Rajasthan High Court - Jodhpur

Pankaj Choudhary vs Kailash Choudhary on 27 April, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Election Petition No. 6/2019

Pankaj Choudhary S/o Shri S.S. Choudhary, Aged About 44 Years, R/o II/3 Gandhi Nagar, Bajaj Nagar Marg, Jaipur.

----Petitioner Versus

1. Kailash Choudhary S/o Shri Taga Ram Choudhary, R/o Ward No. 32, Jat Colony, Samdari Road, Balotra, Tehsil Pachpadra, District Barmer.

2. Election Commission Of India, Through Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi.

3. Chief Election Officer, State Election Commission, Rajasthan, Jaipur.

4. Returning Officer, 17, Barmer Parliamentary Constituency, Barmer.

----Respondents

For Petitioner(s) : Mr. Mohamood Pracha.

Mr. Rajak Khan Haidar.

         For Respondent(s)          :     Mr. M.M. Dhera.



                      HON'BLE MR. JUSTICE ARUN BHANSALI

Reportable                                  Judgment

         27/04/2021

This election petition under Sections 80, 80A, 81 and 100(1)

been filed by the petitioner calling in question the election of

respondent No.1 from the Barmer Parliamentary Constituency of

Rajasthan.

It is, inter alia, indicated in the petition that the Election

Commission of India ('ECI') notified the following schedule for

(2 of 16) [EP-6/2019]

holding election to various Parliamentary Constituencies including

Barmer Parliamentary Constituency as under:-

"

         Sr.No.   Particulars                                      Date
         1.       Date of issuing the gazette                      02.04.2019
                  notification
         2.       Last date for filing nomination                  09.04.2019
         3.       Date for scrutiny of nomination                  10.04.2019
         4.       Last    date for      withdrawal of              12.04.2019
                  nomination
         5.       Date of polling                                  29.04.2019
         6.       Date of counting/declaration of                  23.05.2019
                  results.
                                                                                "

It is indicated that the petitioner is an erstwhile IPS Officer

appointed by the Govt. of India in Rajasthan Cadre. He was

dismissed from service vide order dated 19.02.2019 passed by the

Govt. of India, Ministry of Home Affairs for violating the Conduct

Rules, 1968. It is claimed that as the petitioner was a proposed

candidate for the Barmer Parliamentary Constituency for

Parliamentary Elections to be held between April-May, 2019, he

contacted the Secretary, ECI through Fax, E-mail, WhatsApp and

personally handed over a letter to the ECI on 01.04.2019

requesting issuance of certificate under Sections 9(2) and 33(3)

of the Act, which was necessary for the petitioner to contest the

elections.

The notification for Parliamentary Elections was issued on

02.04.2019 and as per the schedule, last date for filing nomination

for Barmer Parliamentary Constituency was 09.04.2019, the

scrutiny was held on 10.04.2019 and the last date of withdrawal

of nomination was 12.04.2019. The petitioner filed his nomination

papers for Barmer Parliamentary Constituency on 08.04.2019.

(3 of 16) [EP-6/2019]

It is indicated in the petition that the nomination papers

were not accompanied by certificate envisaged under Section

33(3) of the Act.

It is alleged that the ECI, despite the letter dated

01.04.2019, did not issue certificate to the petitioner, however the

Under Secretary of ECI issued a letter dated 04.04.2019 to the

Chief Electoral Officer, Rajasthan, Jaipur regarding miscellaneous

complaints and required it to take appropriate action, in

consonance, the Chief Electoral Officer, Rajasthan, Jaipur

addressed a letter dated 06.04.2019 to the Secretary, ECI

indicating that the certificate was required to be issued by the ECI,

New Delhi.

It is then indicated in the petition that scrutiny of the

nomination papers was held on 10.04.2019, the petitioner made a

request to ECI on 10.04.2019 at around 1.03 PM seeking issuance

of requisite certificate under Section 33(3) of the Act, however,

the same was not responded to. As a result, the nomination form

of the petitioner was rejected by the Returning Officer as per

Section 36(2)(b) of the Act in absence of requisite certificate.

It is then indicated that the petitioner wrote a

letter/representation to the ECI on 11.04.2019 indicating his

interest to contest the election from Bikaner Parliamentary

Constituency and again requiring it to issue certificate by 5 PM on

the same date, however, as the requisite certificate was not

issued, S.B. Civil Writ Petition No. 5356/2019 was filed seeking

direction for issuance of certificate, wherein on 12.04.2019, a

order was passed directing the ECI to pass a speaking order on or

before 16.04.2019. Pursuant to the said direction, the ECI issued

(4 of 16) [EP-6/2019]

certificate under Section 9(2) and 33(3) of the Act indicating that

the charge against the petitioner does not involve 'corruption or

'disloyalty to State'.

The petitioner on receiving the certificate applied to the Chief

Electoral Officer, ECI, New Delhi praying that he must be allowed

to contest election from Barmer Parliamentary Constituency,

however, the same was not permitted.

Based on the above averments, the election of respondent

No.1 to the Barmer Parliamentary Constituency has been called in

question with the following reliefs:-

"a) The election petition may kindly be allowed.

b) The impugned order dated 10.04.2019 (Ann.1) passed by Returning Officer, Barmer Parliamentary Constituency (PC-17) (District Collector and District Magistrate), Barmer may kindly be quashed and set aside.

c) The election of the respondent No.1 Kailash Choudhary from Barmer Parliamentary Constituency (PC-17) be declared void.

d) The respondent Election Commission of India may kindly be directed to conduct the fresh election of Barmer Parliamentary Constituency (PC-17) while considering the nomination form of the petitioner valid for contesting the election.

e) The respondent Chief Election Commissioner may kindly be directed to issue the certificate as required under Section 33(3) and 9(2) of the Act of 1951 for contesting the election of Barmer Parliamentary Constituency (PC-17).

f) Any other appropriate order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner."

After service of summons, reply to the election petition has

been filed by the respondent No.1-returned candidate raising

preliminary objections to the maintainability of the election

petition, inter alia, indicating that as on the date of scrutiny of the

nomination forms, the petitioner was admittedly not in possession

(5 of 16) [EP-6/2019]

of certificate required under provisions of Section 9(2) and 33(3)

of the Act, the petitioner was disqualified to contest the election

and his nomination paper was rightly rejected. It was prayed that

the petition be dismissed.

The ECI, New Delhi and Chief Electoral Officer, State Election

Commission, respondents No. 2 and 3 respectively, though their

presence were not necessary in the present petition in view of the

judgments of Hon'ble Supreme Court in the case of Jyoti Basu &

Ors. v. Debi Ghosal & Ors.: (1982) 1 SCC 691; B. Sundra Rami

Reddy v. Election Commission & Ors.: (1991) Suppl.(2) SCC 624

and Micheal Fernandeas v. C.K. Jaffar Sharif & Ors.: AIR 2002 SC

1041, filed the reply, contesting the averments made in the

present election petition.

The respondent No.4-Returning Officer also filed a reply to

the petition again contesting the averments made in the petition.

The petitioner filed rejoinders to the replies filed.

Based on the pleadings of the parties, the following issues

were framed by the Court on 13.01.2020:-

"(1) Whether the nomination of the petitioner was improperly rejected?

(2) Whether the election petition is liable to be rejected on account of admitted non-compliance of provisions of sub-section (3) to Section 33 of the Representation of the People Act, 1951?

(3) Relief?"

After the issues were framed, counsel for the respondent

No.1 filed an application under Order XIV, Rule 2 CPC seeking

decision on preliminary issue No.2.

On 27.01.2020, counsel for the respondent No.1 submitted

that insofar as existence of the documents filed alongwith the

(6 of 16) [EP-6/2019]

election petition were concerned, they were not in dispute and the

respondent No.1 admits the existence of the said documents and

as the petitioner has only indicted in the list of witnesses that the

witnesses are required for formal proof, the said necessity has

come to an end.

Whereafter, an application came to be filed by the petitioner

under Order XIV, Rule 5 CPC seeking framing of additional issues.

Arguments were heard on both the applications, one filed by

the respondent No.1 under Order XIV, Rule 2 CPC and another

filed by the petitioner under Order XIV, Rule 5 CPC and by order

dated 18.03.2020 while the application filed by the petitioner

under Order XIV, Rule 5 CPC was rejected, the application under

Order XIV, Rule 2 CPC filed by the respondent No.1 was allowed

and it was directed that the issues framed by the Court on

13.01.2020 shall be determined by the Court based on the

pleadings and documents filed by the parties on account of the

admission of existence of the documents annexed with the

election petition by the respondent No.1.

It is submitted by learned counsel for the petitioner that the

nomination form of the petitioner was wrongly rejected by the

Returning Officer and as such, the petition was liable to be

accepted in view of the provisions of Section 100(1)(c) of the Act.

Submissions were made that onus to issue the certificate

was on the ECI, where the petitioner had approached in time by

filing application on 01.04.2019 i.e. before the elections were

notified by notification dated 02.04.2019 and efforts were made

by the petitioner for issuance of the certificate so much so that

(7 of 16) [EP-6/2019]

even on the date of scrutiny i.e. 10.04.2019, the petitioner sent a

Fax to the ECI, however, the certificate was not issued, malafidely.

It is submitted that the petitioner had to file writ petition

before the Court, wherein order was passed on 12.04.2019,

pursuant thereto, the certificate (Annex.-14) was issued under

Section 33(3) of the Act to the petitioner indicating that the

charge proved against him does not involve 'corruption' or

'disloyalty to State', which clearly shows that he petitioner fulfills

the eligibility to contest the election in terms of Section 33(3) of

the Act.

It was again emphasized that it was ECI, who was required

to issue the certificate, which did not issue the same despite

efforts made in this regard and, therefore, it cannot take benefit

of its own wrong, which has resulted in improper rejection of

petitioner's nomination paper.

With reference to the sequence of events starting with

petitioner's application for issuance of requisite certificate on

01.04.2019 (Annex.-2) till the issuance of certificate on

15.04.2019 (Annex.-14), it was alleged that the certificate was not

issued malafidely, inasmuch as, though the application was made

to the ECI, the same was wrongly forwarded to the State Election

Commission, which again forwarded it back to the ECI, on which

deliberately no action was taken and when the petitioner again

made a fresh application on 11.04.2019 after rejection of his

nomination for Barmer Parliamentary Constituency on 10.04.2019,

when an order was passed by the High Court to pass a speaking

order before 16.04.2019, the requisite certificate was issued on

15.04.2019, which necessarily means that if the ECI had acted

(8 of 16) [EP-6/2019]

bonafide, it could have issued the certificate by 05.04.2019 and as

the nomination of the petitioner has been rejected only on account

of provisions of Section 33(3) of the Act, the rejection of

nomination paper is ex-facie wrong and, therefore, the petition

deserves acceptance.

With reference to the order of the Returning Officer rejecting

the nomination form of the petitioner, it was submitted that the

Returning Officer is representative of the ECI and as the ECI had

failed to issue the requisite certificate, the Returning Officer, could

not have rejected the nomination form.

Further submissions were made that as the respondent No.1

has admitted the documents filed by the petitioner, the allegations

made therein also stands admitted and, consequently, as the

rejection of the nomination form is on account of the malafides of

the ECI, the petition, deserves to be accepted and the election of

the respondent No.1 deserves to be set aside.

Learned counsel for the respondent No.1 vehemently

opposed the submissions. It was submitted that the provisions of

Section 100(1)(c) of the Act provides for ground for declaring

election to be void if the nomination has been improperly rejected.

Admittedly, the petitioner was required to produce certificate

under Section 33(3) of the Act alongwith his nomination form,

which was admittedly missing and as such, the Returning Officer

had no option but to reject the nomination form and as such, it

cannot be said that the nomination of the petitioner has been

wrongly rejected.

Submissions were made that the allegations sought to be

made regarding the ECI malafidely not issuing the certificate,

(9 of 16) [EP-6/2019]

cannot be subject matter of scrutiny in the present election

petition. The Court is only required to examine as to whether the

nomination of the petitioner was wrongly rejected.

Further submissions were made that any subsequent event

of issuance of certificate, cannot nullify the order passed by the

Returning Officer, inasmuch as, the relevant date for the purpose

is date of scrutiny and as admittedly on the said date, there was

no certificate available as envisaged by Section 33(3) of the Act,

the nomination was rightly rejected.

It was submitted that the petitioner was seeking to distort

the submissions made by the respondent No.1, inasmuch as, the

respondent No.1 in his submissions made before the Court on

27.01.2020 had specifically admitted the existence of the

documents and had not admitted the contents therein and in view

thereof, submissions made seeking to claim that the respondent

No.1 has admitted the allegations of malafide made in the

documents are untenable. It was prayed that the election petition

be dismissed.

Reliance was placed on judgments in K. Prabhakaran v. P.

Jayarajan : (2005) 1 SCC 754 and Narendra Singh Bhati v. Ram

Narain Bishnoi : AIR 1993 Raj. 130.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The issues, framed by the Court as noticed hereinbefore

pertain to whether nomination of the petitioner was improperly

rejected and whether the petition was liable to be rejected on

account of admitted non-compliance of provisions of Section 33(3)

of the Act.

(10 of 16) [EP-6/2019]

The facts are not in dispute, wherein as the petitioner, who

was serving as an IPS Officer, was dismissed from service by order

dated 19.02.2019 on account of violation of provisions of the

Conduct Rules, 1968.

Provisions of Section 9, 33(3) and 36 of the Act insofar as

relevant read as under:-

"9. Disqualification for dismissal for corruption or disloyalty.-

(1) A person who having held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal.

(2) For the purposes of sub-section (1), a certificate issued by the Election Commission to the effect that a person having held office under the Government of India or under the Government of a State, has or has not been dismissed for corruption or for disloyalty to the State shall be conclusive proof of that fact:

Provided that no certificate to the effect that a person has been dismissed for corruption or for disloyalty to the State shall be issued unless an opportunity of being heard has been given to the said person.

33. Presentation of nomination paper and requirements for a valid nomination.-

(1) .................................... (2) .................................... (3) Where the candidate is a person who, having held any office referred to in (section 9) has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

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

(11 of 16) [EP-6/2019]

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 objection 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) ...........................

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

Dealing with the above provisions, Hon'ble Supreme Court in

S.M. Banerji v. Krishna Agarwal : AIR 1960 SC 368, after noticing

the provisions, inter alia, observed as under:-

"7. The foregoing provision, so far relevant to the present enquiry, may be summarised thus : If a candidate has been dismissed from the Government service and a period of five years has not elapsed since the dismissal, he will have to file along with the nomination paper a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State. If it has not been done, the Returning Officer, either suo motu or on objections raised by the opposite party, has to reject the nomination. If the nomination paper does not disclose any such defect and if the Returning Officer has no knowledge of that fact, he has no option but to accept the nomination."

(emphasis supplied)

From the above provisions as well as the pronouncement of

Hon'ble Supreme Court, it is apparent that a candidate, who has

been dismissed from government service, will have to file

alongwith the nomination form a certificate issued by the ECI to

the effect that he has not been dismissed for 'corruption' or

'disloyalty to State' and if it has not been done, the Returning

(12 of 16) [EP-6/2019]

Officer, either suo motu or on objections raised by the opposite

party, has to mandatorily reject the nomination.

The Returning Officer on the date of scrutiny, inter alia,

passed the following order:-

"Scrutiny of nomination paper (S.No. 11/HP/2019/RO)

Sh. Pankaj Kumar Choudhary

 Section 36(2) and 36(2)(b) of RP Act 1951 says that Returning Officer (RO) may reject any nomination paper or his own motion if there has been a failure to comply with any of the provision of Section 33 of RP Act, 1951.

 I am aware of the fact that candidate Sh. Pankaj Kumar Choudhary has been dismissed from Indian Police Service (IPS) vide order of an even number No. 26011/61/2016-IPS-II dated 19 Feb 2019 of Ministry of Home Affairs, Government of India (copy enclosed).

 Section 33(3) read with Section 9 of RP Act, 1951 says that a person, who hold an office under Government of India, has been dismissed and a period of 5 years has not elapsed since the dismissal, shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

 In the present case, candidate Sh. Pankaj Kumar Choudhary was dismissed in the year 2019 (5 years have not elapsed since his dismissal) and the nomination paper (S.No.11/HP/2019/RO) submitted by him on dt. 08/04/2019 did not accompany the required certificate of ECI as mentioned in Section 33(3). So he cannot be deemed to be duly nominated under Section 33(3).

 Candidate Sh. Pankaj Kumar Choudhary is present today during the scrutiny of nomination papers (dt 10/04/19). He presented his case before the undersigned that he has personally appeared before the Election Commission of India on 01/04/2019 and requested for the issuance of the certificate. He also presented that ECI officials during his meeting have assured him that this is a rarest of the rare case and necessary directions will be issued by ECI to CEO Rajasthan and RO Barmer-17 PC. He also informed that he has mailed his representation to ECI, CEO Rajasthan and RO Barmer.

I am totally convinced that the onus of submitting the certificate lies entirely on the candidate Sh. Pankaj Kumar Choudhary and a failure to do so (while submitting his nomination paper) clearly violates the provisions of section 33(3). So I am convinced that in the absence of

(13 of 16) [EP-6/2019]

the certificate the nomination paper in not duly nominated and hence under Section 36(2)(b), I, Himanshu Gupta (RO-Barmer-17PC) reject the nomination paper (S.No.11/HP/2019/RO) on the above mentioned grounds.

DATE: 10/04/2019"

From what has been noticed hereinbefore based on the

averments made in the election petition as well as the submissions

made on behalf of the petitioner, it is apparent that the

nomination filed by the petitioner, did not accompany the

mandatory certificate as envisaged under Section 33(3) of the Act

and as such, the Returning Officer had no option, but to reject the

nomination filed by the petitioner and it cannot be said that the

nomination was wrongly rejected. It is also not the case of the

petitioner that any such certificate was in existence as on the date

of the scrutiny of the nominations.

The point of time for judging the qualification/

disqualification of returned candidate and other candidate in an

election under the Act, has been considered by Hon'ble Supreme

Court in the case of K. Prabhakaran (supra), wherein it was, inter

alia, laid down as under:-

"30. Under sub-clause (i) of clause (d) of sub- section (1) of Section 100 of RPA the improper acceptance of any nomination is a ground for declaring the election of the returned candidate to be void. This provision is to be read with Section 36(2)(a) which casts an obligation on the returning officer to examine the nomination papers and decide all objections to any nomination made, or on his own motion, by reference to the date fixed for the scrutiny of the nominations. Whether a candidate is qualified or not qualified or is disqualified for being chosen to fill the seat, has to be determined by reference to the date fixed for the scrutiny of nomination. That is the focal point. The names and number of candidates who will be in the fray is determined on the date of the scrutiny of the nomination papers and the constituency goes to polls. Obviously, the decision by the returning officer has to be taken on the facts as they exist on that day. The decision must be

(14 of 16) [EP-6/2019]

accompanied by certainty. The returning officer cannot postpone his decision nor make it conditional upon what may happen subsequent to that date. Under Section 100(1)(d)(i) of the Act the High Court has to test the correctness of the decision taken by the returning officer and the fact whether any nomination was improperly accepted by reference to the date of the scrutiny of the nomination as defined in Section 36(2)(a). An election petition is heard and tried by a court of law. The proceedings in election petition are independent of the election proceedings which are held by the executive. By no stretch of imagination can the proceedings in election petition be called or termed as continuation of election proceedings. The High Court trying an election petition is not hearing an appeal against the decision of the returning officer or declaration of result of a candidate.

31. With respect to the learned Judges who decided Mani Lal case the fallacy with which the judgment suffers is presumably an assumption as if the election petition proceedings are a continuation of the election proceedings. Yet, another fallacy with which the judgment, in our humble opinion, suffers is as if the High Court has to form opinion on the disqualification of a candidate at the time of pronouncing the judgment in the election petition. That is not correct. Undoubtedly, the High Court is forming an opinion on the date of judgment in the election petition but that opinion has to be formed by reference to the date of scrutiny, based not on such facts as can be fictionally deemed to have existed on a back date dictated by some subsequent event, but based on the facts as they had actually existed then, so as to find out whether the returning officer was right or wrong in his decision on scrutiny of nomination on that date i.e. the date of scrutiny. The correctness or otherwise of such decision by the returning officer cannot be left to be determined by any event which may have happened between the date of scrutiny and the date of pronouncement of the judgment by the High Court."

(emphasis supplied)

It was laid down by Hon'ble Supreme Court that the decision

by the Returning Officer has to be taken on the facts as they exist

on the date of scrutiny, the Returning Officer cannot postpone his

decision nor make it conditional upon what may happen

subsequent to that date and, therefore, merely because

subsequently the certificate was issued by the ECI albeit after

order was passed by this Court in a writ petition filed by the

petitioner, inter alia, claiming that the certificate was required for

contesting elections to Bikaner Parliamentary Constituency, where

(15 of 16) [EP-6/2019]

the last date of scrutiny was 16.04.2019, cannot be of any

consequence insofar as the rejection of petitioner's nomination by

the Returning Officer on the date of scrutiny i.e. 10.04.2019 is

concerned.

The various submissions made by the petitioner, seeking to

allege malafides against the ECI and questioning the action of the

ECI in not issuing the certificate by labelling it unjust and arbitrary

cannot essentially form the subject matter of an election petition

under the Act. As noticed hereinbefore, the petitioner has, inter

alia, sought relief against the ECI for issuing certificate for

contesting the election to Barmer Parliamentary Constituency.

Hon'ble Supreme Court in Thampanoor Ravi v. Charupara

Ravi & Ors.: (1999) 8 SCC 74, inter alia, laid down the parameters

pertaining to High Courts' jurisdiction while trying an election

petition, as under:-

"Under Article 329(b) of the Constitution no election to a legislature shall be called in question except by an election petition presented to such authority and in such manner as may be provided by or made by the appropriate legislature. Under Section 80-A of the RP Act, the forum for adjudication of an election petition is the High Court. The scope of this provision is considered by this Court in Upadhyaya Hargovind Devshanker v. Dhirendrasinh Varbhadrasinhji Solanki. In that decision, the question was whether an order made on an interlocutory application in an election petition could be the subject of a Letters Patent Appeal. It was observed in that decision that conferment of power under the RP Act to try any election petition does not amount to enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable under the RP Act is a special jurisdiction conferred of the High Court by virtue of Article 329(b) of the Constitution. Therefore, even though the High Court may otherwise exercise ordinary and extraordinary jurisdiction it would be difficult to envisage a situation that while trying an election petition in exercise of the jurisdiction conferred by the RP Act it can adjudicate upon the vires of the RP Act or any rule or order made thereunder and the election petition has to be tried in accordance with the provisions of the RP Act and thus the court cannot entertain and pronounce upon

(16 of 16) [EP-6/2019]

matters which do not fall within the ambit of Section 100 of the RP Act."

(emphasis supplied)

As such, the entire emphasis laid by the petitioner seeking to

allege malafides against the ECI in not issuing the requisite

certificate in time and to claim that as the Returning Officer is

representative of the ECI, they cannot take benefit of their own

wrong, is of no consequence as while trying the election petition

under the provisions of the Act, the said aspect essentially, cannot

be determined by this Court. The jurisdiction of this Court in the

present case is confined to examine as to whether the nomination

of the petitioner was wrongly rejected. Qua the said aspect,

allegations made against the ECI, cannot come to the aid of the

petitioner.

In view of the above discussion, it is apparent that in view of

the express provisions of Section 33(3) of the Act, for lack of

requisite certificate issued by the ECI, the petitioner was

disqualified to contest the election and, therefore, it cannot be

said that the Returning Officer wrongly rejected the nomination of

the petitioner for Barmer Parliamentary Constituency on

10.04.2019.