JUDGMENT R.L. KHURANA, J.—The petitioner, a defeated candidate from 14, Solan Constituency of H.P. Vidhan Sabha, has challenged the election of respondent, the returned candidate, from such constituency under Section 100 (l)(c) and Section 100 (l)(d)(i) of the Representation of the People Act, 1951 (hereinafter referred to as the Act), on the following two grounds : (a) improper rejection of the nominations of Sarvshri Pritam Chand and Mohan Singh; and (b) the result of election insofar as it concerns the respondent, a returned candidate, has been materially affected by improper acceptance of the nomination of Shri Jagdish Chander Bhardwaj. 2. Stated briefly, the facts of the present case are these. The Election Commission of India notified the holding of elections to the 9th Himachal Pradesh Legislative Assembly as per the following election programme :— (i) Filing of nomination papers 28.1.1998 to 4.2.1998 (ii) Scrutiny of nomination papers 5.2.1998 (iii) Last date for withdrawal of candidature 7.2.1998 upto 3 p.m. (iv) Allotment of symbols 7.2.1998 after 3 p.m. (v) Date of Polling 28.2.1998 (vi) Counting of ballots 2.3.1998 3. A number of nomination papers were filed for 14, Solan Assembly Constituency. The petitioner filed his nomination as a candidate of Bhartiya Janta Party, while the respondent filed her nomination as a candidate of Indian National Congress (Congress-I). One Pritam Chand son of Bahadur Ram of village Falai, Tehsil and District Solan, filed his nomination (Ex. PW- 1/P) as a candidate of Shiv Sena (an unrecognised registered Political Party). On the date of scrutiny, his nomination was rejected by the Returning Officer vide order passed in the following terms:— "Since the nomination of main candidate has been accepted. He being substitute candidate. His nomination papers are rejected." 4. One Mohan Singh son of Shiv Ram, resident of Madhuban Colony, Solan, filed his nomination (Ex. PW-l/R) as a candidate of Himachal Vikas Congress (an unrecognised registered Political Party). His nomination also, upon scrutiny was rejected by the Returning Officer on 5.2.1998, vide the following order :— "The main candidate since has been accepted hence his nomination is rejected." RW-2 Shri Jagdish Chand Bhardwaj had filed his nomination (Ex. PW-l/N) as a candidate of Communist Party of India (CPI) on 4.2.1998 at 12.45 p.m. The Oath form Ex. PW-l/O shows that the requisite oath was made and subscribed by him on 4.2.1998 at 12.44 a.m., that is, before the filing of nomination papers. PW-l/N) as a candidate of Communist Party of India (CPI) on 4.2.1998 at 12.45 p.m. The Oath form Ex. PW-l/O shows that the requisite oath was made and subscribed by him on 4.2.1998 at 12.44 a.m., that is, before the filing of nomination papers. His nomination was accepted by the Returning Officer after scrutiny on 5.2.1998. 5. The other candidates, besides the petitioner and the respondent, whose nominations were accepted were Shri Ravinder Nath Parihar (Samajwadi Party), Shri Vinod Kumar (Himachal Vikas Congress), Smt. Satya Devi (Shiv Sena) and Shri Harminder Singh Thakur (Independent). Thus, after scrutiny and withdrawal of nominations a total number of seven candidates remained in the field. Polling took place on 28.2.1998. Counting of Votes took place and the result of election was declared on 3.3.1998, as under :— S.No. Name of candidate Party affiliation No. of votes polled 1. Ms. Krishna Mohini (respondent) Indian National Congress 12,210 2. Jagdish Chand Bhardwaj C.P.I. 598 3. Mohinder Nath Sofat (Petitioner) Bhartiya Janta Party 12,184 4. Ravinder Nath Parihar Samajwadi Party 512 5. Vinod Kumar Himachal Vikas Congress 1,063 6. Smt. Satya Devi Shiv Sena 72 7. Hat-minder Singh Thakur Independent 9,739 6. On the basis of the above result, the respondent was declared elected from 14-Solan Assembly Constituency by a margin of 26 votes. 7. While assailing the election of the respondent, the petitioner has averred that the nomination papers of Sarvshri Pritam Chand (Ex. PW-l/P) and Mohan Singh (Ex. PW-l/R) were wrongly rejected by the Returning Officer only on the ground that nomination papers of main candidates belonging to Shiv Sena and Himachal Vikas Congress, respectively, stood accepted. It was averred that such nomination papers should have been accepted by the Returning Officer by treating Sarvshri Pritam Chand and Mohan Singh as independent candidates, since their nomination papers were otherwise valid. 8. The petitioner has further averred that the nomination papers of Shri Jagdish Chand Bhardwaj, a candidate of Communist Party of India, was wrongly and imprpperly accepted by the Returning Officer. It was pleaded that the said Shri Jagdish Chand Bhardwaj had not made and subscribed the oath as required under Article 173 of the Constitution of India read with Section 33 of the Act. It was pleaded that the said Shri Jagdish Chand Bhardwaj had not made and subscribed the oath as required under Article 173 of the Constitution of India read with Section 33 of the Act. Shri Jagdish Chand Bhardwaj had filed the nomination paper before the Returning Officer on 4.2.1998 at 12.45 p.m., while he is shown to have taken the oath before the filing of the nomination paper at 12.44 a.m. on 4.2.1998. The improper acceptance of nomination paper of Shri Jagdish Chand Bhardwaj has materially affected the result of election. 9. The respondent, while resisting and contesting the election petition, has admitted the election programme as announced and notified by the Election Commission of India. It was also admitted that on the day of scrutiny, that is, on 5.2.1998, the nomination papers of Shri Pritam Chand and Mohan Singh were rejected and that of Shri Jagdish Chand Bhardwaj was accepted. She has pleaded that the nomination papers of Sarvshri Pritam Chand and Mohan Singh were rightly rejected by the Returning Officer, since they were the substitute candidates for the main candidates respectively belonging to Shiv Sena and Himachal Vikas Congress. Sarvshri Pritam Chand and Mohan Singh were to step in only on the nomination papers of the main candidates, namely, Smt. Satya Devi and Vinod Kumar being rejected during scrutiny. No objection to such rejection of nomination papers was raised by anyone present at the time of scrutiny. Sarvshri Pritam Chand and Mohan Singh also never objected to the rejection of their nomination papers by the Returning Officer and they had subsequently even withdrew the security amount. The respondent further admitted that the nomination papers of Sarvshri Pritam Chand and Mohan Singh were proposed by ten electors of the Constituency. None of these two candidates had expressed an intention to contest the elections as independent candidates. Insofar as the nomination paper (Ex. PW-l/N) of Shri Jagdish Chand is concerned, it has been pleaded that the same was rightly accepted by the Returning Officer. Shri Jagdish Chand Bhardwaj had duly made and subscribed the oath (Ex. PW-l/O) as required under the law. The nomination paper was presented by Shri Jagdish Chand Bhardwaj on 4.2.1998 and immediately thereafter he had made and subscribed the oath. There is only a clerical error in mentioning the time of making and subscribing the oath as 12.44 instead of 12.45. PW-l/O) as required under the law. The nomination paper was presented by Shri Jagdish Chand Bhardwaj on 4.2.1998 and immediately thereafter he had made and subscribed the oath. There is only a clerical error in mentioning the time of making and subscribing the oath as 12.44 instead of 12.45. The respondent has denied that her election has in any way been materially affected due to acceptance of the nomination paper of Shri Jagdish Chand Bhardwaj. Preliminary objections were further raised to the effect that the petition did not disclose full, concise and material facts and that it also did not disclose a cause of action and also that the petitioner has knowingly and intentionally concealed the material facts. 10. On the basis of the pleadings of the parties, following issues were framed on 8.7.1998 :— 1. Whether the petition does not disclose full, concise and material facts and does not disclose a cause of action? If so, its effect? OPR 2. Whether the petitioner has knowingly and intentionally concealed the material facts? If so, its effect? OPR 3. Whether the nomination papers of S/Shri Pritam Chand and Mohan Singh have been wrongly and improperly rejected and the election of respondent No. 1 is liable to be declared void under Section 100 (l)(c) of the Representation of People Act? OPP 4. Whether the nomination papers of Jagdish Chand Bhardwaj were wrongly accepted and the result of election has been materially affected thereby? OPP 5. Relief. 11. Both the parties have led oral as well as documentary evidence. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above issues are as under :— Issues No. 1 and 2 12. During the course of hearing Shri H.S. Mattewal, Senior Advocate, the learned Counsel for the respondent has not pressed these issues, since no arguments were addressed in respect thereto. Both these issues are, therefore, decided against the respondent. Issue No. 3 13. Admittedly, Shiv Sena and Himachal Vikas Congress are registered but unrecognised political parties. 14. Section 33 of the Act provides for the presentation of the nomination paper. It also lays down the requirements for a valid nomination. Section 33 of the Act, insofar as it is material for the purpose of the present case, reads :— "33. Admittedly, Shiv Sena and Himachal Vikas Congress are registered but unrecognised political parties. 14. Section 33 of the Act provides for the presentation of the nomination paper. It also lays down the requirements for a valid nomination. Section 33 of the Act, insofar as it is material for the purpose of the present case, reads :— "33. Presentation of nomination paper and requirements for a valid nomination.—(1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven oclock in the forenoon and three oclock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 31a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer: Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency : Provided further that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday: Provided also that in the case of a local authorities constituency, graduates constituency or teachers constituency, the reference to an elector of the constituency as proposer shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers. 15. Section 36 (2) of the Act provides for the grounds on which a nomination paper may be rejected by the Returning Officer. 15. Section 36 (2) of the Act provides for the grounds on which a nomination paper may be rejected by the Returning Officer. It reads : "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 x if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that on the date fixed for 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 that may be applicable, namely : Articles 84, 102, 173 and 191, Part-II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963); or (b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine.” 16. Sub-section (4) of Section 36 of the Act further provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Sub-section (5) of Section 36 which prohibits the adjournment of the scrutiny proceedings lays down :— "The Returning Officer shall hold the scrutiny of the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by cause 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." 17. The nomination papers of Shri Pritam Chand and Mohan Singh, respectively, are Ex. PW-l/P and PW-l/R. Shri Pritam Chand filed his nomination as a candidate of "Shiv Sena" a registered unrecognised Political Party. The nomination has been subscribed by ten proposers who are the electors of the constituency. Shri Mohan Singh filed his nomination Ex. The nomination papers of Shri Pritam Chand and Mohan Singh, respectively, are Ex. PW-l/P and PW-l/R. Shri Pritam Chand filed his nomination as a candidate of "Shiv Sena" a registered unrecognised Political Party. The nomination has been subscribed by ten proposers who are the electors of the constituency. Shri Mohan Singh filed his nomination Ex. PW-1 /R both as a candidate of "Himachal Vikas Congress", a registered unrecognised Political Party and as an independent. His nomination also has been subscribed by ten proposers who are the electors of the constituency. 18. As stated above, both the nomination papers Ex. PW-1/ P and Ex. PW-l/R of S/Shri Pritam Chand and Mohan Singh, after scrutiny were rejected by the returning officer simply on the ground that the nomination papers of the main candidates of the said two parties stood accepted. Admittedly, this ground of rejection of nomination papers does not fall within the ambit of Section 36 (2) of the Act. 19. It has not been disputed before me that had Sarvshri Pritam Chand and Mohan Singh been treated as independent candidates, the nomination papers filed by them were in order. The question, therefore, is whether a nomination paper of a candidate can be rejected by the returning officer on a ground which is not contemplated by Section 36 (2) of the Act. 20. Shri Bhoop Singh, the learned Counsel for the petitioner, has vehemently contended that rejection of nomination papers, Ex. PW-1 /P and Ex. PW-1 /R of Sarvshri Pritam Chand and Mohan Singh, by the Returning Officer on the ground stated in his order dated 5.2.1998 was impermissible under Section 36 of the Act and that the same is a ground for setting aside the election of the respondent under Section 100 of the Act. In support of his contention, the learned Counsel has placed reliance on the decision in Hira Singh Pal v. Madanc Lal [AIR 1968 SC 1179], a case arising from this State. The petitioner therein had filed two sets of nomination papers on 20.1.1967, as a candidate from 9 Arki Assembly Constituency of Himachal Pradesh. Both these nomination papers were rejected by the Returning Officer at the time of scrutiny on 21.1.1967. The election of the returned candidate was challenged by the petitioner Madan Lal on the ground that his nomination papers were improperly rejected by the Returning Officer. Both these nomination papers were rejected by the Returning Officer at the time of scrutiny on 21.1.1967. The election of the returned candidate was challenged by the petitioner Madan Lal on the ground that his nomination papers were improperly rejected by the Returning Officer. The Delhi High Court allowed the election petition on 14.7.1967 and the election of the returned candidate Hira Singh Pal was set aside. The decision of the Delhi High Court was affirmed in appeal by the Apex Court. The order dated 21.1.1967 vide which the nomination papers of Madan Lai, petitioner, were rejected, was in the following terms :— "Shri Madan Lal, resident of village Parhech, P.O. Ghanahatti, District Mahasu filed two nomination papers before me on 20th January, 1967 which bear serial Nos. 5 and 6. According to the entry in the nomination paper serial No. 5 Shri Anant Ram proposer has been shown to be entered at serial No. 383 of Part 13 of the electoral rolls for 9-Arki Assembly Constituency. From the comparison with the final copy of electoral rolls for this constituency at serial No. 383 of Part 13 the name of Shrimati Phullu wife of Shri Nirjal Singh has been entered. As such this entry in this nomination paper is wrong. As regards nomination paper bearing serial No. 6 the candidate has shown his name to be entered at serial No. 504 of Part 12 of the Electoral rolls for 9-Arki Assembly Constituency. From the comparison with the aforesaid entry in the final copy of the electoral rolls at the aforesaid serial No. of the aforesaid part one Shrimati Darshnoo wife of Shri Ghanaya Ram has been entered. Hence this entry in the nomination paper bearing serial No. 6 is incorrect. At the time of scrutiny neither Shri Madan Lal nor his proposer or election agent nor any one authorised on his behalf was present so that he could be given an opportunity for correcting these entries. This candidate while presenting his nomination papers claimed to be the substitute candidate of the Indian National Congress who have put up Shri Hari Dass as their only candidate. In view of the aforesaid circumstances it cannot be ascertained whether Shri Madan Lal is an elector in any Assembly Constituency of Himachal Pradesh or that his proposer Shri Anant Ram is an elector in the 9-Arki Assembly Constituency. In view of the aforesaid circumstances it cannot be ascertained whether Shri Madan Lal is an elector in any Assembly Constituency of Himachal Pradesh or that his proposer Shri Anant Ram is an elector in the 9-Arki Assembly Constituency. Shri M.R. Gupta, Advocate, the person authorised on behalf of Shri Hari Dass was informed to convey to Shri Madan Lal that he can approach me any time upto 3.00 p.m. today for correcting these entries. Shri Madan Lal has not turned up as yet. It is now 15 minutes past 3.00 p.m. In these circumstances there is no alternative but to reject both these nomination papers as the candidate does not seem to be interested in correcting these entries and filing proper and valid nomination papers. These orders are passed ex parte since Shri Madan Lai has not cared to turn up." 21. The question which arose before the Supreme Court was - whether the grounds on which the Returning Officer rejected the nomination papers of the petitioner Madan Lal were substantial grounds as contemplated by Section 36 of the Act? It was held:— "Before we deal with that question, it is necessary to set out few more facts. According to the appellant, the respondent was not a genuine candidate; he was a dummy Congress candidate; he never intended to contest the election. There is basis for this contention. The respondent was the General Secretary of the Mahasu District Congress Committee. He never applied for any Congress ticket, nor his name was considered either by the District Congress Committee or by the Pradesh Congress Committee. He did not give the contribution required to be given by the candidates to the party; nor did he give the security prescribed by the party. The Congress had selected Mr. Hari Dass, one of the then Ministers in the Himachal Pradesh Government for contesting the constituency in question. His name had been recommended by the District Congress Committee as well as by the Pradesh Congress Committee. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. It had been accepted by the Parliamentary Board. He had paid the necessary subscription. He had also deposited the prescribed security. It is found from the evidence of the appellant that both Mr. Hari Dass as well as the respondent went together to the Returning Officer for filing their nominations. In fact it is clear from the order of the Returning Officer that the appellant had told him that he was only a covering candidate for Mr. Hari Dass. It may also be noted that the respondent had declared that he was a Congress nominee. He had also asked for the Congress symbols namely a pair of bullocks. It may further be noted that on the date of the scrutiny, the respondent was absent and there was nobody to represent him. The Advocate who represented the Congress organisation did not object to the rejection of the nomination of the respondent presumably because no one was interested in his nomination as the nomination of Mr. Hari Dass had been accepted. Possibly he is now challenging the election because his partys candidate has been defeated. At this juncture, we may notice that the respondent did not even apply for a copy of the order of the Returning Officer rejecting his nomination till the election results were announced. He admitted during his cross-examination that he had acted as the counting agent of Mr. Hari Dass. It is proved from the evidence of the appellant that he actively canvassed for Mr. Hari Dass. From the facts and circumstances established in this case we have no doubt in our mind that the respondent was at no time a genuine candidate. He is merely availing himself of the opportunity of the rejection of his nomination paper for undoing the result of the election. That, however, is not the end of the matter. All that we have to consider in this appeal is whether the Returning Officer was right in rejecting the nomination of the respondent. As mentioned earlier, the errors found in the nomination papers are purely clerical errors. The Returning Officer had the duty to scrutinize the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. The Returning Officer had the duty to scrutinize the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same. Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers. He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers. Evidently the Returning Officer failed in his duty. Further when he scrutinized the nomination papers on January 21, 1967, he had before him all the required information. It may be that while scrutinising the first nomination paper (marked as No. 5) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not, but when he came to the second nomination paper where the proposers name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomination paper. It is true that in that nomination paper, it had been mentioned that the candidates name is found at serial No. 504 in Part 2 of 9-Arki Assembly Constituency though in fact it is found at serial number 504 in Part 12 of that constituency; but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll. All the required information was before him. Obviously he rejected the nomination papers for the reason that the respondent was only a dummy candidate but that was not a matter for him to decide. If he was a dummy candidate there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. Therefore, it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under Section 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act." 22. Therefore, it is quite clear that the respondents nomination papers were improperly rejected. Such a rejection was impermissible under Section 36 and the same is a ground for setting aside the election under Section 100 of the Representation of the People Act." 22. Shri H.S. Mattewal, the learned Counsel for the respondent, has contended that even though the ground on which the nomination papers of Sarvshri Pritam Chand and Mohan Singh, have been rejected, does not fall within the ambit of Section 36 (2) of the Act, such a ground is contemplated under "Election Symbols (Reservation and Allotment) Order, 1968, (for short the Order) made by the Election Commission of India, in exercise of the powers under Article 324 of the Constitution of India. It was contended that the order envisages only one candidate to be set up by a political party and once the nomination paper of the candidate set up by a Political Party stands accepted, the nomination of all other candidates alleging themselves to be candidate (s) of such Political Party cannot be accepted and are liable to be rejected. 23. It was also contended that the ratio laid down by the Supreme Court in Hira Singh Pals case (supra), would have no application to the present case, since the said case pertains to the period prior to the making of the Order by the Election Commission of India, in exercise of the powers, under Article 324 of the Constitution of India. 24. There is no merit in the contention raised by Shri Mattewal, the learned Counsel for the respondent and the same cannot be sustained. The Order has been made by the Election Commission of India, in exercise of the powers conferred by Article 324 of the Constitution of India, read with Section 29-A of the Act and Rules 5 and 10 of the Conduct of Election Rules, 1961 and all other enabling provisions primarily "to provide for specification, reservation, choice and allotment of symbols at elections in Parliament and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith. This Order has nothing to do with the validity or otherwise of a nomination paper filed by a particular candidate either as an independent or as a candidate of a registered unrecognised political party. 25. This Order has nothing to do with the validity or otherwise of a nomination paper filed by a particular candidate either as an independent or as a candidate of a registered unrecognised political party. 25. In Sadiq Ali v. Election Commissioner of India [AIR 1972 SC 187], the Supreme Court after setting out the scheme of the Order, has explained the reasons which led to the introduction of symbols in the following words: "It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for the illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of election law of India. In some countries, details in the form of letters of alphabet or numbers are added against the name of each candidate while in others, resort is made to symbols or emblems. The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice." 26. Paragraph 2 (h) of the Order defines a "Political Party" as meaning an association or body of individual citizens of India registered with the Election Commission of India, as a Political Party under Section 29-A of the Act. Under paragraph 6 of the Order, Political Parties may be classified either as recognised Political Parties or unrecognised Political Parties. Paragraph 7 provides that a recognised Political Party may either be called a "National Party" or a "State Party". Paragraph 5 deals with classification of symbols. A symbol reserved for a recognised Political Party is called a "reserved symbol". Symbols other than reserved symbols are called "free symbols". Paragraph 13 of the Order provides for the conditions on the fulfillment of which a candidate is to be deemed to be set up by a political party. It reads:— "13. Paragraph 5 deals with classification of symbols. A symbol reserved for a recognised Political Party is called a "reserved symbol". Symbols other than reserved symbols are called "free symbols". Paragraph 13 of the Order provides for the conditions on the fulfillment of which a candidate is to be deemed to be set up by a political party. It reads:— "13. When a candidate shall be deemed to be set up by a Political Party.—For the purpose of this Order, a candidate shall be deemed to be set up by a Political Party if, and only if,— (a) the candidate has made a declaration to that effect in his nomination paper; (b) a notice in writing to that effect has, not later than 3 p.m. on the last date for making nominations, been delivered to the Returning Officer of the constituency and the Chief Electoral Officer of the State; (c) the said notice is signed by the President, the Secretary or any other office bearer of the party and the President, the Secretary or such other office bearer is authorised by the party to send such notice; and (d) the name and specimen signature of such authorised person are communicated to the Returning Officer of the constituency and to the Chief Electoral Officer of the State not later than 3.00 p.m. on the last date for making nominations." 27. Under paragraph 18 of the Order of the Election Commission of India is empowered to issue instructions and directions for carrying out the purpose of the Order. It provides :— "18.Power of Commission to issue instructions and directions.— The Commission may issue instructions and directions— (a) for the clarification of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (c) in relation to any matter with respect to the reservation and allotment of symbols and recognition of Political Parties, for which this Order makes no provision or make insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections.” 28. In exercise of the above powers, certain directions/ clarifications were issued by the Election Commission, vide its Circular Letter No. 3/ER/96-Judl. In exercise of the above powers, certain directions/ clarifications were issued by the Election Commission, vide its Circular Letter No. 3/ER/96-Judl. II dated 9.8.1996, keeping in view the amendments made to the Act vide the Amendment Act of 1996 and the consequential changes brought about in the Conduct of Election Rules, 1961 with regard to the revision of forms of nomination papers. Paragraph 15 of this Circular Letter, which is material for the purpose of the present case, reads :— "As a result of the aforesaid amendments made to the Forms of nomination paper and paragraph 13 of the Symbols Order, certain consequential amendments have also become necessary in the above referred Forms A and B in which the political parties give formal intimation with regard to the candidates set up by them. A copy each of the revised Forms A and B is also enclosed herewith for your information and use at all future elections. It will be observed from the revised Form B that the parties have still been given an option in that Form to intimate the name of the substitute candidate who will step-in, if the nomination of the main approved candidate of the party is rejected on scrutiny. But such substitute candidate shall be deemed to have been set up by the party, only if all the requirements under the said para 13, as amended, of the Election Symbols (Reservation and Allotment) Order, 1968 have been fulfilled in his case. If, however, the nomination of the main approved candidate of the party is found valid on scrutiny, the substitute candidate shall not be deemed to have been set up by that party for the purposes of the amended Section 33 of the Representation of the People Act, 1951 and his nomination paper will be scrutinised by the Returning Officer having regard to the other provisions of that Act." [Emphasis supplied] 29. Here it may also be pertinent to refer to the instructions issued by the Election Commission as contained in the "Hand Book for Returning Officer" published in 1998. Here it may also be pertinent to refer to the instructions issued by the Election Commission as contained in the "Hand Book for Returning Officer" published in 1998. Paragraphs 10.3 (iii), 10.3 (iv) and 10.3 (vii) of Chapter VI at pages 46/47 of the Hand Book which are material for the purpose of the present case read :— "(iii) If a candidate has filed one nomination paper with both Parts I 85 II thereof filled and he fails to bring notice in Forms A and B from the authorised officer-bearer of the concerned political party, the nomination paper may be accepted if Part II is properly filled subscribed by ten electors as proposers, as there will be substantial compliance with the provisions of Section 33 of the Representation of the People Act, 1951. (iv) If a candidate, who filled his nomination paper as candidate claiming to be set up by an unrecognised political party, fails to bring in his favour a notice from the concerned political party in Forms A” and (B), his nomination paper will be accepted if it is subscribed by ten electors as proposers, and he would be deemed to be an independent candidate. (vii) The nomination paper of a substitute candidate of a recognised political party will be rejected if the nomination paper of the main approved candidate of that recognised political party is accepted. However, if such substitute candidate has also filed another nomination paper subscribed by ten electors as proposers, this latter nomination paper will be scrutinised independently by treating the candidate as an independent candidate. Further, if the nomination paper of the main approved candidate of the party is rejected, then also the nomination paper of the substitute candidate will be accepted, provided that the party has intimated his name as its substitute candidate in Form A and B filed before 3 p.m. on the last date for making nominations.” [Emphasis supplied] 30. Further, if the nomination paper of the main approved candidate of the party is rejected, then also the nomination paper of the substitute candidate will be accepted, provided that the party has intimated his name as its substitute candidate in Form A and B filed before 3 p.m. on the last date for making nominations.” [Emphasis supplied] 30. A conjoint reading of the provisions contained in Sections 33 and 36 of the Act, paragraph 13 of the Order, and the instructions issued by the Election Commission (quoted above) brings out the following position :— (1) Where the candidate is set up by a registered and recognised political party, a nomination to be valid must— (a) be signed by the candidate and one proposer; (b) contain a declaration by the candidate to the effect that he has been set up by a registered and recognised political party; (c) be supported by a notice in Forms A and B duly signed by the President, Secretary or any other office bearer of the party duly authorised by the party to send such a notice not later than by 3 p.m. on the last date for making nominations; and (d) the name and specimen signature of such an authorised person are communicated to the Returning Officer of the constituency and to the Chief Electoral Officer of the State, not later than 3 p.m. on the last date for making nominations; (e) the nomination paper of a substitute candidate shall be rejected if the nomination paper of the main approved candidate of that registered and recognised political party is accepted; (f) However, if such substitute candidate has filed separate nomination paper subscribed by ten proposers, such nomination paper is to be scrutinized independently by treating him as an independent candidate. (g) In the event of the nomination paper of the main approved candidate being rejected, the nomination paper of the substitute candidate will be accepted, provided his name has been intimated as a substitute candidate in Forms A and T3? by the concerned political party in the manner stated in paragraphs (c) and (d) above. (g) In the event of the nomination paper of the main approved candidate being rejected, the nomination paper of the substitute candidate will be accepted, provided his name has been intimated as a substitute candidate in Forms A and T3? by the concerned political party in the manner stated in paragraphs (c) and (d) above. (2) In the case of a candidate set up by a registered and unrecognised political party, the requirement of a valid nomination are :— (a) It must be signed by the candidate and subscribed by ten proposers; (b) It should contain a declaration by the candidate to the effect that he has been set up by a particular registered and unrecognised political party; (c) It shall be supported by a notice in Forms A and B duly signed by the President, Secretary or any other office bearer of the party duly authorised by the party to send such a notice not later than by 3 p.m. on the last date for making nominations; (d) the name and specimen signature of such an authorised person are communicated to the Returning Officer of the constituency and to the Chief Electoral Officer of the State, not later than 3 p.m. on the last date for making nominations; (e) the nomination paper of the substitute candidate or of a candidate who fails to bring in his favour a notice in Forms A and B from the concerned registered and unrecognised political party, shall be considered by treating him as an independent candidate. (3) In the case of an independent the only requirement is that the nomination is required to be signed by the candidate and subscribed by ten proposers. 31. Admittedly, Part-II of the nomination papers of Sarvshri Pritam Chand and Mohan Singh, which are Ex. PW-l/P and Ex. PW-l/R have been duly subscribed by ten electors as proposers. They failed to bring in their favour a notice from the concerned political party in Forms A and B. Therefore, on their failure to do so and on the acceptance of the nomination papers of the main approved candidates, their nomination papers could not have been rejected by the Returning Officer. Their nomination having been proposed by ten electors and otherwise valid, ought to have been accepted by treating them as independent candidates. Their nomination having been proposed by ten electors and otherwise valid, ought to have been accepted by treating them as independent candidates. The Returning Officer failed to do so and proceeded to reject their nomination papers simply on the ground that the nomination papers of the main candidates stood accepted. Therefore, such rejection of the nomination papers of Sarvshri Pritam Chand and Mohan Singh was improper within the meaning of Section 100 (1)(c) of the Act. 32. RW-3 Shri Tek Chand, the then Returning Officer of 14-Solan Assembly Constituency after admitting that in the case of an independent candidate, the nomination to be valid requires ten proposers, has stated in the following terms with regard to nomination papers, Ex. PW-1 /P and PW-1 /R filed by Sarvshri Pritam Chand and Mohan Singh :— ".....The nomination of Pritam Chand was proposed by 10 electors of the constituency which I had found to be correct. It is correct that in the nomination submitted by Pritam Chand copy of which is Ex. PW-l/P there is no indication that he is substitute candidate of Shiv Sena. The nomination of Mohan Singh was proposed by 10 electors which I had found to be correct. Shri Mohan Singh had filed nomination as candidate of Himachal Vikas Congress. It is correct that there is no indication in the nomination from copy of which is Ex. PW- 1/R that he is a substitute candidate. It is correct that there is an endorsement in the nomination form Ex. PW-l/R indicating that Shri Mohan Singh was contesting the election as an independent candidate. It is correct that in the nomination paper copy of which is Ex. PW-l/P Pritam Chand has not indicated any election symbol......” 33. He has further gone to state that had Sarvshri Pritam Chand and Mohan Singh made a request to him for being considered as independent candidates, he would have accepted their nomination papers. RW-3 could not state if at the time of scrutiny Sarvshri Pritam Chand and Mohan Singh were present. He admitted that the objection as to the validity of nomination papers Ex. PW-l/P and Ex. PW-l/R was taken by him suo motu. 34. RW-3 could not state if at the time of scrutiny Sarvshri Pritam Chand and Mohan Singh were present. He admitted that the objection as to the validity of nomination papers Ex. PW-l/P and Ex. PW-l/R was taken by him suo motu. 34. The proviso to Section 36 (5) of the Act, quoted above, specifically provides that in case an objection is raised as to the validity of any nomination paper, either by the Returning Officer suo motu or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day but the one following the date of scrutiny and to record his decision on the date to which the proceedings nave been adjourned. 35. The scope and ambit of the proviso to Section 36 (5) of the Act was considered by the Supreme Court in Rakesh Kumar v. Sunil Kumar [AIR 1999 SC 935]. It was held that through the proviso, the Legislature has provided that in case an objection is raised during the scrutiny to the validity of a nomination paper of a candidate, the Returning Officer, may, give an opportunity to the concerned candidate to rebut the objection by giving him time "not later than the next day". This is in accord with the principle of natural justice also. 36. Taking note of the amendment made in Section 33 (1) of the Act in the year 1996, the Supreme Court observed :— "The legislature in its supreme wisdom did not amend the proviso to Section 36 (5) of the Act after Section 33 (1) was amended in 1996, thereby clearly exhibiting its intention that the said proviso was required to be given its full effect, more particularly because the duty which a Returning Officer performs while scrutinising the nomination papers is quasi-judicial in character, even after Section 33 (1) had been amended." 37. No doubt, the proviso to Section 36 (5) of the Act does not contemplate the holding of a detailed enquiry, the mandate of the proviso warrants the holding of a summary enquiry to determine the validity of the nomination paper by the Returning Officer, while exercising his quasi-judicial function. [See : Birad Mai Singhvi v. Anand Purohit, AIR 1988 SC 1796 and Rakesh Kumar v. Sunil Kumar, AIR 1999 SC 935]. 38. [See : Birad Mai Singhvi v. Anand Purohit, AIR 1988 SC 1796 and Rakesh Kumar v. Sunil Kumar, AIR 1999 SC 935]. 38. Admittedly, no opportunity was granted to Sarvshri Pritam Chand and Mohan Lai to rebut the objection raised suo motu by the Returning Officer (RW-3) to the validity of their nomination papers. They were not even asked if they were willing to be considered as independent candidates. Therefore, the stand taken by the Returning Officer that had Sarvshri Pritam Chand and Mohan Singh made a request to him for being considered as independent candidates, he would have accepted their nomination, appears to have been taken up by him as an afterthought. 39. The Returning Officer failed to follow the instructions issued by the Election Commission in exercise of its statutory functions, as are contained in the Hand Book for the Returning Officers, referred to above, while scrutinising the nomination papers. 40. A contention was raised on behalf of the respondent that Sarvshri Pritam Chand and Mohan Singh were only dummy candidates and had no interest in the election. They never objected to the rejection of their nomination papers. They, on the other hand, had withdrawn the amount of security deposited by them meaning thereby that they were satisfied with the order of the Returning Officer rejecting their nomination papers. In support of the contention, reliance has been placed on the decision in Bhogendra Jha v. Manoj Kumar Jha [AIR 1996 SC 2099]. It was further contended that maintenance of purity of elections is essential and as such the election of the returned candidate should not be disturbed and declared void on the ground that the nomination papers of dummy candidates were improperly rejected. 41. Even if Sarvshri Pritam Chand and/or Mohan Singh had not objected to or assailed the rejection of their nomination papers by the Returning Officer and they might have withdrawn the amount of the security deposited by them after the rejection of their nomination papers, such an act on their part would not and cannot estop the petitioner from challenging the election of the respondent on the ground of improper rejection of the nomination papers Ex. PW-1 / P and Ex. PW-l/R. The only course open to the Returning Officer was to accept their nomination papers as independent candidates. PW-1 / P and Ex. PW-l/R. The only course open to the Returning Officer was to accept their nomination papers as independent candidates. And in case they had no interest in the election, they were at liberty to withdraw their nomination papers on the day fixed and specified for withdrawal of nomination papers. 42. The question whether Sarvshri Pritam Chand and Mohan Singh were dummy candidates and had no interest in the election is not to be decided by the Returning Officer. In Hira Singh PaVs case (supra) where the nomination paper of the election petitioner therein appeared to have been rejected for the reason that he was only a dummy candidate, it was held that such question was not for the Returning Officer to decide. If such candidate was only a dummy candidate, there was occasion for him to withdraw his candidature after the scrutiny of the nomination papers. The rejection of the nomination paper of the election petitioner was, therefore, held to be improper. 43. In the case of Bhogendra Jhas case (supra), relied upon by the learned Counsel for the respondent, there was evidence that the candidates whose nomination papers were rejected by the Returning Officer, were merely dummy candidates and had no interest in the election. In the present case, such an evidence is lacking. The ratio laid down in Hira Singh Pal’s case (supra) more aptly applies to the facts of the present case. 44. Once it is shown that the statutory authority envisaged under the Act, namely, the Returning Officer, had failed to follow the statutory provisions, instructions and Order while scrutinising the nomination papers and thereby had adopted a wrong procedure, the election of the returned candidate cannot be upheld merely in the name of and for the sake of maintenance of purity of elections and/or wish of the people. 45. On the facts and in the circumstances of the case, it is held that the nomination papers, Exs. PW-1 /P and PW-1 /R of Sarvshri Pritam Chand and Mohan Singh were improperly rejected by the Returning Officer and the election of the respondent is liable to be declared void under Section 100 (1)(c) of the Act. The issue is accordingly, decided in favour of the petitioner. Issue No. 4 46. Section 32 of the Act, provides for nomination of candidates for election in the following terms:— 32. The issue is accordingly, decided in favour of the petitioner. Issue No. 4 46. Section 32 of the Act, provides for nomination of candidates for election in the following terms:— 32. Nomination of candidates for election.—Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act or under the provisions of the Government of Union Territories Act, 1963 (20 of 1963), as the case may be." 47. It is pertinent to note that under Section 36 (2) of the Act, one of the grounds, on which a nomination can be rejected, is that on the date fixed for scrutiny of the nominations, the candidate is not qualified for being chosen to fill the seat under Article 173 of the Constitution. The relevant part of Article 173 provides :— "A person shall not be qualified to be chosen to fill a seat in the legislature of a State unless he— (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) .....................;and (c) ......................” The form referred to reads as follows :— "Form of oath or affirmation to be made by a candidate for election to the Legislature of a State :— I, A.B., having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India." 48. The Supreme Court in Pashupati Nath Singh v. Harihar Prasad Singh [AIR 1968 SC 1064], has held that the words "having been nominated" appearing in the Form of Oath clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate. 49. A candidate would be deemed to have been nominated only after he had delivered to the Returning Officer a nomination paper completed in the prescribed form as required under Section 33 (1) of the Act. 50. 49. A candidate would be deemed to have been nominated only after he had delivered to the Returning Officer a nomination paper completed in the prescribed form as required under Section 33 (1) of the Act. 50. The Supreme Court in Pashupati Nath Singhs case (supra) has explained the meaning of the expression "On the date fixed for scrutiny" appearing in Section 36 (2) of the Act, as under :— "It seems to us that the expression on the date fixed for scrutiny in Section 36 (2) (a) means on the whole of the day on which the scrutiny of nomination has to take place. In other words, the qualification must exist from "the earliest moment of the day of scrutiny." 51. Following the decisions of the Supreme Court in Pashupati Nath Singhs case (supra) and in Khader Khan Hussain Khan and others v. Nijalingappa [1970 (1) SCA 518], the Election Commission, in exercise of its statutory functions, has issued the instructions as contained in paragraphs 22.1 and 22.2, Chapter V, of the Hand-Book for Returning Officers, as under:— "22.1 The oath or affirmation should be made and subscribed before the date fixed by the Election Commission for scrutiny of nomination papers at that election. The decisions of the Supreme Court in Pasupati Nath Singh v. Harihar Prasad Singh [AIR 1968 SC 1064] and Khader Khan Husain Khan and others v. Nijalingappa [1970 (1) SCA 548] have clarified the position and removed all doubts in regard to the actual making and subscribing the oath or solemn affirmation." 22.2 According to these decisions, the oath or solemn affirmation can be made and subscribed by a candidate only after his nomination paper has been delivered and it cannot be so made and subscribed on the date of scrutiny. You should, therefore, advise the candidate to make the oath or affirmation immediately after presenting their nomination papers and in any case not later than the day previous to the date of the scrutiny." 52. Therefore, a combined reading of the Form of Oath and Section 36 (2) of the Act would show that a candidate is required to make and subscribe the requisite oath any time after the filing of the nomination paper under Section 33 (1) of the Act and before the date fixed for scrutiny. Therefore, a combined reading of the Form of Oath and Section 36 (2) of the Act would show that a candidate is required to make and subscribe the requisite oath any time after the filing of the nomination paper under Section 33 (1) of the Act and before the date fixed for scrutiny. Oath made and subscribed before the filing of the nomination paper and on or after the date of scrutiny would not be valid and in such case the nomination paper would be liable to be rejected under Section 36 (2) of the Act. 53. The nomination paper Ex. PW-l/N and the Oath Ex. PW-l/O alleged to have been made and subscribed by RW-2, Shri Jagdish Chander Bhardwaj, which was accepted by the Returning Officer, are, therefore, required to be examined in the light of the above legal position. 54. A perusal of the nomination Ex. PW-l/N shows that such nomination paper was delivered by RW-2 Shri Jagdish Chander Bhardwaj as a candidate of CPI to the Returning Officer on 4.2.1998 at 12.45 p.m. as per the endorsement made in Part IV thereof by the Returning Officer. The endorsement made on the Form of Oath shows that the Oath is shown to have been made and subscribed by RW-2 Shri Jagdish Chand Bhardwaj on 4.2.1998 at 12.44 a.m., that is, about twelve hours before the filing of the nomination paper Ex. PW-l/N. 55. The learned Counsel for the petitioner has, therefore, contended that the oath having been made and subscribed by RW-2 before he was nominated as a candidate was not valid being in contravention of the provisions contained in Article 173, Constitution of India. The same was liable to be rejected since on the date of scrutiny, RW-2 was not qualified to be nominated within the meaning of Section 32 read with Section 36 (2) of the Act. 56. The respondents case in this regard, as set out in paragraph 7 of her reply to the election petition is as follows : "......The date of the scrutiny was 5th of February, 1998 and Shri Bhardwaj has made and subscribe the oath before the date of scrutiny on 4th February, 1998 and it could not be said that his nomination papers were not valid in all respect and the petitioner has again tried to mislead this Honble Court in this respect. There is no law provided under the Representation of Peoples Act, 1951 and other connected provisions of election law that if the oath under the provisions of the Constitution is made and subscribed simultaneously with the filing of the nomination papers it could not be said that it is not a valid oath under the Constitution. It is quite mala fide to say that the result of the election of the returned candidate the replying respondent has been materially effected by the proper acceptance of the nomination papers of Shri Jagdish Chand Bhardwaj. The petitioner wanted to make a mountain out of the mole hill on the inadvertant clerical error of timing of making and subscribing oath at 12.44 instead of 12.45 when the nomination papers were presented and immediately the he made and subscribe oath of affirmation as per provision of the Constitution.” 57. RW-3 Shri Tek Chand, the then Returning Officer, with regard to the filing of the nomination paper by RW-2, Shri Jagdish Chander Bhardwaj and making and subscribing of oath by him, has deposed :— “......I have seen the original nomination paper, copy of which is Ex. PW- 1/N. This nomination paper was presented before me by Shri Jagdish Chander Bhardwaj on 4.2.1998 at 12.45 p.m. after the nomination paper was presented to me, I had carried out the preliminary examination thereof. Immediately 2-3 minutes thereafter I had administered the oath to the said candidate. Shri Jagdish Chander Bhardwaj has signed the nomination paper Ex. PW-l/N in my presence. Similarly, he had signed the oath form copy of which is Ex. PW-l/O in my presence. The date and time recorded in Ex. PW-l/N and Ex. PW-l/O are in the hand of Election Kanungo, who was assisting me. The time of 12.44 a.m. as recorded in the oath form, copy of which is Ex. PW-1/O is due to clerical mistake. The time recorded as 12.44 a.m. in Ex. PW-l/O could not have been there since oath was administered only after the submission of nomination form Ex. PW-l/N. Insofar as I can recollect, oath was administered at 12.46 p.m....." 58. RW-4 Shri Khiali Ram, Election Kanungo, was assisting the Returning Officer at the relevant time. Me has admitted that the endorsements on the nomination paper Ex. PW-l/N and Oath form Ex. PW-l/N. Insofar as I can recollect, oath was administered at 12.46 p.m....." 58. RW-4 Shri Khiali Ram, Election Kanungo, was assisting the Returning Officer at the relevant time. Me has admitted that the endorsements on the nomination paper Ex. PW-l/N and Oath form Ex. PW-l/O as to the date and time of filing the nomination, and making and subscribing of the oath by RW-2 Shri Jagdish Chand Bhardwaj are in his hand. As to the date and time recorded in the oath form Ex. PW-l/O, he has stated :— "The time mentioned in Ex. PW-l/O as to administration of Oath is wrong and the same has been recorded by me due to rush of work." 59. During the course of cross-examination, he has categorically stated that the mistake was only with regard to the mentioning of a.m. for p.m. Time of 12.44 was correct. If this part of the statement of the witness is admitted as correct, even then the nomination paper of RW-2, Shri Jagdish Chander Bhardwaj, was improperly accepted by the Returning Officer, since at 12.44 p.m. he (RW-2) had not been nominated as a candidate inasmuch as the nomination paper was presented by him at 12.45 p.m., that is, one minute after the making and subscribing of the oath. 60. The Returning Officer as RW-3 in his cross-examination had admitted the endorsement as to date and time of making and subscribing of the oath on Ex. PW-l/O is signed by him and that he had appended his signatures thereto after having read the time and date as recorded by RW-4, the Election Kanungo. He has further stated .that he could not correct the time recorded on Ex. PW-1/ O at the time of appending his signatures thereto due to rush of work and that due to oversight he could not notice the mistake. He has also stated that even at the time of scrutiny he could not see and notice the mistake as to time of oath as recorded in Ex. PW-l/O. In this regard his statement reads :— "...... It is correct that at the time of scrutiny, one of the point to be seen is whether the candidate is qualified as a candidate and for this purpose it is to be verified whether he had taken the prescribed oath after presentation of nomination paper. PW-l/O. In this regard his statement reads :— "...... It is correct that at the time of scrutiny, one of the point to be seen is whether the candidate is qualified as a candidate and for this purpose it is to be verified whether he had taken the prescribed oath after presentation of nomination paper. It is correct that at the time of scrutiny it was my duty to see that at what time the candidate Shri Jagdish Chander Bhardwaj has taken the oath. Even at the time of scrutiny due to over-sight I could not see that wrong time of administration of oath has been mentioned in Ex. PW-l/O....." 61. The explanation put forth by RW-3, the Returning Officer, that he could not notice the mistake as to the time recorded in Ex. PW-l/O due to rush of work stands belied by the narration of facts by him. RW-3 has admitted that nomination Ex. PW-l/N of Shri Jagdish Chander Bhardwaj was the first to be filed on 4.2.1998 at 12.45 p.m. The next nomination was filed on that day at 1.15 p.m. by Smt. Satya Devi. Only two nomination papers were presented on that day. The time gap between the filing of the two nomination papers was about 45 minutes. It is in the statement of RW-3 that it used to take 2 to 10 minutes in receiving the nomination paper, examination thereof, administration of oath and making of the endorsement as to date/time of presentation of nomination paper and administration of oath. If only two nominations were filed on the relevant date and oath was administered to only two candidates on that day, the total time taken must not have been more than 20 minutes. This according to RW-3 was rush of work. 62, The manner in which RW-3 appears to have conducted himself as Returning Officer at the time of receiving of nomination papers, examination thereof, administering the oath and scrutiny, it can be said that he was dealing with the matter in a very casual and routine manner and had infact left the entire work to the Election Kanungo and he has been signing the endorsements in a routine manner without himself looking into the correctness of the endorsements so made. Therefore, it cannot be believed and accepted that the time of oath due to a clerical mistake came to be mentioned as 12.44 a.m. 63. Therefore, it cannot be believed and accepted that the time of oath due to a clerical mistake came to be mentioned as 12.44 a.m. 63. Instructions issued by the Election Commission as contained in paragraph 23.5, Chapter V of the Hand Book to Returning Officers provides that the authorised person shall give a certificate to the candidate that he has made and subscribe the oath before him on that day at a particular hour. Such certificate is to be given without the candidate applying for it. The purpose of the certificate is to avoid all controversies later on as to whether the candidate had taken the oath or not. 64. Both RW-2 Shri Jagdish Chander Bhardwaj, the candidate, and RW-3, Returning Officer, have pleaded loss of memory and have stated that they do not remember if the requisite certificate was issued. They have admitted that a receipt in respect of the submission of nomination paper and oath was issued and that the time of presentation of nomination and administering of oath was duly mentioned in such receipt. Surprisingly enough, such receipt has not been produced by RW-2 which was the best evidence to show as to when the oath was made and subscribed by him. 65, RW-2 has also contradicted RW-3, the Returning Officer, and RW-4, the Election Kanungo, by stating that the endorsement with regard to date and time on Ex. PW-l/N and PW-l/O in respect of presentation of nomination paper and making of the oath was made by the Returning Officer himself in his presence when he was present before the Returning Officer across the table. As stated above, such endorsement has been admitted by both RW-3, the Returning Officer and RW-4, the Election Kanungo, to be in the hand of RW-4. 66. There is yet another significant aspect of the case. Article 173 (a), Constitution of India, requires that a candidate shall "make and subscribe" on oath before some person authorised in that behalf by the Election Commission. Paragraph 23.4, Chapter V, of the Hand-Book for Returning Officers, lays down the manner in which the oath is to be made and subscribed by the candidate, as follows :— "23.4 The oath or affirmation has first to be made and then signed by the candidate before the authorised person. Paragraph 23.4, Chapter V, of the Hand-Book for Returning Officers, lays down the manner in which the oath is to be made and subscribed by the candidate, as follows :— "23.4 The oath or affirmation has first to be made and then signed by the candidate before the authorised person. It should be borne in mind that mere signing on the paper on which the form of oath is written is not sufficient. The candidate must make the oath before the authorised person. The latter should ask the candidate to read aloud the oath and then to sign and give the date on the paper on which it is written. If the candidate is illiterate or unable to read the form the authorised person should read out the oath and ask the candidate to repeat the same and thereafter take his thumb impression on the form. In all cases, the authorised person should endorse on the form that the oath or affirmation has been made and subscribed by the candidate on that day and hour." 67. The question which arises is whether the oath was made and subscribed by RW-2 Shri Jagdish Chander Bhardwaj, in accordance with law. 68. RW-2 has deposed as under with regard to the making and subscribing of the oath, Ex. PW-l/O by him :— "The nomination form was presented by me to the Returning Officer after having signed the same. Similarly, the oath form was presented by me to the Returning Officer after having signed the same.....The nomination form and the oath form were filled in and signed by me in the room of the Returning Officer by sitting in one corner of the room." 69. As against the version of RW-2, the Returning Officer as RW-3 has stated that he had administered the oath to RW-2 immediately 2-3 minutes after the submission of the nomination paper and that RW-2 had signed the oath form Ex. PW-l/O in his presence. 70. Thus there is a material contradiction with regard to the making and subscribing of oath by RW-2 Shri Jagdish Chand Bhardwaj. If the testimonies of RW-2 and RW-3 are read together it can be inferred that oath Ex. PW-l/O appears to have been first subscribed by RW-2 and thereafter made by him. The law requires that oath first must be made and then subscribed by a candidate. If the testimonies of RW-2 and RW-3 are read together it can be inferred that oath Ex. PW-l/O appears to have been first subscribed by RW-2 and thereafter made by him. The law requires that oath first must be made and then subscribed by a candidate. Since the requirement of law was not fulfilled, RW-2 was not qualified to be chosen to fill a seat in the Legislature of the State. His nomination paper was, thus, improperly accepted by the Returning Officer. 71. Under Section 100 (l)(d) of the Act, an election petitioner has to show that the election, insofar as it concerns a returned candidate, has been materially affected by the improper acceptance of any nomination. 72. It has been found above that the nomination paper of RW-2 Shri Jagdish Chander Bhardwaj was improperly accepted by the Returning Officer. Therefore, it requires to be seen if the election of the respondent, the returned candidate, has been materially affected due to such improper acceptance of nomination paper of RW-2. 73. There is no denying that the respondent had secured 12,210 votes as against 12,184 votes polled in favour of the petitioner. The respondent was thus declared elected by a margin of 26 votes. Admittedly, RW-2, Shri Jagdish Chand Bhardwaj, whose nomination was improperly accepted had polled 598 votes. 74. It is well settled that the burden is on the election petitioner to prove that but for the improper acceptance of a nomination paper, the wasted votes polled by the candidate whose nomination was improperly accepted, would have been so distributed among the remaining candidates that a candidate other than the returned candidate would have secured the highest number of votes. 75. In J. Chandrasekhra Rao v. V. Jagapathi Rao and others [1997 Supp. (2) SCC 229], it has been held that it is for the election petitioner to prove by positive and reliable evidence that either improper acceptance of the nomination of the candidate or on account of the non-compliance with the provisions of the Constitution or the Act, Rules or Orders, etc., the wasted votes would have been distributed in such a manner among the remaining candidates that any candidate, other than the returned candidate, would have polled the highest number of valuable votes. Such a burden of proof may be difficult, say impossible, but the Courts cannot set aside the election of the returned candidate on surmises and conjectures, unless established by positive evidence that the election of the returned candidate has been materially affected. The demonstrated pattern of voting can be taken into consideration for reaching the conclusion with regard to the probable distribution of wasted votes among the validly nominated candidates. 76. In Chhedi Ram v. Jhilmit Ram and others [AIR 1984 SC 146], the election petitioner had secured 17449 votes as against 17622 secured by the returned candidate. The candidate, whose nomination was improperly accepted had obtained 6,710 votes, that is, about 20 times the difference between the number of votes secured by the returned candidate and the election petitioner. It was held :— ".....If the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of the case, the reasonable probability is all one way, a Court must not lay down impossible standards of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6,710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one-third. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one-third. Surely, in that situation, the result of the election may safely be said to have been affected." 77. The ratio laid down in Chhedi Lal’s case (supra) was taken note of in Shiv Charan Singh v. Chandra Bhan Singh and others [AIR 1988 SC 637] and after noticing that it did not lay down any different law, it was held that the said decision rested on its own facts. 78. In Satnam Singh v. Pushpa Devi [1988 Supp. SCC 65], the successful candidate had secured 23,006 votes. The defeated candidate had secured 20,735 votes. The difference in the votes being 2,271. The candidate, whose nomination was wrongly accepted, secured 3,606 votes. It was held:— "The appellant or any other party had not placed satisfactory evidence to reach the conclusion that all or a sufficient number of wasted votes which had been cast in favour of respondent 8 would have gone in favour of respondent 2, had respondent 8 not been one of the candidates at the election." 79. After referring to the ratio laid down in Vastest Narain Sharma v. Dev Chandra [AIR 1954 SC 513]; Samant N. Balakrishna v. George Fernadez [AIR 1969 SC 1201] and Lata Devi v. Haru Rajwar [AIR 1990 SC 19], it was further held that having regard to the facts of the case it was not possible to hold that the appellant had established that the result of the election of the returned candidate had been materially affected. The Court further observed :— "In our opinion the matter cannot be considered on possibility. Vashist Narains case insists on proof. If the margin of votes was small something might be made of the points mentioned by Mr. Jethmalani. But the margin is large and number of votes earned by remaining candidates also sufficiently large, there is no room therefore, for a reasonable judicial guess. The law requires proof. How far that proof should or what it should contain, is not provided by the Legislature.” [Emphasis supplied] 80. The abovesaid decision was relied upon and followed in J. Chandrasekhara Raos case (supra). 81. The law requires proof. How far that proof should or what it should contain, is not provided by the Legislature.” [Emphasis supplied] 80. The abovesaid decision was relied upon and followed in J. Chandrasekhara Raos case (supra). 81. The petitioner in paragraph 7 of his petition has averred:— "The fact that the result of the election has materially been effected, is obvious arid apparent from the fact that Shri Jagdish Chander Bhardwaj polled as many as 598 votes whereas the margin of the votes secured by the returned candidate i.e. the respondent and the candidate securing the next higher number of votes i.e. the petitioner is only 26 votes. The votes secured by Shri Jagdish Chander Bhardwaj is disproportionately large i.e. 23 times more than the margin of difference between the votes secured by the returned candidate and the petitioner who secured the next higher number of votes. As mentioned earlier the returned candidate Smt. Krishna Mohini respondent polled 12210 votes whereas the petitioner secured 12184 votes and the margin of difference is only 26. Had the nomination paper of said Shri Jagdish Chander Bhardwaj been rejected as required by law, the votes polled by him would have been polled in favour of the petitioner as those were anti establishment/ anti Congress votes. So, wrong and improper acceptance of the nomination paper of Shri Jagdish Chander Bhardwaj has materially effected the result of the election so far as it concerns the returned candidate. So, election of the respondent is liable to be declared void and set aside." 82. Such averments have not been specifically replied to and denied by the respondent in her written statement. Rule 3 of Order 8, Code of Civil Procedure provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Sub-rule (1) of Rule 5 of Order 8 further provides :— "Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court must in its discretion require any fact so admitted to be proved otherwise than by such admission. " 83. The object of the rule is to narrow the issues to be tried in the case and to enable either party to know what the real point is to be discussed and decided. The rule enacts what is called the rule of traverse in English Law and provides that allegation in the plaint will be deemed to have been admitted by the defendant unless in the written statement it is denied specifically or by necessary implication or it is stated that it is not admitted. 84. In Smt Kubja and others v. Smt Phulo and others [1977 PLJ 77 (HP)] there was a specific allegation in the plaint that both the parties belonged to the same family and that the disputed land situated in pargana Kaljun, formely belonged to their common ancestor. Such allegations, in the written statement were denied in a vague manner and it was pleaded that the defendants had no knowledge about it. Such vague and evasive reply by the defendants was not considered by this Court to be a denial of fact and relying on the ratio laid down by the Apex Court in Badat and Company, Bombay v. East India Trading Company [AIR 1964 SC 538], the same was considered as an admission of those facts on the part of the defendants. 85. In view of the specific averments made in paragraphs of the petition having not been denied by the respondent, either specifically or by necessary implication, it will, therefore, have to be presumed that such averments stand admitted by the respondent. 86. The petitioner while appearing as PW-2 has categorically stated that had the nomination of RW-2 Shri Jagdish Chand Bhardwaj not been wrongfully accepted, the votes polled by him (RW-2) were likely to be polled in his (petitioner) favour, since all such votes were anti-establishment and anti-Congress and the main content was between the parties. 87. RW-2, Shri Jagdish Chand Bhardwaj though in his examination-in-chief stated that had he been not a candidate, 598 votes polled by him, might have been cast in favour of the Congress candidate, that is, the respondent, during the course of cross-examination has gone to state : "I do not know who are the 598 voters, who had cast their votes in my favour. My above statement that these 598 voters would have cast their votes in favour of congress candidate had I not been a candidate is incorrect. In fact, I cannot say in whose favour they would have cast their votes, but such voters being of communist ideology were nearer to congress ideology." 88. It is pertinent to note that the respondent has not cared to step into the witness box either to rebut the averments made in paragraph 7 of the petition or the deposition made by the petitioner as PW-2 that had RW-2 not been a candidate, 598 votes polled by him were likely to be polled in his (petitioner) favour being anti-establishment and anti-congress votes. Therefore, on the failure of the respondent to step into the witness box to state her case on oath and to offer herself to be cross-examined by the other side, an adverse inference will have to be drawn in the present case against her. [See : Vidhyadhar v. Manikrao and another JT (2) SC 183]. 89. On the facts and in the circumstances of the case, it can be held that keeping in view the small difference in the number of votes polled by the parties and the number of votes polled by RW-2, which is 23 times the difference in the number of votes polled in favour of the parties, the election of respondent, the returned candidate, has been materially affected as a result of improper acceptance of the nomination paper of RW-2 Shri Jagdish Chand Bhardwaj. The issue is decided accordingly, in favour of the petitioner. Relief. 90. As a result of the above discussion and the findings recorded under Issues No. 3 and 4, the present petition is allowed and the election of the respondent, the returned candidate from 14-Solan Assembly Constituency, is declared to be void under Sections 100 (l)(c) and 100 (l)(d) of the Act. It is further directed that the substance of the decision be communicated by the Registrar General to the Election Commission of India, New Delhi, and the Speaker of the Himachal Pradesh Legislative Assembly forthwith. An authenticated copy of the judgment be also sent to the Election Commission of India, New Delhi, as required under Section 103 of the Act. The petitioner shall be entitled to costs of the present proceedings from the respondent, which are quantified at Rs. 5,500/-. Petition allowed.