Bombay High Court
Abhijit Jayprakash Adhikari vs R/3 Returning Officer And Others (R/1 ... on 25 October, 2024
2024:BHC-AUG:26422
corrected EP14-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ELECTION PETITION NO. 14 OF 2019
Abhijit s/o Jayprakash Adhikari,
Age 44 years, Occ. Agri.,
R/o Plot No. 5, Tirupati Residency,
Ramchandra Nagar, Aurangabad,
Tal. & District Aurangabad ... PETITIONER
VERSUS
1. [Election Commission of India
Nirvachan Sadan, Ashoka Road,
New Delhi - 110001, Respondent Nos.
Through it's Chief Election 1 & 2 are Deleted
Commissioner as per order
below Exh.8
2. Chief Electoral Officer and ... Dt.18.01.2024
District Collector, Aurangabad]
3. The Returning Officer for Elections to
111-Gangapur Legislative Assembly
Constituency.
4. Acchelal Ramnaresh Yadav,
Age Major, Occ. Agri.,
R/o Ranjangaon (Shen),
Tal. Gangapur, Dist. Aurangabad
5. Prashant Bansilal Bamb,
Age Major, Occ. Agri.,
R/o Lasur Station, Tal. Gangapur
District Aurangabad.
6. Santosh Annasaheb Mane Patil,
Age Major, Occ. Agri.,
R/o Jamgaon, Tal. Gangapur,
District Aurangabad.
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7. Ankush Baburao Kalwane,
Age Major, Occ. Agri.,
R/o Ghanegaon, Tal. Gangpur,
District Aurangabad.
8. Kashinath Haribhau Vetal,
Age Major, Occ. Agri.,
R/o Plot No. 29, Krishna Niwas,
Radhaswami Colony, Jatwada Road,
Aurangabad, Dist. Aurangabad
9. Pravin Himmatrao Ranyeole,
Age Major, Occ. Agri.,
R/o Galli No. 11, Sanjay Nagar,
Mukundwadi, Aurangabad.
10. Rahul Shivram Sonule,
Age Major, Occ. Agri.,
R/o Datta Nagar, Ranjangaon (Shen),
Tal Gangapur, Dist. Aurangabad.
11. Bharat Sukaji Jadhav,
Age Major, Occ. Agri.,
R/o Mahsul Colony, Vaijapur Road,
Gangapur, Tal. Gangapur,
District Aurangabad
12. Devidas Ratan Kasabe,
Age Major, Occ. Agri.,
R/o Jaysing Nagar, Behind Lasur Tol
Naka, Gangapur, Tal. Gangapur,
District Aurangabad.
13. Narayan Bhanudas Pawar,
Age Major, Occ. Agri.,
R/o Lamangaon, Dharankheda,
Tal. Kannad, Dist. Aurangabad
14. Babasaheb Arjun Gaikwad,
Age Major, Occ. Agri.,
R/o Waluj MIDC, Aurangabad,
Tal. & District Aurangabad.
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15. Babasaheb Vishwanath Thorat,
Age Major, Occ. Agri.,
R/o Ambegaon, Post. Ashegaon,
Tal.Gangapur, Dist. Aurangabad.
16. Bharat Atmaram Fulare,
Age Major, Occ. Agri.,
R/o Gut No.52/11, Laxmi Road,
Wadgaon (Ko.),
Tal. & District Aurangabad.
17. Shaikh Gulam Ali Mohd. Husen,
Age Major, Occ. Business,
R/o House No. 1-11-1-152, Budhi Lane,
Aurangabad, Dist. Aurangabad. ... RESPONDENTS
Mr. S. G. Dodya, Advocate for the Petitioner.
Mr. Alok Sharma, Advocate for Respondent No.3
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 15th October, 2024
PRONOUNCED ON : 25th October, 2024
JUDGMENT:
-
1. The Petitioner has instituted the present Petition under Section
81 of the Representation of People Act, 1951 seeking declaration that
the election of Respondent No. 5 from 111-Gangapur Legislative
Assembly Constituency declared on 24.10.2019 is illegal, null and
void and further prayed to quash and set aside the same. The
Petitioner further prayed for issuance of directions to hold fresh
elections.
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2. The Petitioner alleged that Respondent No.1, Election
Commissioner had declared an election programme for the State
Legislative Assembly, and in pursuance of the same, he submitted his
nomination form alongwith Respondent Nos. 4 to 17 as candidates
from 111-Gangapur Legislative Assembly Constituency. However, on
24.10.2019, the Respondent No. 3, Returning Officer declared
Respondent No.5 as elected candidate from the said constituency.
3. The Petitioner alleged that he had submitted his nomination
form to contest the election being a candidate on 04.10.2019
alongwith affidavit in the prescribed form after receiving the original
AB Form from a State level political party i.e. Maharashtra
Navnirman Sena (in short "MNS"), but inadvertently, he had
enclosed a colour photocopy of the AB Form with the nomination
form and original was retained with him. On 05.10.2019, as per
schedule of scrutiny of nomination paper, he had attended the office
of Respondent No. 3, but without giving any opportunity to him
(petitioner) to cure the defects, Respondent No. 3 Returning Officer
rejected his nomination only on ground that he has not filed original
AB Form with his nomination form.
4. The Petitioner further alleged that inadvertently, the colour
photocopy of original AB Form was submitted by him and when he
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came to know about the said fact, he had contacted with Respondent
No.3, Returning Officer on his Mobile but at that time, the Returning
Officer Mr. Sandip Patil informed him that he would receive original
AB Form at the time of scrutiny on 05.10.2019. However, on the
next day i.e. on 05.10.2024, Mr. Sunil Yadav joined the post of
Returning Officer and he refused to accept the original AB Form of
the Petitioner without providing him any opportunity of hearing to
remove the said defect in nomination form and passed the order
dated 05.10.2019, thereby rejected his nomination form.
5. According to the Petitioner, no provision has been
contemplated under the Representation of People Act, 1951 to reject
the nomination paper, if a photocopy of AB Form is produced. While
submitting the documents by him, inadvertently original AB Form
was replaced with Photocopy. Therefore, said defect could have been
cured, if proper opportunity to cure could have been offered to him.
However, without considering the provisions of Section 36 of the
Representation of People Act, Respondent No.3, Returning Officer
rejected his nomination form. Therefore, the election of Respondent
No. 5, declared on 24.10.2019, is illegal and bad in law and the
same is liable to be quashed and set aside, so also, fresh election
needs to be held.
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6. The Petitioner further pleaded that Respondent No.1, Chief
Election Commissioner had issued letters dated 16.01.2019,
07.02.2019 and 11.07.2019, whereby the Returning officers were
declared unqualified. Therefore under order dated 03.10.2019, the
Returning Officer Mr. Sandip Patil came to be transferred with
immediate effect and Mr. Sunil Yadav, Deputy Collector (Land
Reform) assumed the duty as Returning Officer in place of Mr.
Sandip Patil. It further alleged that, Respondent No.1 Chief Election
Commissioner, illegally and without any reason transferred Mr.
Sandip Patil in the midst of submission of nomination form, which is
not permissible. According to the Petitioner, his nomination form was
accepted by the then Returning Officer Mr. Sandip Patil and the
scrutiny was conducted by Mr. Sunil Yadav, who was subsequently
joined to the post of Returning Officer. According to the Petitioner,
Mr. Sunil Yadav did not undergo training and hence, he was not
qualified. The newly posted Returning Officer Mr. Sunil Yadav
illegally rejected his nomination without passing any reasoned order,
therefore, the action on part of Respondent No. 3 is illegal and bad in
law. Hence, prayed to quash and set aside the election of Respondent
No. 5.
7. All the Respondents are duly served. However, only Respondent
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No. 16 has filed his written statement at Exh. 7. Since Respondent
Nos. 1 to 15 and 17 failed to file their written statements, therefore,
on 14.09.2023, this Court passed an order below Exh. 1 and
proceeded with petition without written statements on behalf of
Respondent Nos. 1 to 5, 7 to 9 and 11 to 15 and 17 (wrongly
mentioned as 16 ). Subsequently, the Respondent Nos. 1 to 3 filed an
application below Exh.8 for deletion of their names. On 18.01.2024,
this Court passed an order below Exh. 8 and permitted for deletion of
names of Respondent Nos. 1 and 2.
8. On the basis of rival pleadings of the Petitioner and the
Respondent No. 16, this Court, on 14.03.2024, has framed following
Issues and I have recorded my findings thereon for the reasons stated
herein below.
ISSUES FINDINGS
1. Does the Petitioner proves that the Negative
Respondent No.3-Returning Officer
illegally rejected his nomination paper
on 05.10.2019 ?
2. Does the Petitioner proves that attaching Negative
original 'A' and 'B' Forms with the
nomination paper is not mandatory ?
3 What order ? As per final order.
REASONS
9. Issue Nos. 1 and 2: Since both the issues are interlinked with
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each other, I would like to deal with both these issues together.
10. Heard Mr. S. G. Dodya, the learned counsel for the
Petitioner and Mr. Alok Sharma, the learned counsel for Respondent
No.3- Returning Officer.
10. In order to prove both the issues, the Petitioner has filed an
evidence affidavit and proved documentary evidence as under:
Exh. 25 Certified copies of documents furnished alongwith
nomination form.
Exh.26 Certified copy of Scrutiny list of nomination form.
Exh. 27 Nomination form Part-I, Part II, Part II and Part III with
receipt dated 04.10.2019.
Exh.28/ Details of income tax return, verification, extract of
1 to 11 pass book, declaration form, acknowledgment receipt
for allotment of symbol, acknowledgment of
submission of original AB Form, etc.
Exh. 29 Certified copy of order of rejection of nomination form.
Exh.30 Application submitted by the Petitioner for issuance of
certified copy of order of rejection of his nomination
form.
Exh. 31 Certificate under section 66 in respect of declaration of
result of Respondent No. 5.
Exh. 32 Certified copy of certificate of election issued by
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Respondent No.3 in respect of 111-Gangapur Assembly
constituency.
Exh. 33 Copies of transfer orders dated 03.10.2019 issued by
the Deputy Secretary, State of Maharashtra, whereby
Returning Officer Mr. Sandip Patil was transferred and
Mr. Sunil Yadav joined as Returning Officer.
11. The learned counsel appearing for the Petitioner canvassed in
vehemence that Section 100 of the Representation of People Act
provides for declaration of election being void on the following
grounds:
(a) On the date of election candidate was not qualified or
disqualified.
(b) Any corrupt practice has been committed by the returned
candidate or his election agent.
(c) If the nomination has been improperly rejected.
(d) The result of the election, insofar as returned candidate has
been merely affected on ground of (i) improper acceptance
nomination; (ii) any corrupt practice committed in the
interests of the returned candidate; (iv) by improper
reception, refusal or rejection of any vote or the reception of
any vote which is void; (iv) by any non compliance with the
provisions of the constitution or under the Representation of
People Act or of any rules or orders made under the Act.
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Therefore, it is submitted that though the Petitioner has
submitted his nomination form, however, the said nomination is
improperly and illegally rejected by Respondent No.3.
12. The learned counsel appearing for the Petitioner further
canvassed that on 04.10.2019, Mr. Sandip Patil was holding the post
of Returning Officer. The Petitioner submitted his nomination form on
04.10.2019 with the Returning Officer Mr. Sandip Patil, who issued
Part IV - acknowledgment receipt of nomination form and intimated
the Petitioner about scrutiny of the nomination form at 11.00
onwards on 05.10.2019. However, on the date of scrutiny i.e.
05.10.2019, without providing any sufficient opportunity to cure the
said defect, Respondent No. 3 rejected the nomination of the
Petitioner on the ground that original AB Form was not attached
with the nomination form and when the Petitioner visited the office
of Respondent No.3, at that time, some new Returning Officer Mr.
Sunil Yadav had joined the post of Returning Officer but he refused to
accept the original AB Form, though the Petitioner has tendered the
same.
13. The learned counsel for the Petitioner further canvassed that
the ground set out for rejection of the nomination form on account of
non furnishing of original AB Form is not substantive defect, so also,
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no other candidate claimed to have original AB Form from the State
level political party "MNS". Therefore, Respondent No. 3 could have
permitted the Petitioner to cure the said defect. However, the
Returning Officer, who subsequently joined, passed an order of
rejection of nomination below Part-V on 05.10.20219. Therefore
action on the part of Respondent No.3 is illegal and bad in law and
the entire election process wherein Respondent No.5 is declared as
elected candidate needs to be quashed and set aside.
14. The learned counsel for the Petitioner further canvassed that
vide orders dated 16.01.2019, 07.02.2019 and 11.07.2019, the State
Election Commissioner had informed about those Returning Officer
who were not qualified to hold the said post. Accordingly, on
03.10.2019, the Secretary of the State Government issued transfer
order and thereby posted Mr. Sunil Yadav on the Post of Returning
Officer for 111-Gangapur Legislative Assembly Constituency and
earlier Returning Officer Mr. Sandip Patil was immediately relieved,
without conducting any hearing prior to rejection of nomination
form. Respondent No.2-District Collector, Aurangabad immediately
informed about transfer of Shri Sandip Patil on 03.10.2019 and Mr.
Sunil Yadav joined the post of Returning Officer who was not eligible
for the said post. The unqualified Returning Officer Mr. Sunil Yadav
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conducted the election and declared Respondent No.5 as elected
candidate.
15. The learned counsel appearing for the Petitioner further
canvassed that as per the procedure laid down under the
Representation of People Act as well as the Hand-book of Returning
Officer issued by the Election Commission of India, if the nomination
form is accepted by a particular Returning Officer, then such
acceptance of nomination from cannot be scrutinized and cannot be
rejected by the other Returning Officer, other than the Returning
Officer who has accepted the nomination form. However, Mr. Sandip
Patil, the then Returning Officer who had accepted the nomination
form was transferred on 03.10.2019 and on 05.10.2019, another
unqualified Returning Officer Mr. Sunil Yadav scrutinized and
rejected the nomination form of the Petitioner. Therefore, the entire
process of election is illegal, bad in law and liable to be quashed and
set aside.
16. To buttress his submissions, the learned counsel appearing for
the Petitioner has placed reliance on the following case laws:
(I) Surendra Nath Khosla and another Vs. Dalip Singh and
others, AIR 1957 SC 242.
(II) Union of India and others Vs. Hitender Kumar Soni, AIR
2014 SC 3574.
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(III) AIR 2009 SC 2975, Uttamrao Shivdas Jankar Vs. Ranjitsinh
Vijaysinh Mohite Patil.
(IV) (1999) 2 SCC 489, Rakesh Kumar Vs. Sunil Kumar
(V) (2014) 5 SCC 312, Arikala Narasa Reddy Vs. Venkata Ram
Reddy Reddygari and others
(VI) Ram Awadesh Singh Vs. Smt. Sumitra Devi and others,
(1972) 3 SCC 131.
(VII) Rajeev Kapoor and another Vs. Karan Pal Singh, (2013) 14
SCC 202.
17. Per contra, Mr. Alok Sharma, the learned counsel for
Respondent No.3, Returning Officer canvassed in vehemence that the
nomination form specifically provides for giving 10 Proposers,
however, the Petitioner has not given the names of 10 proposers as
required. So also, the Petitioner failed to submit the original AB Form
as per the provisions of the Election Symbols (Reservation and
Allotment) 1968, despite the Petitioner had submitted his nomination
form for the State recognized political party "MNS". So also, the
Petitioner failed to fill up the nomination form properly and did not
furnish the extract of voters list to show, at which serial number and
in which part, the name of the Petitioner is shown as voter. The
Petitioner had furnished information in Annexure No. 26-affidavit
showing that he is voter from 108-Aurangabad (West) Legislative
Assembly Constituency at Serial No. 967 in Part No. 197, but no
certified copy of voter list was furnished. Therefore, the Returning
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Officer rejected the nomination form of the Petitioner, which is just
and proper and there is no illegality on the part of Respondent No. 3
while rejecting the nomination from of the Petitioner.
18. It is further canvassed that the Petitioner himself admitted in
his cross examination about filing nomination form the State
recognized political party "M.N.S." to contest the election from 111-
Gangapur Legislative Assembly Constituency, for the year 2019,
however, the Petitioner had submitted a colour photocopy of AB
Form and original AB Form was retained with him. The Petitioner
himself admitted that, inadvertently he had enclosed the colour
photocopy of AB Form. The Petitioner further admitted about not
enclosing the copy of voter list in which his name is enlisted being a
voter of 108-Aurangabad, State Legislative Assembly Constituency.
Therefore, as per the admissions given by the Petitioner, the
nomination form of the Petitioner was incomplete and the
Respondent No.3-Returning Officer has rightly rejected the same,
therefore, prayed for dismissal of the Petition.
19. Mr. Alok Sharma, the learned counsel appearing for
Respondent No.3 further canvassed that, on 05.10.2019, the
Petitioner had tendered an application for seeking permission to
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enclose original AB Form with his nomination form, but the Petitioner
did not tender the AB Form prior to passing of the rejection order
dated 05.10.2019. Therefore, considering the provisions of Allotment
of Symbol Order, 1968, the Returning Officer has properly rejected
the nomination of the Petitioner. Therefore, no any illegality was
committed by the Respondent No.3.
20. Having regard to the submissions canvassed on behalf of both
the sides, I have gone through the record. It is not in dispute that in
the year 2019, General Election of Maharashtra State Legislative
Assembly was declared by the Election Commission of India. It is
also not in dispute that from 111-Gangapur Legislative Assembly
Constituency, Mr. Sandip Patil was holding the post of Returning
Officer. It is an admitted fact that on 04.10.2019, the Petitioner
submitted his nomination form Exh. 27 in Form 2B Rule 4. On
perusal of Exh. 27, it is clearly proves that, the Petitioner has filled
the nomination form by giving his name as candidate from 111-
Gangapur-Khultabad Legislative Assembly Constituency. However, in
the column of the contesting candidate, he has given the name of
another person namely Sonusing Dhansing Rajput who appears to be
the proposer. The Petitioner must have to fill the column in respect
of 10 proposers in the nomination form, however, the Petitioner has
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made a statement that said column is not applicable to him. Further
certified copy of the voters list enlisting petitioner's name as voter of
particular constituency was also not enclosed with the nomination
paper. As per Scrutiny sheet Exh. 25, the Petitioner was required to
furnish necessary documents including certified copy of the voters list
in which name his name is enlisted as a voter.
21. The Election Symbols (Reservation and Allotment) Order, 1968
provides reservation of symbols for the National recognized political
party and State recognized political party. The Petitioner claims that
Maharashtra Navnirman Sena is a State recognized political party.
No doubt, the Petitioner had submitted his nomination being the
candidate of the State recognized political party i.e Maharashtra
Navnirman Sena (MNS), therefore, it was mandatory on the part of
the Petitioner to enclose the original AB Form issued by the
authorized person of the State recognized political party. The
Petitioner himself pleaded and stated in his evidence affidavit that
though he was having original AB Form issued by the State
recognized political party i.e MNS, but inadvertently, he had enclosed
the colour photocopy of AB Form and original was retained with him.
Therefore, this admission itself proves that the Petitioner was
negligent while filling his nomination form properly.
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22. Indeed, during the course of scrutiny of the nomination
paper, Respondent No.3, Returning Officer noticed deficiencies in the
nomination paper. So also, on 05.10.2019, primarily, the Returning
Officer was found deficiency that original AB Form was not furnished
till last date. Therefore on 05.10.2019, the Returning Officer passed
the order and thereby rejected the nomination form of Petitioner on
following grounds:-
(a) The Petitioner filled up the part of the nomination showing
proposer namely Shri Karamchand Subhash Rajput, but did not
filled the Part II of the nomination form.
(b) The Petitioner has neither given the names of 10 Proposers nor
furnished the original AB Form of his Political party i.e.
Maharashtra Navnirman Sena until 3.p.m. of the last date i.e.
04.10.2019.
(c) The Petitioner has not furnished voters list showing in which
part and at what Serial Number his name is enlisted as voter. In
form No. 26 affidavit, the Petitioner shown that his name is
enlisted in 108-Aurangabad (West) constituency in Part No.
197 Serial No. 967, but no such voter list was produced.
23. Needless to say that the Petitioner has produced the Photocopy
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copy of only first page of the order dated 05.10.2019 with the
petition but intentionally he did not produce the second page of the
said order. So also, the Petitioner failed to prove Order dated
05.10.2019 passed by the Respondent No. 3 Returning Officer, which
shows suppression of material fact on the part of the Petitioner.
Though the Petitioner relied on the note-sheet Exh. 37 maintained by
the Returning Officer during the course of Scrutiny but said note
sheet is not the reasoned order as required under section 36 of the
Representation of the People Act. Therefore, the contention raised by
the Petitioner is not acceptable to me.
24. Needless to say that the Petitioner tried to challenge the order
of rejection of nomination form Exh.37, which is note-sheet
maintained by the Returning Officer at the time of scrutiny, on
ground that, on 04.10.2019, Mr. Sandip Patil accepted his nomination
form, however, on 05.10.2019, another Returning Officer Mr. Sunil
Yadav, without providing him an opportunity to cure the defect in his
nomination, passed the order and rejected his nomination. It is
further alleged that, on 27.09.2019, the Divisional Commissioner had
issued an order with approval of the Chief Election Commissioner
and transfer order dated 03.10.2019 was issued whereby, Mr. Sandip
Patil, the then Returning Officer was transferred with immediate
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effect and relieved without hearing the Petitioner. The said order of
transfer was served upon Respondent No.2, District Collector
Aurangabad, who informed about the transfer of Mr. Sandip Patil
immediately on 03.10.2019 itself. Therefore, on 03.10.2019, Mr.
Sandip Patil was relieved from the post of Returning Officer and Mr.
Sunil Yadav immediately joined the post as Returning Officer of 111-
Gangapur Legislative Assembly Constituency. The newly joined
Returning Officer was not imparted proper training for scrutiny of
nomination forms and as such an untrained Returning Officer
illegally rejected his nomination form on 05.10.2019.
25. Needless to say that merely because one Returning Officer who
had accepted the nomination form but due to his immediate transfer
and joining of another Returning Officer who made a scrutiny and
rejected the nomination form on the ground of deficincies and non
compliance of mandatory requirement, the order of rejection of
nomination paper does not vitiate.
26. In the case of Uttamrao Shivdas Jankar (supra), the Hon'ble
Supreme Court has held in paragraph Nos. 27 and 35 as under :
"27. Section 100 of the Act provides for the grounds for
declaring election to be void inter alia in a case where a
nomination has been improperly rejected. Improper
rejection of a nomination, on a plain reading of the
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aforementioned provision, in our opinion, would not
mean that for the said purpose an election Petitioner can
only show an error in the decision making process by a
Returning Officer but also the correctness of the said
decision. Indisputably, there exists a distinction between a
decision making process adopted by a statutory authority
and the merit of the decision. Whereas in the former, the
court would apply the standard of judicial review, in the
latter, it may enter into the merit of the matter. Even in
applying the standard of judicial review, we are of the
opinion that the scope thereof having been expanded in
recent times, viz., other than, (i) illegality, (ii) irrationality
and (iii) procedural impropriety, an error of fact touching
the merit of the decision vis-a-vis the decision making
process would also come within the purview of the power
of judicial review.
35. The presumption of correctness of the nomination
paper being statutory in nature, as intention of the
Parliament as also the Election Commission was that even
if somebody had filed an improper nomination, but for
which he can be given benefit of doubt being a possible
subject matter of an election petition where the question
would be gone into in details, it was for the respondent
herein to prove that the nomination paper prima facie did
not contain the signatures of the proposers and, thus,
were liable to be rejected."
27. In case of Arikala Narasa Reddy (supra) the Hon'ble Supreme
Court has held that, it is settled legal proposition that the instructions
contained in the Handbook for Returning Officer are issued by the
Election Commission in exercise of its statutory functions and are
therefore, binding on the Returning Officers.
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28. In case of Rakesh Kumar (supra), the Hon'ble Supreme Court
has held as under:
"The Returning Officer would have been justified in
rejecting the nomination paper of the respondent, had the
respondent not sought an opportunity to rebut the objection
raised by the Returning Officer or was unable to rebut the
objection within the time allowed by the Returning Officer.
Since the respondent had by his written application, filed at
the time of scrutiny of the nomination paper itself claimed
to be the official candidate set up by BJP, which claim was
not disputed by anyone else during the scrutiny, and had
sought time of 24 hours to provide relevant material in
support of his submission, it was obligatory on the part of
the Returning Officer to allow time to him to rebut the
objection, suo motu, raised by the Returning Officer. 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 scrutiny. Under the proviso to Section 36(5), 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 exercise his jurisdiction to postpone the decision
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as to the validity of the nomination paper of the respondent,
even after the respondent had sought time to meet the
objection indeed rendered the rejection of the nomination
paper of the respondent both improper and illegal."
29. In case of Ram Avdesh Singh (supra), the Hon'ble Supreme
Court has held as under:
"From a, combined reading of Sections 33 and 36, it is clear
that a mis-description as to electoral number of the
candidate or of the proposer or their name in the
nomination paper is not to be considered as a material
defect in the nomination paper. The very fact that the law
requires the Returning Officer to look into the nomination
paper, when filed and get any mistake regarding the name
or electoral number of the candidate or his proposer
corrected shows that the mistake regarding them is not a
material defect. The High Court was not justified in
allowing the election petition on the ground that his
nomination was improperly accepted."
30. In case of Rajiv Kapoor (supra), the Hon'ble Supreme Court has
considered that the word "immediate effect" means the date of the
order so passed.
31. In case of Union of India Vs. Hitender Kumar Soni (Supra), the
Hon'ble Supreme Court has considered the words 'with immediate
effect' and observed that, "On a joint reading of clauses (3) and (4)
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of office memorandum dated 11.02.1983 issued by the Government
of India, Ministry of Personnel, Public Grievances and Pensions, can
be safely inferred that depending upon the facts and circumstances of
a case and nature of request made in a resignation letter, the
Government has the power to accept the resignation so as to bring
about a severance of relationship of master and servant "with
immediate effect". But in cases where the letter of resignation itself
specifies a future date for being relieved or where, as indicated in
clause (2) the concerned Government servant is engaged on work of
importance etc., the resignation may not be accepted straightaway. It
is in such circumstances only that Government may exercise its power
to accept the offer but defer the date from which resignation would
become effective. The normal rule, however, remains that
Government has the power to accept a resignation with immediate
effect. In case the Government for some reasons wishes to defer or
specify the date from which resignation would become effective, it is
entitled to take work from the concerned Government servant till he
is relieved in accordance with the facts and requirements of the case."
32. In the case of Surendra Nath Khosla (supra), the Hon'ble
Supreme Court held as under:
"Though the words of S. 100 as it stood before the
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Amending Act 27 of 1956, are in general terms with equal
application to the case of improper acceptance, as also of
improper rejection of nomination paper, case law has made
a distinction between the two classes of cases. There is a
presumption in the case of improper rejection of a
nomination paper that it has materially affected the result
of the election. Apart from the practical difficulty, almost
the impossibility, of demonstrating that the electors would
have cast their votes in a particular way, that is to say that a
substantial number of them would have cast their votes in
favour of the rejected candidate, the fact that one of several
candidates for an election had been kept out of the arena is
by itself a very material consideration. Cases can easily be
imagined where the most desirable candidate from the
point of view of electors and the most formidable candidate
from the point of view of the other candidates may have
been wrongly kept out from seeking election. On the other
hand, in the case of an improper acceptance of a
nomination paper proof may easily be forthcoming to
demonstrate that the coming into the arena of an additional
candidate has not had any effect on the election of the best
candidate in the field. The conjecture therefore is
permissible that the legislature realising the difference
between the two classes of cases has given legislative
sanction to the view by amending S.100 by the
Representation of the People (Second Amendment) Act, 27
of 1956, and by going to the length of providing that an
improper rejection of any nomination paper is conclusive
proof of the election being void."
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33. In the case in hand the nomination form of the Petitioner was
rejected vide order dated 05.10.2019 with a reasoned order. Though
the Petitioner failed to prove said order in his evidence, but the
Petitioner himself has produced the photocopy of first page of the
order dated 05.10.2019 with the petition under list of document
Exhibit-4. During the course of argument, the learned counsel
appearing for the Returning Officer has produced the certified copy of
the nomination form alongwith reasoned order dated 05.10.2019
passed by the Returning Officer, which proves that the nomination
form of the Petitioner came to be rejected on three deficiencies (a) to
(c) described in para 22 herein above. However, the Petitioner only
proved the Note-sheet Exh. 37, wherein note about rejection of
nomination paper and grounds are mentioned. The Petitioner
himself admitted that he had submitted his candidature from State
recognized political party i.e. Maharashtra Navnirman Sena and he
had submitted colour photocopy of the said AB Form and had
retained the original AB Form with him. Therefore, this fact itself
proves that the Petitioner was negligent while filling his nomination
form and failed to fulfill mandatory requirement of the nomination
form. Therefore, the order of rejection of nomination form of the
Petitioner does not appear to be illegal and bad in law. Hence, I
answer the Issue Nos. 1 and 2 in negative.
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34. In view of the above discussion, I proceed to pass the following
order:
::ORDER::
1. The Election Petition No. 14 of 2019 is hereby dismissed.
2. Parties to bear their own costs.
( Y. G. KHOBRAGADE, J. )
Chavan
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