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Tuesday, May 27, 2014

REJECTION OF NOMINATION PAPERS - FOR NON FILING OF ELECTORAL ROLL AS HE BELONGS TO ANOTHER CONSTITUENCY - HIGH COURT SET ASIDE THE ELECTION OF RETURNED CANDIDATE AND REINSTATED THE PETITIONER ON THE GROUND NO ONE FILED - APEX COURT HELD THAT HIGH COURT DID WRONG . AS PER SEC.33 (5) ANOTHER CONSTITUTION PERSON IF CONTESTED HAS TO FILE ELECTORAL ROLL OF LATEST - HELD THAT accordingly, we set aside the judgment of the High Court, treat the election of the appellant as valid and further direct that the appellant shall get the entire remuneration for the period for which he was elected as a member of the legislative Council and we say so on the basis of the Constitution Bench decision in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].= Balram Singh Yadav@ Balram Yadav … Appellant Versus Abhay Kumar Singh …Respondent = 2014 (May. Part) http://judis.nic.in/supremecourt/filename=41545

 REJECTION OF NOMINATION PAPERS - FOR NON FILING OF ELECTORAL ROLL AS HE BELONGS TO ANOTHER CONSTITUENCY - HIGH COURT SET ASIDE THE ELECTION OF RETURNED CANDIDATE AND REINSTATED THE PETITIONER ON THE GROUND NO ONE FILED  - APEX COURT HELD THAT HIGH COURT DID WRONG  . AS PER SEC.33 (5) ANOTHER CONSTITUTION PERSON IF CONTESTED HAS TO FILE ELECTORAL ROLL OF LATEST - HELD THAT accordingly, we set aside the  judgment of the High Court, treat the election of the appellant  as  valid  and further direct that the appellant shall get  the  entire  remuneration for the period for which he was elected as a member of the legislative Council and we say so on the basis of the Constitution Bench  decision  in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].=

The  Returning  Officer,   while
      accepting the nomination papers of all the  candidates,  rejected  the
      nomination paper of the respondent on the ground that he had not filed
      the relevant electoral roll which was required  to  be  done,  for  he
      belonged to another constituency.=

   Section 33(5) of the Act is seemly.  It reads as follows:
      -


           “”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.”


      14.   The said provision came to be interpreted in B. Dandapani  Patra
      v.  Returning  Officer-cum-Sub-Divisional   Officer,   Berhampur   and
      others[3], wherein a two-Judge Bench placed reliance on  Ranjit  Singh
      v. Pritam Singh[4] and came to hold as follows: -


           “… it has been held that when Section  33(5)  of  the  said  Act
           refers to a copy of the relevant part of the electoral roll,  it
           means a part as defined in Rule 5 of the  said  Rules  of  1960.
           The complete copy would carry the various amendments made in the
           roll to enable the Returning Officer to see whether the name  of
           the candidate continues in the roll.”


      15.   The facts of the aforesaid decision would show that  
unless  the
      current electoral roll is filed along with the nomination paper,  that
      would tantamount to non-compliance of Section 33(5) of  the  Act.   
In
      the instant case, on a perusal of evidence  of  PW-1,  the  respondent
      herein, and the Returning Officer, it is  perceptible  that  the  said
      respondent had not filed the electoral roll  of  1998  which  was  the
      latest electoral roll as on 1.1.2002.  
On the date  of  scrutiny,  the respondent was absent.  

The High Court, as noticeable, has referred to
      the order of rejection of nomination paper by  the  Returning  Officer
      and opined that none had filed the electoral  roll  of  1.1.2002  and,
      therefore, the nomination paper could not  have  been  rejected.   
The
      aforesaid view is the resultant of erroneous perception of fact.   
The
      ground that was indicated by the Returning Officer was that the  valid
      electoral roll as on 1.1.2002 had not been filed.  It has come in  the
      evidence that no electoral roll was prepared  on  that  date  and  the
      latest electoral roll was that of 1998.  The respondent had not  filed
      the same.   In fact, he had filed the electoral roll of 1995.   It  is
      also clear from the evidence that at the time of scrutiny, he was  not
      present.


      16.   In view of the foregoing analysis, we have no scintilla of doubt
      that the High Court has fallen into serious error by setting aside the
      election of the appellant and, 
accordingly, we set aside the  judgment
      of the High Court, treat the election of the appellant  as  valid  and
      further direct that the appellant shall get  the  entire  remuneration
      for the period for which he was elected as a member of the legislative
      Council and we say so on the basis of the Constitution Bench  decision
      in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].


      17.   The appeal is accordingly allowed.  There shall be no  order  as
      to costs.
2014 (May. Part) http://judis.nic.in/supremecourt/filename=41545
DIPAK MISRA, N.V. RAMANA
                                                           Reportable


                       IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 888 OF 2009


      Balram Singh Yadav@ Balram Yadav                    … Appellant


                                   Versus


      Abhay Kumar Singh                                      …Respondent


                               J U D G M E N T
      Dipak Misra, J.
            In this appeal, the question that is required to  be  determined
      is whether the High Court by  the  order  impugned  was  justified  in
      invalidating the election of the appellant who was elected as a member
      of Bihar Legislative Assembly in the election held on 10.7.2003.
      2.    Bereft of unnecessary details, the facts which are essential  to
      be stated are that the respondent filed  his  nomination  paper  along
      with fifty others to enter into the contest as  the  member  of  Bihar
      Legislative Council  from  20-Saharsha-cum-Medhepura-cum-Supaul  Local
      Authority  Election  Constituency.    The  Returning  Officer,   while
      accepting the nomination papers of all the  candidates,  rejected  the
      nomination paper of the respondent on the ground that he had not filed
      the relevant electoral roll which was required  to  be  done,  for  he
      belonged to another constituency.
      3.    After the election was over, the respondent instituted  Election
      Petition No.  4  of  2003  in  the  High  Court  of  Patna  seeking  a
      declaration that rejection of his nomination paper was  incorrect  and
      inappropriate, and hence, the election of the  elected  candidate  was
      void.  Challenge to the rejection was based  on  two  counts,  namely,
      that he had filed the requisite voters’  list  as  contemplated  under
      Section 33(5) of the Representation  of  the  People  Act,  1951  (for
      brevity, ‘the Act’) and second, the Returning Officer, at the time  of
      scrutiny, had not pointed out the defect  to  him  for  which  he  was
      deprived of the opportunity of rectifying the mistake.
      4.    In the election petition it was asseverated that  the  Returning
      Officer accepted the electoral roll for other candidates for the  year
      1998, but as far as the respondent was concerned, there was insistence
      for production of the valid electoral roll as on  1.1.2002  which  was
      not essential.  The  stand  and  stance  put  forth  by  the  election
      petitioner was seriously controverted by the present appellant on many
      a ground including the one that in the absence of any pleadings in the
      petition to substantiate the fact his contesting in the election would
      have materially affected the results of  the  election,  the  election
      petition was totally devoid of any substance.
      5.     The  High  Court  framed  the   following   four   issues   for
      adjudication:
           “(1)  Whether this election petition, as framed is maintainable?
           (2)   Whether this election petition is vitiated by  non-joinder
                 of necessary parties?
           (3)    Whether  the  nomination  paper  of  the  petitioner  was
                 improperly rejected by the Returning Officer?
           (4)   Whether the  petitioner  is  entitled  to  any  relief  or
                 reliefs?”


      6.    Both the  parties  adduced  oral  evidence  and  marked  certain
      documents as exhibits.  The High Court treated  issue  No.  3  as  the
      principal issue and the issue No.  4  as  consequential  to  it.   The
      respondent brought on record the order  of  rejection  passed  by  the
      Returning Officer as Ext. P-2.  There was no dispute before  the  High
      Court that the first respondent did not  belong  to  the  constituency
      and, therefore, he was required to comply with Section 33(5)  of  Act.
      The High Court, adverting to the said aspect, observed as follows: -
           “Petitioner does not deny that he had filed an extract  of  1995
           electoral roll and even in the electoral roll of 1998  the  Part
           and Serial  Number  where  the  petitioner’s  name  figured  was
           identical.  If the Returning Officer had bothered  to  turn  the
           pages of 1998 electoral roll at the time of  scrutiny  then  the
           above declaration of the  petitioner  in  the  nomination  paper
           would have stood verified and corroborated.  But then the reason
           for rejection of the nomination of the petitioner  is  not  that
           the petitioner had not annexed 1998 electoral roll.  The  reason
           assigned is that he did not have the Aharta as on  1.1.2002  and
           he had not annexed Styapit (certified) extract of the  electoral
           roll in the regard.”


      7.    Thereafter, considering the oral evidence, the High Court opined
      thus: -
           “The Court also decides to have a look  at  the  oral  evidences
           which have been adduced on  this  score.   Five  witnesses  were
           produced on behalf of the petitioner.  P.W. 1 is the  petitioner
           himself where he has stated that he was one  of  the  candidates
           for the “Constituency” of the Local Body and was a voter of 110-
           Raghopur Assembly Constituency.  He stated that  his  nomination
           papers were illegally rejected.  He filed two sets of nomination
           papers which were duly signed by him and his proposers.  In  one
           of the nomination papers a detailed  reason  for  rejection  was
           recorded but in the second nomination paper the  word  “Aswikrit
           Karta Hun” (rejected) only  mentioned.   He  has  furnished  the
           details of his name, the Part and  the  Serial  Number  of  110-
           Raghopur Assembly Constituency which is reflected in  the  voter
           list of 1998.  His name figured at serial no. 444  in  Part  11.
           He also states that a demand of voter list for  the  year,  2002
           was made from him orally but there was no voter list of the year
           available to his knowledge.  He also denied that he had received
           any kind of memo much less memo no. 10.  He does accept that  he
           was personally not present at the time of scrutiny  but  he  had
           authorized one Sri Prabhakar Singh, Advocate to  participate  in
           the same but he was not allowed to go to the place of scrutiny.”

      8.    We have heard Mr. Nagendra Rai, learned senior counsel  for  the
      appellant.  Despite service of  notice,  there  is  no  appearance  on
      behalf of the respondent.

      9.    To appreciate the controversy from a proper perspective,  it  is
      apposite to refer to Section 100 of the Act.  It reads as follows:-
           “100. Grounds for declaring election to be void.- (1) Subject to
           the provisions of sub-section  (2)  if  the  High  Court  is  of
           opinion-
           a) that on the date of his election a returned candidate was not
              qualified, or was disqualified, to be chosen to fill the seat
              under the Constitution or this Act or the Government of Union
              Territories Act, 1963 (20 of 1963); or



           b) that any corrupt practice has been committed  by  a  returned
              candidate or his election agent or by any other  person  with
              the consent of a returned candidate or his election agent; or



           c) that any nomination has been improperly rejected; or



           d) that the result of the election, in so far as it  concerns  a
              returned candidate, has been materially affected –



                    i) by the improper acceptance of any nomination, or


                   ii) by any corrupt practice committed in the interests of
                       the returned candidate by an  agent  other  than  his
                       election agent, or


                  iii) by the improper reception, refusal  or  rejection  of
                       any vote or the reception of any vote which is  void,
                       or


                   iv) by any non-compliance  with  the  provisions  of  the
                       Constitution or of this Act or of any rules or orders
                       made under this Act,
           the High Court  shall  declare  the  election  of  the  returned
           candidate to be void.”


      10.   Be it stated, before this  provision  was  incorporated  by  the
      Representation of  the  People  (2nd  amendment)  Act,  1956,  Section
      100(1)(c) read as follows:-
           “If the Tribunal is of opinion that the result of  the  election
           has been materially  affected  by  the  improper  acceptance  or
           rejection of any nomination,  the  Tribunal  shall  declare  the
           election to be wholly void.”


           Interpreting the  said  provision,  the  Constitution  Bench  in
      Surendra Nath Khosla and another v. S. Dalip Singh and others[1] ruled
      thus:-
           “It appears that though the words of the section are in  general
           terms with equal application to the case of improper acceptance,
           as also of improper rejection of a nomination  paper,  case  law
           has made a distinction between the two classes of cases. So  far
           as the latter class of cases is concerned, it may be pointed out
           that almost all the  Election  Tribunals  in  the  country  have
           consistently taken the view that 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 candidates 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.
           By keeping out such a desirable candidate, the officer rejecting
           the nomination paper may have prevented the electors from voting
           for the best candidate available. 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 Section 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. For the reasons aforesaid, in our  opinion,
           the majority decision on the fourth issue is also correct.”


      11.   After the amendment, a three-Judge Bench in Mahadeo v. Babu Udai
      Partap Singh  and  others[2],  after  referring  to  the  decision  in
      Surendra Nath Khosla (supra), opined as follows:-


           “11. This position has now been  clarified  by  the  Legislature
           itself by amending S. 100 in 1956. The amended S. 100(1)(a), (b)
           and (c) refer to three classes of cases where  the  election  is
           set aside on proof of facts  enumerated  in  the  said  clauses.
           Clause (a) refers to a case where a returned candidate  was  not
           qualified, or was disqualified, to be chosen to  fill  the  seat
           under the Constitution or this Act at the date of his  election.
           As soon as this fact is  proved,  his  election  is  set  aside.
           Similarly, under Cl. (b), if any corrupt practice  is  shown  to
           have been committed by a  returned  candidate  or  his  election
           agent or by any other person with  the  consent  of  a  returned
           candidate or his election agent, the election  of  the  returned
           candidate is set aside and  declared  void.  Likewise,  Cl.  (c)
           provides that the election of  a  returned  candidate  shall  be
           declared void if it  is  shown  that  any  nomination  has  been
           improperly rejected. It would thus be seen that the  view  which
           the Election Tribunals and  the  Courts  had  been  consistently
           taking in dealing with the question  about  the  effect  of  the
           improper rejection of any nomination paper, has  been  confirmed
           by the Legislature and now, the position is that if it is  shown
           that at any election, any nomination paper has  been  improperly
           rejected, the improper rejection  itself  renders  the  election
           void without any further proof about the material effect of this
           importer rejection.”



      12.   In view of the abovestated enunciation of  law,  the  submission
      that there was no pleading and no evidence was  adduced  to  establish
      that the election of the elected candidate was materially affected, is
      sans substance.  Once the court  comes  to  the  conclusion  that  the
      nomination paper had been improperly rejected, it is obliged in law to
      declare the election void.


      13.   Presently, we shall proceed to deal with the issue  whether  the
      High Court was justified in accepting the plea of the respondent  that
      his  nomination  paper  was  improperly  rejected.   In  this  regard,
      reference to Section 33(5) of the Act is seemly.  It reads as follows:
      -


           “”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.”


      14.   The said provision came to be interpreted in B. Dandapani  Patra
      v.  Returning  Officer-cum-Sub-Divisional   Officer,   Berhampur   and
      others[3], wherein a two-Judge Bench placed reliance on  Ranjit  Singh
      v. Pritam Singh[4] and came to hold as follows: -


           “… it has been held that when Section  33(5)  of  the  said  Act
           refers to a copy of the relevant part of the electoral roll,  it
           means a part as defined in Rule 5 of the  said  Rules  of  1960.
           The complete copy would carry the various amendments made in the
           roll to enable the Returning Officer to see whether the name  of
           the candidate continues in the roll.”


      15.   The facts of the aforesaid decision would show that  unless  the
      current electoral roll is filed along with the nomination paper,  that
      would tantamount to non-compliance of Section 33(5) of  the  Act.   In
      the instant case, on a perusal of evidence  of  PW-1,  the  respondent
      herein, and the Returning Officer, it is  perceptible  that  the  said
      respondent had not filed the electoral roll  of  1998  which  was  the
      latest electoral roll as on 1.1.2002.  On the date  of  scrutiny,  the
      respondent was absent.  The High Court, as noticeable, has referred to
      the order of rejection of nomination paper by  the  Returning  Officer
      and opined that none had filed the electoral  roll  of  1.1.2002  and,
      therefore, the nomination paper could not  have  been  rejected.   The
      aforesaid view is the resultant of erroneous perception of fact.   The
      ground that was indicated by the Returning Officer was that the  valid
      electoral roll as on 1.1.2002 had not been filed.  It has come in  the
      evidence that no electoral roll was prepared  on  that  date  and  the
      latest electoral roll was that of 1998.  The respondent had not  filed
      the same.   In fact, he had filed the electoral roll of 1995.   It  is
      also clear from the evidence that at the time of scrutiny, he was  not
      present.


      16.   In view of the foregoing analysis, we have no scintilla of doubt
      that the High Court has fallen into serious error by setting aside the
      election of the appellant and, accordingly, we set aside the  judgment
      of the High Court, treat the election of the appellant  as  valid  and
      further direct that the appellant shall get  the  entire  remuneration
      for the period for which he was elected as a member of the legislative
      Council and we say so on the basis of the Constitution Bench  decision
      in Kirpal Singh, M.L.A. v. Uttam Singh and another[5].


      17.   The appeal is accordingly allowed.  There shall be no  order  as
      to costs.



                                                               ………………………..J.
                                                               [Dipak Misra]




                                                               ………………………..J.
                                                               [N.V. Ramana]
      New Delhi;
      May 13, 2014.



-----------------------
[1]    AIR 1957 SC 242
[2]    AIR 1966 SC 824
[3]    (1990) 1 SCC 505
[4]    (1996) 3 SCR 543
[5]    (1985) 4 SCC 621

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