decision of the Rajasthan High Court in the case of Bhom Raj v. Den Singh Bhati , which holds the omission to mention age in the nomination paper is a defect of substantial nature does not; appty here, because mentioning of wrong electoral-roll number is clearly ruled out as a defect of substantial nature by the express words of the Proviso to Section 33(4), provided of course that the name is found elsewhere in the voter's list and the same is pointed out to the Returning Officer and the Returning Officer is not compelled, in absence of the candidate or the proposer, to make a "roving enquiry" for finding out whether the name does or does not appear elsewhere in the voter's list.
37. For the same reasons as given in the earlier paragraph, the decision of the Andhra Pradesh High Court in the case of S. Ratnamma alias S. Raheema Bee v. S. Shiva Prasad , which deals with mentioning a wrong name in the nomination paper by a candidate which was different from the name appearing on the electoral roll, also cannot be applied to a case where only wrong serial number of the electoral roll is mentioned in the nomination paper.
38. The decision of. the Supreme Court in the case of Narender Singh v. Mala Ram (1998) 8 SCC 198 relied upon by the respondent has no application whatsoever to the present case as that decision turned on its own facts holding that the evidence was not sufficient.
39. The decision of the Supreme Court in the case of Dharam Singh Rathi v. Hari Singh relied upon from the respondent's side does not apply here, inasmuch as in that case before the Supreme Court it was found that the defect of not giving full and proper postal address had not been rectified at the time of scrutiny.
40. The decision of the Supreme Court in the cases of Shiv Charan Singh v. Chandra Bhan Singh (1998) 2 SCC 12, Tek Chand v. Dile Ram , Santosh Yadav v. Narender Singh , Chhedi Ram v. Jhilmit Ram and in the case of Chandrasekhara Rao v. jagapathi Rao 1993 Supp. (2) SCC 229 relied upon from the respondent's side have no application as in those cases it was held that election cannot be set aside merely because of improper acceptance of any nomination unless it is shown that the result of the election was materially effected by such improper acceptance. In Section 100(1)(c), the improper rejection of any nomination is by itself a sufficient ground for declaring the election of the returned candidate as void. However, under Section 100(1)(c)(i), the improper acceptance of any nomination requires the election petitioner to further establish that the result of the election has been materially effected as a result of such improper acceptance.
41. For the same reasons as given in the foregoing paragraph, the decision of the Supreme Court in the case of Uma Ballav Rath v. Maheshwar Mohanty AIR 1999 SC 1322 also is not relevant to the present case as in that case the Supreme Court has held that it was necessary to establish that the result of election was materially effected due to allotment of particular symbol ito the respondent by the Election Commissioner. The case would fall under Section 100(1)(d)(iv) and not under Section 100(1)(c). As already pointed out above, Section 100(1)(c) dealing with improper rejection of nomination does not require pleading or proof that the result of the election has been materially effected due to improper rejection of any nomination. Whereas, Section 100(1)(d) requires such pleading and proof in the cases mentioned in the four parts of Section 120.
42. In the case of Rafiq Khan v. Laxmi Narayan , a wrong electoral roll number was mentioned in the nomination and it was found that the Returning Officer called upon the candidate and the proposer to remain present at the time of scrutiny and even though their names were announced on the microphone, neither of them turned up due to which the nomination paper was rejected. As already discussed above, the facts of the case in hand are totally different from the case of Rafiq Khan (supra) decided by the Supreme Court. In the case of Brij Mohan v. Sat Pal , it has been held as follows:
"...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 oilier 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..."
43. Thus the above decision also does not help the respondent.
44. Similarly, the decision of the Supreme Court in the case of Lila Krishan v. Mani Ram Godara, has upheld the rejection of nomination paper due to mention of wrong serial number of the voter list in the nomination paper only beeaise no assistance was provided to the Returning Officer to correlate and identify the proposer. In the present case, the Returning Officer was told the correct voter list number at the time of scrutiny, therefore, the said Supreme Court decision does not held the respondent.
45. Thus, I find that the rejection of the nomination paper of Sita Ram by his proposer Sant Lal is improper rejection. The issue is decided in favour of the election petitioner.
Issue No. 6 The issue reads as follows:
"Whether the election of respondent No. 1 is liable to be declared void in view of wrong rejection of the nomination paper of Sita Ram ? "
46. In view of the mandate of Section 100(1){c) which directs that if the High Court is of the opinion that any nomination has been improperly rejected, the High Court shall declare the election of the returned candidate to be void, I hold that the election of the respondent Ram Bhual, son of jagdish to the Uttar Pradesh Legislative Assembly from 166 Kauri Ram Assembly Constituency on 24th February 2002 is liable to be declared void in view of wrong rejection of the nomination paper of Sita Ram by the proposer Sant Lal The election petition is accordingly allowed. The election of Ram Bhual son of Jagdish to the Uttar Pradesh Legislative Assembly from 166 Kauri Ram Assembly Constituency on 24th February 2002 is declared void.