Court No. - 10
Case :- ELECTION PETITION No. - 1 of 2012 Petitioner :- Rajesh Kushwah Respondent :- Sri Sant Ram Counsel for Petitioner :- Vivek Kumar Singh,B.P.Singh Counsel for Respondent :- Arun Kumar Tiwari,B.N. Singh,Bhoopendra Nath Singh,Devendra Pratap Singh
Hon'ble Vikram Nath,J.
This Election Petition under Sections 80, 80-A, 81 and 82 of the Representation of People Act, 1951 (referred to as '1951 Act']has been filed by the petitioner/Rajesh Kushwah for the following reliefs:-
(A) to declare the election of the respondent as a Member of Legislative Assembly from 219, Madhaugarh Assembly, District Jalaun as null and void and setting aside the same.
(B) to quash the order dated 06.02.2012 passed by the Returning Officer rejecting the nomination paper of the petitioner from Assembly Constituency No.219, Madhaugarh, District Jaluan.
(C) to pass any other order or direction which this Hon'ble Court may deem fit and proper in the facts of the case.
(D) to award costs to the petitioner.
The Legislative Assembly Elections of the State of Uttar Pradesh were notified to be held in February, 2012. With respect to Constituency No.219, Madhaugarh, District Jalaun, the election programme was notified as under:-
Last date of nomination ... 04.02.2012 Date of scrutiny of nomination papers ... 06.02.2012 Date for withdrawal of candidature ... 08.02.2012 Date for poll ... 23.02.2012 Date for counting of votes ... 06.03.2012 Date of declaration of result ... 06.03.2012 The petitioner filed his nomination as an Independent candidate for the aforesaid Constituency on 4.2.2012. The sole respondent also filed his nomination as a candidate from the Bahujan Samaj Party (BSP) with election symbol 'elephant'. It would be relevant to note that the petitioner was not a registered voter of Constituency No.219, but was a registered voter of Constituency No.220. Alongwith nomination papers, if an elector of a different Constituency applies for nomination, then he is required to annex a copy of the Electoral Roll as required under Section 33 (5) of the 1951 Act. The said section is reproduced below as substantial controversy involved in this petition depends upon the interpretation of the said section:-
Section 33 (5) :Where the candidate is an elector of a different Constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
Admittedly, the petitioner had not filed the electoral roll or relevant part thereof or a certified copy of the relevant entires in such roll alongwith his nomination papers.
6th February, 2012 was fixed for scrutiny of nomination papers. The Returning Officer gave a memo to the petitioner that he had not produced documentary evidence as required under section 33 (5) of the 1951 Act, a copy whereof has been filed as Annexure - 1 to the petition. According to the petitioner, as stated in paragraphs 15 and 16 of the petition, he tried to procure a certified copy of the relevant entires in the Electoral Roll but as the same could not be made available, uncertified copy of the Electoral Roll of Constituency No.220 was submitted. The Returning Officer by his order dated 6.2.2012 rejected the nomination of the petitioner (Annexure - 3 to the petition) on two grounds firstly that despite notice/memo No.1, the petitioner did not file a certified copy of the entries in the Electoral Roll till 6 P.M. and secondly that he did not file No Dues Certificates from five departments. In view of rejection of the nomination paper, the petitioner could not contest the election. He applied to the Principal Secretary, Chief Election Commission, New Delhi for revision of the order of the Returning Officer. But as nothing happened, aggrieved by the aforesaid decision of the Returning Officer, the present Election Petition has been filed to declare the election of Constituency No.219 as null and void after quashing the order dated 6.2.2012.
Notices were issued to the respondent, in response to which a written statement was filed on 21.7.2013. However, learned Counsel, who had filed the written statement, namely, Sri Bhupendra Nath Singh did not appear on any subsequent dates and ultimately, the matter was directed to proceed ex parte. The petitioner filed his affidavit and also the affidavit of one Jitendra Singh.
Heard Sri Vivek Kumar Singh, learned Counsel for the petitioner. No one appeared on behalf of the respondent as such the matter has proceeded ex parte and no application for recall of the said order was filed by the learned counsel for the respondent nor by the respondent personally.
It is well-settled that the Election Petition is to be dealt with strictly in accordance with the requirements provided under the 1951 Act and also in accordance with the provisions of Code of Civil Procedure, 1908 which are applicable as per the provisions of the 1951 Act for trial of Election Petitions. What is to be tested is as to whether the order passed by the Returning Officer was justifiable and on sound grounds or was vitiated in law.
In the present case, the option available to the person filing nomination from a Constituency of which he is not a voter is provided in Section 33 (5) of the 1951 Act. This provision was well-known to the petitioner and if he chose not to file the proof of his residence of his Constituency where he was a registered voter along with the nomination papers, and further even after opportunity having been given to the petitioner by the Returning Officer the petitioner having not filed the certified copy, it cannot be said that the Returning Officer committed any error. The Returning Officer of a particular Constituency has with him available the Electoral Roll of that Constituency and can always verify then and there as to whether the person filing the nomination is or is not a registered voter of that Constituency. However, the Returning Officer of one particular Constituency does not have with him the entire Electoral Roll of the State of all the Constituencies and therefore he has no means to verify if an uncertified copy of the Electoral Roll is filed. Further, if the petitioner had filed the uncertified copy of the Electoral Roll alongwith his nomination papers, then the other candidates who had applied for nomination could have had an opportunity to raise objections if any available to them based on the said Electoral Roll, but where admittedly an uncertified copy of the Electoral Roll is not filed and it is alleged to be submitted at 6 P.M. on the last date of scrutiny of the nomination papers, then other candidates would not have adequate opportunity to raise objections. Further, even the Returning Officer will not have any means to get it verified as to whether the petitioner was actually a genuine registered voter in the Electoral Roll of another Constituency. However, if a certified copy of the Electoral Roll was produced the Returning Officer would have relied upon and accepted the nomination.
It is the satisfaction of the Returning Officer on examining the nomination papers and supporting documents as to whether the nomination paper is to be accepted or rejected. If the Returning Officer has exercised that jurisdiction vested in him for reasons which cannot be otherwise said to be palpably incorrect or sustainable, it cannot be said that the rejection by the Returning Officer was bad in law. So long as the order stands, this Election Petition has no grounds for being proceeded any further as no other ground has been raised.
For the reasons recorded above, I do not find any reason to interfere in the order of the Returning Officer rejecting the nomination paper of the petitioner. Petitioner is himself to be blamed for the deficiency.
Accordingly, the Election Petition is dismissed.
Order Date :- 25th April, 2018 lakshman [Justice Vikram Nath]