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2002 DIGILAW 773 (JHR)

HARI KRISHNA LAL v. BABU LAL MARANDI

2002-07-18

D.N.PRASAD

body2002
Judgment : D. N. PRASAD, J. ( 1 ) THIS Election Petition has been filed under Section 81 read with Section 100 (i) C of the Representation of People Act, 1951 for declaring that the election of the respondent (Shri Babu Lal Marandi) to the Legislative Assembly of Jharkhand from 23, Ramgarh Assembly Constituency be held to be void. ( 2 ) THE case of the Election Petitioner in brief as stated is that the Governor of Jharkhand called upon the electors of 23 Ramgarh Assembly Constituency to elect one member to the Jharkhand Legislative Assembly caused due to the death of its sitting member Mr. Sabbir Ahmad Khureshi alias Bhenra Singh. Accordingly, Sub-Divisional Officer of Ramgarh was appointed as the Returning Officer by the Election Commission of India and following dates were prescribed for holding the said election : (a) Date for filing nomination- 25-01-2001 to 31-01-2001 nomination between 11. 00 a. m. to 3. 00 p. m. b) Date for scrutiny of nominations- 01-02-2001 3 (c) Date of withdrawal, if any, of nomination- 03-02-2001 (d) Date for polling, if necessary- 19-02-2001 (e) Date for counting of Votes- 23-02-2001 (f) Date for declaration of of the Result of the election- 23-02-2001 ( 3 ) THE petitioner being qualified to contest the said election filed his nomination on 31-1-2001 to the Returning Officer in his office. The respondent also filed his nomination paper to the Returning Officer on 31-1-2001. It is further claimed that the Returning Officer handed over a notice to the petitioner for filing information in a prescribed pro forma supported by an affidavit stating as to whether the petitioner was not disqualified to contest the election due to any conviction for committing any offence as required under Section 8 of Representation of the People Act, 1951. The prescribed pro forma and the form of affidavit were supplied to the petitioner by Returning Officer and the said information with affidavit was to file before 11 a. m. on 1-2-2001, which was the date fixed for scrutiny of the nomination. The scrutiny of the nomination took place on 1-2-2001 but the nomination of the petitioner was rejected by the Returning Officer. Polling of the Election took place on 19-2-2001, counting of the votes held on 23-2-2001 and on the same day, the respondent was declared elected to the Legislative Assembly of Jharkhand Assembly Constituency. The scrutiny of the nomination took place on 1-2-2001 but the nomination of the petitioner was rejected by the Returning Officer. Polling of the Election took place on 19-2-2001, counting of the votes held on 23-2-2001 and on the same day, the respondent was declared elected to the Legislative Assembly of Jharkhand Assembly Constituency. After filing his nomination on 31-1-2001, the petitioner came back to his home at Ranchi and he decided to file the aforesaid information and the affidavit on 1-2-2001 at the time of scrutiny of the nomination, but due to ill luck, one of the relatives of the petitioner died at Ranchi at Midnight on 31-1-2001 and, therefore, the petitioner could not file the aforesaid information and affidavit. Due to non-availability of the information and the affidavit which were asked for, his nomination paper was rejected by the order, which reads as follows :"i have examined this nomination-paper in accordance with Section 36 of the Representation of the People Act, 1951, and decide as follows : (Vernacular matter omitted) it is further alleged that the Returning Officer had no jurisdiction to reject the nomination paper on the ground of non-filing the information and the affidavit. The failure to file information and affidavit in support thereof cannot be a ground for rejecting the nomination of the petitioner. The petitioner is fully qualified and he has not been convicted for committing any offence whatsoever as well as his nomination paper does not suffer from any defect or irregularity and as such the nomination paper was rejected illegally. It is further alleged that the nomination paper of respondent ought to have been rejected as the respondents name is Babu Lal and his Surname is Marandi and he is recognized everywhere by this name Babulal Marandi alone and not by any other name or Surname, but the name of the respondent Babulal Marandi has not been enrolled as an elector in the electoral roll and as such the nomination paper of respondent suffers from a defect of substantial character which deserves to be rejected. Therefore, the election of the respondent is fit to be declared as void. ( 4 ) THE respondent filed the written statement claiming therein that the election petition as framed is not maintainable. Therefore, the election of the respondent is fit to be declared as void. ( 4 ) THE respondent filed the written statement claiming therein that the election petition as framed is not maintainable. It is further alleged that the petitioner did not comply the requirement which is essential for a valid nomination and therefore the Returning Officer rightly rejected the nomination paper of the petitioner. The petitioner has to furnish at least an affidavit to show that he is/was not involved in any criminal case and not convicted by any Court of law as mentioned in Section 8 of the Representation of People Act, 1951, which has not been complied with. The requirement to supply information about criminal antecedent of a candidate u/s. 8 of the Representation of People Act, 1951 is mandatory and in absence of the same the nomination paper is incomplete. It is further alleged that the name of the respondent printed in the Electoral roll as Babu Marandi instead of Babulal Marandi, but name of his father is correct, village is also correct and there was a mistake in printing as "lal" which cannot vitiate the election of the respondent as he had also filed an affidavit to this affect before the Returning Officer, Ramgarh on 29-1-2001, Annexure A with the written statement. The respondent had taken an oath as 4 required under law at the time of filing of nomination paper and as such there was no illegality or irregularity in the nomination paper of the respondent which was duly accepted by the Returning Officer. The election petition does not contain the material fact and the Returning Officer rightly rejected the nomination paper of the petitioner which was incomplete and as such the petitioner has got no cause of action, therefore, the petition is fit to be dismissed. ( 5 ) BY order dated 14-2-2002, following issues were framed on recast : (i) Whether the present election petition is maintainable? (ii) Whether Returning Officer rejecting the nomination paper of the petitioner on the sole ground of his failure to file such affidavit is an improper rejection within the meaning the term improperin Section 100 (1) (c) and Section 36 (2) of Representation of the People Act, 1950 (the Act)? (ii) Whether Returning Officer rejecting the nomination paper of the petitioner on the sole ground of his failure to file such affidavit is an improper rejection within the meaning the term improperin Section 100 (1) (c) and Section 36 (2) of Representation of the People Act, 1950 (the Act)? (iii) Whether the real name of the respondent Babulal Marandi is not registered in the electoral roll of any of the Assembly Constituencies of the Jharkhand Assembly and, as such, he is not qualified to contest the election from 23-Ramgarh Assembly Constituency? (iv) Whether there is any cause of action for foiling the election petition and whether there is compliance of the provisions of Section 8 of the Representation of the People Act, 1951? (v) To what relief or reliefs, if any, the petitioner is entitled? ( 6 ) ISSUE Nos. (i to iii) the above issues are taken up together for the sake of convenience and for consideration. None of the parties adduced oral evidence in the case. ( 7 ) IN the instant case, the election petitioner appeared in person and has argued that the Returning Officer rejected the nomination paper of the petitioner illegally as the Returning Officer has no jurisdiction to reject the nomination paper on the ground of non-filing of information and the affidavit. It is further submitted that the affidavit is not an integral part of the prescribed nomination paper which was sought for u/s. 8 of the Representation of the People Act, 1951 and is outside the provision and purview of Section 36 (2) of the Representation of the People Act. The improper rejection of the nomination of the petitioner has materially affected the result of the election of the respondent, who is the returned candidate, as the petitioner is fully qualified and is not disqualified to be chosen to fill a seat in the State Legislative Assembly or Parliament as well as the petitioner was the former Principal of Chotanagpur Law College and has also been a Member of Senate, Syndicate and Examination Board of Ranchi University. ( 8 ) THE respondent has not specifically denied in his written statement and the facts which have not been specifically denied are said to be admitted. ( 8 ) THE respondent has not specifically denied in his written statement and the facts which have not been specifically denied are said to be admitted. It is further argued that the respondents name is Babu Marandi as indicated in the electoral roll but the name of the respondent, Babulal Marandi has not been enrolled as an elector in the electoral roll, of any Constituency and as such the respondent is not competent to contest the said election. Therefore, the nomination paper filed to the Returning Officer suffers from a defect of substantial character. The petitioner also relied upon the cases of Kumara Nand v. Brijmohan Lal Sharma, AIR 1967 SC 808 ; Charan Lal Sahus v. Giani -ail Singh, AIR 1984 SC 309 ; Dharti Pakar Madan Lal Agrawal v. Rajiv Gandhi, AIR 1987 SC 1577 and N. T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422 . ( 9 ) ON the other hand, Mr. B. S. Lal, the learned counsel appearing on behalf of the respondent contended before me that this election petition is not maintainable as the petitioner was required to give information to the Returning Officer for which the petitioner was duly noticed but failed to comply the order of the Returning Officer and, therefore, the nomination paper is itself incomplete. Thus, the rejection of the nomination paper is legal and the Returning Officer has rightly rejected the nomination paper as the petitioner has not given the information as required by the Returning Officer as well as the petitioner was not present at the time of scrutiny, nor any explanation for non-supply of the information was given. It is further submitted that it was the onus upon the election petitioner to prove his case who alleges about illegality in passing the order of rejection but neither any witness has been adduced nor any document has been placed to substantiate the pleading. It is further argued that there is no illegality in accepting 5 the nomination paper of respondent as the respondent had already filed a petition before the Returning Officer on 29-1-2001 stating therein that he is known as Babu Lal Marandi son of Chota Marandi and he had supplied the Electoral roll as required u/s. 33 (5) of the Representation of the People Act, 1951. Moreover, the Returning Officer after being satisfied as required u/s. 33 (4) of the Representation of the People Act accepted the nomination paper which is valid and correct as well as no any objection was ever raised at the relevant time i. e. at the time of scrutiny. The learned counsel appearing on behalf of the respondent also relied upon the cases of Ashwini Kumar Sharma v. Yaduwans Singh, AIR 1998 SC 337 and Union of India v. Association for Democratic Reforms, 2002 AIR SCW 2186. ( 10 ) ADMITTEDLY, at the time of filing nomination paper, the Returning Officer handed over a notice to the petitioner in order to satisfy that the petitioner was not disqualified to contest the election due to any conviction for committing any offence as required under Section 8 of the Representation of the People Act and the Returning Officer required the petitioner to file an information by filling a pro forma supported by an affidavit of which a typed copy of prescribed pro forma and a form of affidavit were also supplied to the petitioner at the relevant time, but the petitioner did not comply the said direction/instruction, nor any information was given by the election petitioner in compliance of the requirement of Section 8 of the Representation of the People Act, 1951 and he failed to discharge the onus by not giving information. ( 11 ) IT is pleaded that the petitioner could not file the said information and affidavit as one of the relatives of the petitioner died at Ranchi at Midnight on 31-1-2001, but surprisingly enough to note here that petitioner has neither named his relative said to have died in the midnight of 31-1-2001, nor he had appeared before the Returning Officer on 1-2-2001 explaining the position when scrutiny of the nomination was taken place. No any witness has been examined in the case on behalf of the election petitioner on this score and as such the election petitioner can be said to have failed to establish such fact in proving the same. ( 12 ) SECTION 8 of the Representation of the People Act, 1951 deals about disqualification on conviction for certain offence. No any witness has been examined in the case on behalf of the election petitioner on this score and as such the election petitioner can be said to have failed to establish such fact in proving the same. ( 12 ) SECTION 8 of the Representation of the People Act, 1951 deals about disqualification on conviction for certain offence. Section 8 (3) of Representation of the People Act reads as under :"a person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. " ( 13 ) ARTICLE 191 (l) (e) of the Constitution of India deals about disqualification of a person for being chosen as a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified by or under any law made by Parliament. ( 14 ) I have already discussed above that Section 8 of the Representation of the People Act clearly dealt with about disqualification on conviction for certain offences and for being satisfied by the Returning Officer, it is essential to get the information from the person concerned about the fact whether convicted or not and to this effect, the Returning Officer already supplied a pro forma along with affidavit to the petitioner for giving such information and that information has not been supplied by the election petitioner. It is also settled that the Returning Officer is the competent authority to be satisfied about the requirement of Section 8 of the Representation of the People Act. During the scrutiny, the Returning Officer is under a Statutory duty to satisfy himself that the candidate who may have filed the nomination paper possess the constitutional qualification for contesting the election. Inquiry during scrutiny, a summary in nature as there is no scope for any elaborate inquiry at that stage. ( 15 ) ARTICLE 324 of Constitution of India gives the superintendence power to the Returning Officer and for which the Returning Officer is empowered to pass order, direction, and instruction for holding free and fair poll. Article 324 of the Constitution says as under :"324 (1 ). ( 15 ) ARTICLE 324 of Constitution of India gives the superintendence power to the Returning Officer and for which the Returning Officer is empowered to pass order, direction, and instruction for holding free and fair poll. Article 324 of the Constitution says as under :"324 (1 ). The superintendence, direction 6 and control of the preparation of the electoral roll for, and the conduct of, all elections to Parliament and to the Legislature of every State and of Elections to the offices of President and Vice-President held under this Constitution. . . . shall be vested in a Commission. " ( 16 ) IT has been clearly held in the case of Union of India v. Association for Democratic Reforms (2002 AIR SCW 2186) (supra),"the jurisdiction of Election Commission is wide enough to include all powers necessary for smooth conduct of election and word election is used in a wide sense to include the entire process of an election which consists of several stages and embraces many steps. In case where law is silent, Article 324 is a reservoir of power to act for avowed purposes having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power of the Commission in its own right as a creature of the Constitution in the infinite of situation that may emerge from time to time in a large Democracy as every contingency could not be foreseen or anticipated by the enacted laws or the Rules. ( 17 ) IT is quite evident that the election petitioner was duly noticed by the Returning Officer for filing information supported with an affidavit which has not been complied with giving clear indication that the election petitioner himself violated the direction of the Returning Officer and did not explain about the fact of non-compliance of the requirement of Section 8 of the Representation of the People Act, 1951. In absence of such information, the nomination paper cannot be said to be complete and proper as well as the Returning Officer after being fully satisfied, passed the order rejecting the nomination paper of the election petitioner which cannot be held to be improper or illegal. In absence of such information, the nomination paper cannot be said to be complete and proper as well as the Returning Officer after being fully satisfied, passed the order rejecting the nomination paper of the election petitioner which cannot be held to be improper or illegal. ( 18 ) FROM going through the copy of the Electoral Roll, the name of the respondent has been mentioned as Babu Marandi son of Chotu Marandi and to this effect, the respondent had already filed a petition on 29-1-2001 before the Returning Officer explaining the position before the date of scrutiny and he had also filed an affidavit to this effect being Annexure 6. Section 33 (4) of the Representation of the People Act, 1951 reads as under :"on the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: provided that on misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with regard to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected where necessary, direct that any such misnomer inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. " ( 19 ) THUS, it obvious that it is the Returning Officer who should satisfy himself about the name of the candidate and his proposer as being the same as those entered in the Electoral Roll. " ( 19 ) THUS, it obvious that it is the Returning Officer who should satisfy himself about the name of the candidate and his proposer as being the same as those entered in the Electoral Roll. The respondent had already filed a petition and an affidavit before the scrutiny of the nomination paper to the Returning Officer and after being satisfied that the name of the respondent as entered in the nomination paper is the same and similar and accordingly accepted the nomination paper. Obviously, the respondent had filed a petition before the Returning Officer on 29-1-2001 stating that his correct name is Babulal Marandi son of Chotu Marandi, but in the Electoral Roll, it has been printed as Babu Marandi by mistake. He also filed an affidavit to this effect dated 31-1-2002 stating that he may be known as Babu Marandi alias Babulal Marandi son of Chotu Marandi. The fathers name is correct, the village name has also been correctly described and the Returning Officer after being satisfied as being same person, had 7 accepted the nomination paper. So, it depends upon the satisfaction of the Returning Officer himself. There was no any objection raised before the Returning Officer in this respect and as such the nomination paper of the respondent was rightly accepted. ( 20 ) HAVING regard to the above discussion and consideration of the case, the aforesaid issues are decided against the election petitioner and the election petitioner is not maintainable. ( 21 ) ISSUE Nos. IV and V the election petitioner was given written notice for filling up a pro forma supported by an affidavit for compliance of Section 8 of the Representation of the People Act, 1951 and admittedly the election petitioner has not filed any such information to the Returning Officer till the scrutiny of the nomination paper. Section 8 of the Representation of the People Act deals about disqualification of the candidate for being convicted and sentenced to imprisonment for not less than two years. In compliance of the requirement of Section 8 of the Representation of the People Act, 1951, it was essential that such information with affidavit ought to have been filed by the candidate for which the petitioner was already noticed. In compliance of the requirement of Section 8 of the Representation of the People Act, 1951, it was essential that such information with affidavit ought to have been filed by the candidate for which the petitioner was already noticed. Moreover, the Returning Officer, who is the competent authority to conduct the election free and fair, is to be satisfied about candidature and the nomination paper must be completed in the prescribed form, but the nomination paper of the election petitioner cannot be said to be complete due to non-supply of the information with affidavit as required by the Returning Officer and as such there was no compliance of provision of Section 8 of the Representation of the People Act by the petitioner. ( 22 ) THUS, I find that the election petitioner has got no cause of action and as such he is not entitled to get any relief. Thus, the aforesaid issues IV and V are also decided against the petitioner. ( 23 ) IN the result, I do not find any merit in this application, which is dismissed. However, in the facts and circumstances of the case, there is no order as to costs. Application dismissed. --- *** --- .