Narendra Singh Kushwaha v. Anand Mohan Singh — 1998 DIGILAW 616 (PAT)

JUDGMENT Naresh Kumar Sinha, J. The election petitioner prays that the election of the respondent from 234, Nokha Assembly Constituency held in March, 1995 be declared void on the ground of improper rejection of his nomination. 2. The petitioner claims to be a famous social worker and General Secretary of the Samta Party. His case is that by a notification issued on 16.1.95 the programme of Assembly elections in Bihar had been announced. The nomination papers were to be filed from 16.1.95 to 23.1.95 and 24.1.95 was fixed for scrutiny of the nomination papers. The petitioner filed his nomination paper on 23.1.95 from 234 Nokha Assembly Constituency at Sasaram (hereinafter the 'Constituency') before the Returning Officer. His nomination paper was rejected on 24.1.95 under section 10A of the Representation of the People Act, 1951 (hereinafter the 'Act') by the Returning Officer on the ground that his name appeared in the list of disqualified candidates prepared by the Election Commission of India. The election for the Assembly was held on 15.3.95 and the respondent a candidate of the Janata Dal and others were permitted to contest the election whereas the petitioner was illegally and with malafide intention debarred from contesting the same. The respondent was declared elected for the Constituency on 2.4.95. The petitioner has, therefore, filed this application under section 80-A and 81 (1) of the Act read with Article 329(b) of the Constitution of India for declaring the election from the Constituency to be void on the grounds that the petitioner had never been disqualified by the Election Commission under section 10A of the Act and that the Returning Officer had illegally rejected his nomination paper on false and imaginary basis. The petitioner has prayed for the following reliefs : (i) It may be adjudicated that the petitioner has not been declared disqualified under section 10(A) of the Representation of People Act, 1951, nor he could have been declared disqualified. (ii) It may further be adjudicated that the petitioner's nomination paper has illegally been rejected by the concerned Returning Officer from 234 Nokha Assembly Constituency on 24.1.1995 with a malafide intention. (iii) The election for 234 Nokha Assembly Constituency held in the year 1995 be declared void and respondents be directed to issue fresh notification for the aforesaid Constituency election. (iv) Any consequential relief or reliefs may also be granted to the petitioner. (iii) The election for 234 Nokha Assembly Constituency held in the year 1995 be declared void and respondents be directed to issue fresh notification for the aforesaid Constituency election. (iv) Any consequential relief or reliefs may also be granted to the petitioner. (v) Cost of the election petition be awarded to the petitioner. 3. The election petitioner had initially impleaded the Chief Election Commissioner of India (respondent no. 1), the Chief Electoral Officer, Bihar, Patna (respondent no. 2) and the Returning Officer of the Constituency (Respondent no. 3) also besides the returned candidate Anand Mohan Singh as respondent no. 4. Subsequently under orders of the court respondent nos. 1 to 3 were deleted from the category of respondents and the election petition proceeded against the sole respondent Anand Mohan Singh who is being referred to as the respondent. The Returning Officer prior to his name being deleted had filed a written statement. The sole respondent has filed a written statement denying the allegations of the election petitioner. His case is that the name of the election petitioner figured in the list of disqualified candidates under section 10A of the Act prepared by the Election Commission of India and the Returning Officer had no choice whatsoever and was duty bound to reject the nomination of the election petitioner. He has denied that the rejection of the nomination paper on the part of the Returning Officer was deliberate and malafide and had been done under political pressure. On the basis of the pleadings of the parties following issues were settled for adjudication:- 1. Whether the election petition is maintainable in law? 2. Whether the election petition is fit to be dismissed for non-compliance of provisions of sections 81, 82 and 177 of the Representation of People Act, 1951? 3. Whether the allegations contained in election petition are vague and as such liable to be struck of under Order 6 Rule 16 of the Code of Civil Procedure read with section 87 of the Act? 4. Whether the nomination of the petitioner was improperly and illegally rejected by the Returning Officer, if so, is the election of the sole respondent as a Member of the Bihar Legislative Assembly from 234 Nokha Assembly Constituency Election 1995 fit to be declared null and void? 5. 4. Whether the nomination of the petitioner was improperly and illegally rejected by the Returning Officer, if so, is the election of the sole respondent as a Member of the Bihar Legislative Assembly from 234 Nokha Assembly Constituency Election 1995 fit to be declared null and void? 5. Whether the rejection of the nomination paper of the petitioner by the Returning Officer on fictitious and imaginary ground has caused irreparable loss and infringed the fundamental rights of the petitioner to contest the election in question? If so, is the election of the sole respondent void? 6. Whether the acceptance was made by the Secretary of the Election Commission of India that the petitioner was not disqualified at the time of filing of his nomination paper and also at the time of scrutiny of the nomination paper? If so, is the rejection of the nomination paper of the petitioner by the Returning Officer illegal and void? 7. Whether the Election petitioner is entitled to any other relief or reliefs? 4. Both the election petitioner and respondent have entered the witness box and examined themselves as witness in support of their case. The respondent has also examined the Returning Officer. Some documents have also been accepted on behalf of the parties. However, before proceeding to discuss the oral and documentary evidence produced by the parties, it may be mentioned at the very outset that issue Nos. 4, 5 and 7 have only been pressed. In other words learned counsel for both the parties in course of argument have conceded that issue Nos. 1 ,2, 3 and 6 are not being pressed in course of hearing of this election petition. 5. Issue Nos. 4 and 5 Both the issues are inter connected and have therefore been taken together for discussion. There is no dispute between the parties that election petitioner had filed his nomination for contesting the Assembly election from the Constituency in question. He had filed his nomination paper on 23.1.95 before the Returning Officer which was the last date for filing such nomination paper 24.1.95 was the date fixed for scrutiny of nomination papers and on that day the nomination paper of the election petitioner was rejected by the Returning Officer. Narendra Singh Kushwaha (PW. 1) the election petitioner has also stated all this as a witness on oath. He has also proved his nomination paper which is Ext. Narendra Singh Kushwaha (PW. 1) the election petitioner has also stated all this as a witness on oath. He has also proved his nomination paper which is Ext. 1 as also the order of the Returning Officer dated 24.1.95 which is Ext. 1/1/. Ext. 1/1 is to the effect that since the name of the applicant appears against serial no. 1470 of the list of disqualified candidates prepared u/s. 10 A of the Act, the nomination paper of the applicant is being rejected under the said provision of the Act. Sri Sharad Chandra Jha (R.W.1) who was the Returning Officer of the Constituency has stated that Ext. 1/1 is in his hand writing and he has stated the reason for rejection of the nomination paper. The Returning officer further testified that the name of the election petitioner appeared at serial no. 1470 of the list of disqualified candidates sent to him by the Election Commission of India. As a matter of fact the Returning Officer in his order Ext. 1/1 has mentioned these very facts for rejection of the nomination paper. 6. Section 10A of the Act reads as follows :- "10 A. Disqualification for failure to lodge account of election expenses. If the Election Commission is satisfied that a person- (a) has failed to lodge an account of election expense within the time and in the manner required by or under this Act, and (b) has no good reason or justification for the failure, the Election Commission shall by order published in the official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order. The case of the election petitioner is that he had filed his nomination for contesting the election from 234 Nokha Assembly Constituency in the 1990 election but he had withdrawn his candidature on 7.2.90 by the permission of the Returning Officer. The candidature was withdrawn within the prescribed date and time for withdrawal of the candidature. The petitioner, therefore, claims that since he had not contested the election the provisions of section 10A of the Act referred to above were not attracted. The election petitioner was therefore required to lodge account of election expenses on the failure of which the Election Commission could have declared him to be disqualified by an order published in the official Gazette. The election petitioner was therefore required to lodge account of election expenses on the failure of which the Election Commission could have declared him to be disqualified by an order published in the official Gazette. In his evidence the election petitioner stated that the name of one Sri Narendra Singh of Village Tilai district Rohtas had appeared in the list of contesting candidates in the 1990 election. In other words the case of the election petitioner was that the name of the candidate which appeared at serial no. 1470 in the list of disqualified candidates prepared by the Election Commission was not that of the election petitioner but of some one else. This is the only inference that one can possibly draw by reading the election petition as also the testimony of the election petitioner (PW.1). This is also evident from one of the ground taken by the election petitioner in his election petition that the petitioner has never been disqualified by the Election Commission under section 10A of the Act. 7. It is admitted case of the election petitioner (PW.1) that he had sent a fax message to the Chief Election Commissioner on 6.2.90 lodging strong protest over illegal rejection of his nomination paper by the Returning Officer. He has proved his application dated 6.2.95 sent to the Chief Election Commissioner on that date under his signature which is marked Ext. 4. The election petitioner has also proved the office copy of the order dated 26th/28th June 1995 issued under the signature of the Secretary of the Election Commission which is marked Ext. 5. Para 6 of the petitioner's application (Ext.4) clearly mentions that the applicant was not acquainted with the fact that his name has been placed at serial no. 1470 in the list of persons disqualified u/s. 10A of the Representation of the People Act 1951. Para no. 5 which preceded para no. 6 in the said application is also significant. It mentions the fact that another Narendra Singh had contested the election from the Constituency in 1990 as an independent and it seems that by clerical mistake or by conspiracy the 'applicant is treated as disqualified person in the place of that contesting candidate. Para no. 5 which preceded para no. 6 in the said application is also significant. It mentions the fact that another Narendra Singh had contested the election from the Constituency in 1990 as an independent and it seems that by clerical mistake or by conspiracy the 'applicant is treated as disqualified person in the place of that contesting candidate. It is therefore, significant that while making a prayer to the Election Commission to consider the petitioner's case regarding the illegal rejection of his nomination paper and for staying the election from the Constituency which was to be held on 9.3.95 the election petitioner made a further prayer of setting aside the said disqualification. In other words contrary to his pleadings as also his evidence in the court the election petitioner even as early as on 6.2.95 had taken a stand before the Election Commission that his name had been wrongly included in the list of disqualified candidates prepared by the Election Commission of India and it obviously refers to the entry made against serial no. 1470 of the list of disqualified candidates. Ext. 5 which has been filed by the election petitioner and has also been proved by him leaves no room for doubt that the Election Commission of India by its order dated 26th/28th, June, 1995 copy of which has also been addressed to the election petitioner besides the Chief Electoral Officer, Bihar, Patna and the District Election Officer, Rohtas, had removed the disqualification of the election petitioner in the exercise of powers conferred by section 11 of the Act. Section 11 provides that the Election Commission may for reasons to be recorded remove any disqualification under this Chapter or reduce the period of any such disqualification. The order (Ext. 5) read as a whole leaves no room for doubt whatsoever that the election petitioner Sri Narendra Singh R/o village and P.O. Dhangai, district Rohtas was disqualified by the Election Commission by its order No. 76/BR-LA/92 dated 7th July, 1992 issued under section 10A of the Representation of People Act, 1951 for a period of 3 years from the date of the said order for failure to lodge any account of his election expenses as required by the said Act and rules made thereunder. 8. 8. It may be mentioned here and now that the petitioner was previously known as Narendra Singh and he had filed his nomination for contesting the election from the Constituency in the year 1990 by the name of Sri Narendra Singh. It was only subsequently that he had changed his name to Sri Narendra Singh Kushwaha. The Election Commission in its order (Ext. 5) has referred to the fact that it was Sri Narendra Singh R/O village Telai, district Rohtas, who was the contesting candidate from the constituency in 1990 who did not lodge any account of election expenses and who was to be disqualified under the said section 10A of the Act and not Sri Narendra Singh R/O village and P.O. Dhangai. Para 3 of the order clearly mentions that since Sri Narendra Singh resident of village Dhangai, district Rohtas (which obviously refers to the election petitioner) was wrongly disqualified under section 10A of the Act, his disqualification is required to be removed. The Commission thereafter proceeded to pass an order that the disqualification imposed upon the election petitioner by its order dated 7.7.92 shall stand removed with immediate effect. The order also directed that the name of the election petitioner be deemed to be omitted from serial No. 279 of the said order with immediate effect which obviously refers to the order dated 7.7.92. 9. Sri S.N.P. Sharma learned Sr. counsel appearing for the election petitioner in course of argument very fairly conceded that the name of the election petitioner appeared against serial No. 1470 of the list of the disqualified candidates prepared by the Election Commission of India u/s. 10A of the Act. In view of the contents of the order of the Commission (Ext. 5) there is no doubt whatsoever that the name of the election petitioner was included in the list of disqualified candidates prepared by the Commission by order dated 7.7.92. A copy of the said order has not been brought on the record but from the contents of the order (Ext. 5) of the Commission the position is crystal clear that the election petitioner had been disqualified for a period of 3 years from the date of order i.e. 7.7.92. A copy of the said order has not been brought on the record but from the contents of the order (Ext. 5) of the Commission the position is crystal clear that the election petitioner had been disqualified for a period of 3 years from the date of order i.e. 7.7.92. That period would have expired on 7.7.95 and it was only in June, 1995 that the Commission realised the fact that the election petitioner was wrongly disqualified and hence ordered that the said disqualification shall stand removed with immediate effect. Sri Sharma, however, argued that the order of the Election Commission disqualifying the election petitioner was void ab initio and it was fit to be ignored as if it has never been passed. In other words his argument is that the election petitioner had verbally lodged a protest to the Returning Officer to the effect that he had not contested the election from the Constituency in the year 1990 and hence the question of his disqualification u/s. 10 A of the Act did not arise as only candidates contesting the election are required to lodge an account of their election expenses. Sri Ganga Prasad Roy learned Sr. counsel appearing for the respondent, however, argued that the Election Commission had the necessary jurisdiction and if there has been any irregularities in the exercise of such jurisdiction the order passed by the Commission would not be void ab initio as to be a nullity from the very beginning. His further contention was that the Returning Officer was duty bound not to ignore the list of disqualified candidates received by him from the Election Commission and since the name of the election petitioner found mentioned in the said list, the Returning officer was obliged by law to reject the nomination of the election petitioner. 10. This brings us to a consideration as to whether the election petitioner had lodged any protest/objection with the Returning Officer when his nomination was rejected on 24.1.95. PW1 has stated that when his nomination paper was rejected by the Returning Officer he had lodged a strong protest with him. In the cross-examination he conceded that he had lodged the protest verbally and not in writing. The Returning Officer (R.W.1) has denied that the election petitioner had lodged any verbal protest with him. PW1 has stated that when his nomination paper was rejected by the Returning Officer he had lodged a strong protest with him. In the cross-examination he conceded that he had lodged the protest verbally and not in writing. The Returning Officer (R.W.1) has denied that the election petitioner had lodged any verbal protest with him. The sole respondent (R.W.2) has also stated that the election petitioner was present when his nomination paper was rejected but he did not lodge any objection. In para 7 of the election petition it has been stated that the petitioner's election agent and the petitioner himself orally objected to the stand of the Returning Officer and had pleaded that the petitioner's name did not appear in the list of disqualified persons. Thus on the basis of the pleadings of the election petitioner, his election agent had also objected to the rejection of the nomination by the Returning Officer on the ground mentioned above. The election petitioner has not examined the election agent. The evidence of the respondent (R.W.2) that the election petitioner had lodged no objection with the Returning Officer after rejection of his nomination paper finds support from the• testimony of the Returning Officer (R.W.1). R.W1 is an Executive Magistrate. Although the election petitioner had alleged that rejection of his nomination by the Returning Officer was malafide and had been done under pressure from the Government, there is nothing in the cross-examination of R.W.1 suggesting that he had any such bias against the election petitioner or that any undue pressure was brought to bear upon him to reject the nomination. Since there is no reason to disbelieve the Returning Officer (R.W.1), the testimony of the election petitioner that he had verbally protested over the rejection of his nomination paper by the Returning Officer cannot be accepted as true. The Returning Officer has denied the suggestion that he had hastely and arbitrarily rejected the nomination paper of the petitioner without giving him any opportunity. The Returning Officer has denied the suggestion that he had hastely and arbitrarily rejected the nomination paper of the petitioner without giving him any opportunity. Section 36 (2) of the Act provides that the Returning Officer shall examine the nomination paper 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; and clause (a) of section 36 (2) mentions that one of the grounds for rejection is that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions which include part II of the Representation of the People Act. It may be mentioned that section 10A is included in part II of the Act. The Returning Officer appears to have made endorsement Ext. 1/1 on his own motion and had recorded in writing his reason for such rejection as required under section 36(6) of the Act. There was no occasion for the Returning Officer to have taken action u/s. 36(5) of the Act for the election petitioner had not asked for time to rebut the objection raised by the Returning Officer. Thus even assuming that the order of the Election Commission disqualifying the election petitioner was void abinitio, the Returning Officer could not have accepted the nomination an valid ignoring the said order on such ground. The Returning Officer had before him the list of disqualified candidates prepared by the Election Commission. The name of the election petitioner figured therein. No objection either oral or in writing was lodged by the election petitioner or anyone else on his behalf before the Returning Officer and hence the only order that could have been passed was one of rejection of the nomination which in fact the Returning Officer did pass. 11. Assuming that an objection had been raised to the effect that the list of disqualified candidates prepared by the Election Commission was void in so far the inclusion of the name of the election petitioner was concerned, was it within the powers of the Returning Officer to decide the question after making a summary enquiry as provided u/s. 36(2) of the Act? The general scheme u/s. 36 of the Act which provides for scrutiny of nomination and rejection of nomination after a summary enquiry, in my opinion, does not envisage a situation in which the Returning Officer while scrutinising nomination papers could be called upon to ignore an order of the Election Commission as null and void. Such a conclusion is irresistible in view of the provisions of section 36 (5) of the Act which reads as follows:- "36(5). The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjustment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case an objection is raised by the returning officer or is made by any other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned." Under clause (b) of section 30 the date for scrutiny of nominations shall be the day immediately following the last date for making nomination or if that day is a public holiday the next succeeding day which is not a public holiday. By the proviso to sub-section (5) of section 36 the candidate is allowed time to rebut the objection not later than the next day but one following the date fixed for scrutiny. The short time that the law gives to the Returning Officer to conduct his summary enquiry for rejecting a nomination paper even if a candidate wants to rebut an objection raised by the Returning Officer leaves no room for doubt that the Legislature did not intend to cloth the Returning Officer with the power of deciding any question involving a declaration that an order of the Election Commission received by the Returning Officer is void ab initio and that the Returning Officer will be acting within his jurisdiction in ignoring it on that ground. 12. Sri Sharma argued that in essence the election has been called in question on the ground provided under section 100(1)(c) read with section 100 (1)(d)(iv) of the Act. The relevant provisions of section 100 are extracted below. "100. Grounds for declaring election to be void. 12. Sri Sharma argued that in essence the election has been called in question on the ground provided under section 100(1)(c) read with section 100 (1)(d)(iv) of the Act. The relevant provisions of section 100 are extracted below. "100. Grounds for declaring election to be void. - (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (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- (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. Sri Roy, however, disputes this position and contends that the election petition according to the pleadings of the election petitioner as also his evidence in court is confined to the challenge of the election on only one ground namely the improper rejection of the nomination within the meaning of section 100 (1) (c) of the Act. 13. There was some argument at the Bar as to the meaning of the expression "improperly rejected" occurring in section 100(1)(c). No decision of the Apex Court or of this Court or of any other High Court interpreting the aforesaid expression has been relied upon by the parties. The Stroud's Judicial Dictionary, Vth Edition gives one of the meanings of the word "improper" as wrongful not accidental. As already noticed earlier the Election Commission had disqualified the petitioner, may be by mistake, by an order dated 7th July, 1992. The list of disqualified candidates prepared by the Election Commission included the name of the election petitioner against serial no. 1470. The Returning Officer, had, therefore, rejected the nomination for the aforesaid reason and had made the necessary endorsement (Ext. 1/1) on the nomination paper (Ext. 1). It has already been held above that the election petitioner or for that matter no one on his behalf had lodged any protest either in writing or verbally with the Returning Officer and the Returning Officer had no occasion whatsoever to consider whether the name of the election petitioner had been wrongly or by mistake included in the list of disqualified candidates prepared by the Election Commission. If in these circumstances the Returning Officer rejected the nomination, can such rejection be called improper? in my opinion the obvious answer would be No. No dishonest intention or malafide can be attributed to the Returning Officer in taking the decision to reject the nomination and in case he had taken decision on the basis of an order of the Election Commission which was void ab initio and did not exist as contended on behalf of the election petitioner, the decision can at best be described as accidental. In other words it could not be wrongful in that view of the matter I am of the considered view that the rejection of the nomination of the petitioner was not improper and hence the ground that the election of the returned candidate was void within the meaning of section 100 (1) (c) was not available to the petitioner. 14. The next question for consideration is whether the election can be declared void on the ground mentioned in section 100(1)(d)(iv) of the Act. Mr. Sharma argued that even if the election could not be declared void u/s. 100 (1)(c), it could be so declared u/s. 100 (1) (d) (iv) referred to above since there was admittedly non-compliance with the provisions of the Representation of the People Act and rules and orders made under the Act. In that connection learned counsel referred to sub-section (1) of Section 78 of the Act which requires that every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the district election officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77. Mr. Sharma also referred to the provisions of section 10A of the Act already reproduced earlier which vests the Election Commission with the jurisdiction to declare a person disqualified by an order published in the official gazette if it is satisfied that a person has failed to lodge an account of election expenses within the time and in the manner required by or under this Act and has no good reason or justification for the failure. It was argued that since the petitioner had not contested the election he was not required to lodge an account of election expenses under the Act and consequently the Election Commission had no jurisdiction to disqualify him under law. 15. Another ground for challenging the order of the Election Commission was that it was passed in hot haste and without giving any opportunity to the petitioner to show cause. In other words since no notice was given to the election petitioner the Election Commission had given no opportunity to the person concerned to enable him to give good reason or justification for his failure to lodge an account of election expenses, as it was legally obliged to do before exercising its power u/s. 10A. As already noticed earlier the order of the Election Commission (Ext. 5) leaves no room for doubt that the order dated 7th July 1992 by which the election petitioner had bean disqualified under section 10A had been passed under the mistaken notion that he had contested the election when another person of his name had actually contested the election and was required to file an account of election expenses. 16. That the order of the Election Commission disqualifying the election petitioner was bad is quite obvious. As already observed earlier even the Election Commission in its order (Ext. 5) while removing the disqualification of the election petitioner u/s. 11 of the Act had conceded that position Mr. Sharma in support of the contention that the order was void ab initio referred to two decisions of the Apex court in Nawabkhan vs. State of Gujrat (A.I.R. 1974 S.C. 1471) and Mohinder Singh vs. the Chief Election Commission (A.I.R. 1978 S.C. 851). In Nawabkhan's case (supra) the Apex court had been pleased to observe that an order which is void may be directly and collaterally challenged in legal proceeding. It was further pleased to observe that when a competent court holds such official act or order invalid or sets it aside, it operates from nativity i.e. impugned act or order was never valid. In Mohinder Singh's case (supra) the Apex court had occasion to refer to the scope of Article 324 of the Constitution and section 100 (1)(d)(iv) in these words, to quote: "The Election Commission has passed the order professedly under Art. 324 and Section 153 of the Act. In Mohinder Singh's case (supra) the Apex court had occasion to refer to the scope of Article 324 of the Constitution and section 100 (1)(d)(iv) in these words, to quote: "The Election Commission has passed the order professedly under Art. 324 and Section 153 of the Act. We have already held that the order is within the scope and ambit of Art. 324 of the Constitution. It, therefore, necessarily follows that if there is any illegality in the exercise of the power under Article 324 or under any provision of the Act, there is no reason why Section 100 (1) (d) (iv) should not be attracted to it. If exercise of a power is competent either under the provisions of the Constitution or under any other provision of law, any infirmity in the exercise of that power is, in truth and substance, on account of noncompliance with the provisions of law, since law demands of exercise of power by its repository, as in a faithful trust, in a proper, regular, fair and reasonable manner." Learned counsel for the election petitioner then referred to the following observations of the Apex court in course of the same judgment which are reproduced below, to quote: "It is undisputed that an election can be challenged only under the provisions of the Act. Indeed Section 80 of the Act provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of" Part VI of the Act. We find that all the substantial reliefs which the appellants seek in the writ application, including the declaration of the election to be void and the declaration of appellant No. 1 to be duly elected, can be claimed in the election petition. It will be within the power of the High Court, as the election court, to give all appropriate reliefs to do complete justice between the parties. In doing so it will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act. The writ application is therefore barred under Art. 329 (b) of the Constitution and the High Court rightly dismissed it on that ground." 17. In doing so it will be open to the High Court to pass any ancillary or consequential order to enable it to grant the necessary relief provided under the Act. The writ application is therefore barred under Art. 329 (b) of the Constitution and the High Court rightly dismissed it on that ground." 17. The argument advanced on behalf of the election petitioner is that ground u/s. 100(1) (d)(iv) for setting aside the election of the returned candidate is still available to the election petitioner and the election petition deserves to be allowed on this ground. On behalf of the respondent it was argued that the order disqualifying the election petitioner was passed by the Election Commission in July, 1992. The election petitioner made no effort to challenge the said order. It was also argued that when the said order was passed no election had taken place and hence an election petition u/s. 80 of the Act could not have been filed for setting aside the impugned order. Even a copy of the impugned order dated 7th July, 1992 by which the election petitioner was disqualified has been filed. Counsel for the respondent in the end took the stand that the ground u/s. 100(1) (d) (iv) for setting aside the election has neither been taken in the pleading nor by the election petitioner in his evidence and hence this court cannot and should not permit the election petitioner to press the election petition on that ground. 18. A plain reading of the pleadings of the parties including the evidence of the election petitioner (PW.1) gives an impression in no uncertain terms that the said ground for declaring the election of the returned candidate has not been taken by the election petitioner. Conscious of this position Mr. Sharma advanced the argument that the pleadings of an election petition is required to be read as a whole and not to cull out a sentence or paragraph out of context and interpreted in isolation. The argument in essence is that the intention of the party concerned is to be gathered from the tenure and terms of the pleadings taken as a whole. In that connection he referred to a decision of the Apex court in Raj Narain vs. Indira Gandhi (A.I.R. 1972 S.C. 1302). The argument in essence is that the intention of the party concerned is to be gathered from the tenure and terms of the pleadings taken as a whole. In that connection he referred to a decision of the Apex court in Raj Narain vs. Indira Gandhi (A.I.R. 1972 S.C. 1302). The Apex court in course of para 16 of the judgment has been pleased to observe in connection with an election petition that if a pleading on a reasonable construction could sustain the action, the court should accept that construction. Another decision of the Supreme Court relied upon on behalf of the election petitioner is in Udhav Singh vs. M.R. Scindia (A.I.R. 1976 S.C. 744) wherein it had been observed in connection with an election petition that a pleading has to be read as a whole to ascertain its true import and it is not permissible to cull out a sentence or a passage to read it out of context in isolation. The Apex court had however, emphasised that although it is the substance and not merely the forum that has to be looked into the pleading has to be considered as it stands without addition or subtraction of words or change of its apparent grammatical sense. 19. In my opinion the aforesaid decisions are of no help to the election petitioner. As already noticed in earlier paragraphs of this judgment the election petition or even the evidence of the election petitioner (PW.1) made no reference to the ground covered by section 100(1)(d)(iv) for setting aside the election. No such issue was framed for decision and the respondent was not put to notice that his election as the returned candidate is being challenged on the aforesaid ground also. As already noticed earlier the election petition had been filed for declaring the election void on the ground mentioned under section 100 (1) (c) namely on the ground of improper rejection of the nomination by the Returning Officer. It is possible that the election petitioner finding himself in a tight corner where the ground for challenging the election u/s. 100(1)(c) had little chance of being accepted by the Court as proved, had advanced the argument almost in desperation that the election can be set aside on the ground u/s. 100(1)(d)(iv). 20. It is possible that the election petitioner finding himself in a tight corner where the ground for challenging the election u/s. 100(1)(c) had little chance of being accepted by the Court as proved, had advanced the argument almost in desperation that the election can be set aside on the ground u/s. 100(1)(d)(iv). 20. Assuming that the ground u/s. 100 (1)(d)(iv) for challenging the election of the returned candidate namely the respondent was available to the election petitioner on the basis of the pleadings as is contended on his behalf, the question will still remain whether the election petition can be allowed on that basis. The mere non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act is not sufficient to enable this court to declare the election of the returned candidate to be void. The election petitioner is also required to prove that the result of the election in so far it concerns a returned candidate has been materially affected by such non-compliance. There is nothing in the election petition or even the evidence of the election petitioner (PW.1) to even suggest much less to prove that the election of the respondent has been materially affected by the non-compliance of the provisions of section 100(1)(d)(iv). As a matter of fact neither the election petition nor the election petitioner in his evidence has even mentioned the margin of votes by which the respondent had been declared elected. A bald statement that the election petitioner was a famous social worker and was the General Secretary of the Samata Party cannot be made the basis for recording any finding that his nomination being rejected on the basis of an illegal or void order of the Election Commissioner had materially affected the result of the election in so far it concerns a returned candidate. Moreover the respondent had denied that the election petitioner was a famour social worker and there is no evidence other than that of the election petitioner in support of the aforesaid point. In other words there is complete absence of any factual basis on which the court could have recorded a finding in favour of the election petitioner that the result of the election had been materially affected by the non-compliance of the provisions of the Act already referred to earlier. In other words there is complete absence of any factual basis on which the court could have recorded a finding in favour of the election petitioner that the result of the election had been materially affected by the non-compliance of the provisions of the Act already referred to earlier. I am, therefore, of the considered view that the election petitioner cannot be allowed to challenge the election as void on the ground mentioned under section 100(1)(d)(iv) and even if he was permitted to do so the same has not been substantiated on his behalf. 21. Thus for the foregoing reasons Issue Nos. 4 and 5 are decided against the election petitioner and the election petitioner is found entitled to grant of no relief whatsoever. The election petition has thus no merit and is therefore, dismissed with costs, quantified at Rs. 2,000/-.