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2003 DIGILAW 589 (PAT)

Shiv Kumar Prasad Singh v. Surendra Prasad Yadav

2003-05-21

P.K.DEB

body2003
Judgment P.K.Deb, J. 1. This case has been filed under Sections 80, 80A and 81 of the Representation of People Act, 1951 challenging the returning of the respondent Surendra Prasad Yadav as an elected member of the Bihar Legislative Assembly from 247 Belaganj Assembly Constituency which was held on 12.2.2000. Assembly election in respect of various constituencies in the State of Bihar was done in the early part of the year 2000. Accordingly, election was also held in respect of the impugned Assembly constituency, namely, 247 Belaganj Assembly Constituency. The programme of relevant dates for the said election was as follows :- The last date of filing of the nomination paper24.1.2000 Scrutiny of nomination paper by the Returning Officer25.1.2000 Last date for withdrawal of candidature 27.1.2000 Date of Poll12.2.2000 Date of counting of ballots25.2.2000 Date of declaration of final result26.2.2000 2. According to the election petitioner he was an elector of the neighbouring Assembly constituency in the name and style of 246 Ghoshi Assembly Constituency (Jehanabad) and his serial number was 637 in the electoral roll part 200. It was also the case of the election petitioner that Sub-divisional Officer, namely, Tulsi Hazra of Tekari Sub-division of District Gaya was the Returning Officer on the basis of the notification issued by the Governor of Bihar. According to the election petitioner he alongwith 13 other candidates including the respondent Surendra Pd. Yadav had filed nomination papers on the last day of filing of nomination paper on 24.1.2000. As per provision of Section 33 of the Representation of People Act the time frame for filing of nomination paper was within 11 a.m. to 3 p.m. According to the election petitioner he had filed nomination paper within the time frame as per provision of the Act but still then on 25.1.2000 when scrutiny of nomination papers were held, his nomination paper was rejected as per Section 36(b)(2) of the Representation of People Act holding that the nomination paper of the petitioner was filed at 3-10 p.m. i.e. beyond the prescribed period. In total 13 (thirteen) candidates whose nomination papers were accepted on scrutiny had fought out the election and ultimately the respondent Surendra Pd. Yadav was declared as elected from the Assembly Constituency. In total 13 (thirteen) candidates whose nomination papers were accepted on scrutiny had fought out the election and ultimately the respondent Surendra Pd. Yadav was declared as elected from the Assembly Constituency. It is the further case of the petitioner that when his nomination paper was accepted on being filed within the time frame as contemplated under Section 33(1) of the Representation of People Act, a notification was issued as per provisions of the Act on that very date i.e. on 24.1.2000 under Form 3A as per Rule 7 which totally revealed that the petitioners nomination paper was filed within 3 p.m. but still then the nomination paper of the petitioner was illegally rejected by the Returning Officer, on the next date holding that it was filed beyond the period of time. As the petitioners plea is to set aside the election of Surendra Pd. Yadav the returned candidate, the present petition was filed under the provisions of the Act as mentioned above. The other candidates had not been made party to this election petition as no further prayer was made from the side of the petitioner for declaring him elected. 3. A detailed written statement has been filed by the sole respondent denying all the allegations made in the election petition. Besides taking technical pleas regarding the maintainability of the election petition on stating the same to be violative of different provisions of the Representation of People Act, the contention of the petitioner that he had filed the nomination paper within the prescribed period has been categorically denied. It is the case of the respondent that the election petitioner appeared before the Assistant Returning Officer after expiry of the prescribed period and pressed for filing of the nomination paper. The Assistant Returning Officer was not agreeable to accept his nomination paper. But as the candidate alongwith his supporters and an Advocate were pressurising to accept the nomination paper then on consultation with the Returning Officer the Assistant Returning Officer had accepted the nomination paper by noting down the time of filing of the nomination paper at 3-10 p.m. on the body of the nomination paper itself and at the prescribed place of time regarding swearing of affidavit alongwith the nomination paper. It is the further contention that as Form 3A was a printed prescribed form having the time mentioned at 3 p.m. and when the petitioners case is beyond the period of 3 p.m. then by pencil the time was mentioned as 3-10 p.m. and the office copy of the same reveal so. But then the petitioner must have snatched away the form 3A from the office notice Board and then to make out a case for himself with time frame by erasing the pencil-mentioned time in the form itself. 4. On the basis of the pleadings of the parties the following issues were framed vide order dated 26.11.2001 :- (1) Whether the election petition as framed and presented is maintainable? (2) Whether the election petition is liable to be dismissed for non-compliance of Sections 81, 82, 83 and 117 of the Representation of People Act, 1957 and also under Section 87 of the said Act? (3) Whether the nomination paper of the petitioner has been improperly rejected resulting in winning of respondent no.1? (4) Whether the election petitioner is entitled to any relief? After framing of the issues and other formalities being done the case was fixed for evidence of the parties. Then a petition was filed for and on behalf of the respondent to hear the issues of maintainability as framed above as preliminary one but by that time the election petitioner had already appeared for evidence and then his evidence was recorded. But then as being pressed from the side of the sole respondent, the maintainability matter was heard on the petition filed under Section 83 of the Representation of People Act read with Order 7, Rule 11 of the Code of Civil Procedure for summary dismissal of the election petition. 5. After hearing the counsel for both the parties at length both on facts and on points of law, this Court vide order dated 10.4.2002 held that there was no force in the petition filed by the respondent and hence the same was dismissed. Against that order passed by this Court the respondent went to the Apex Court by filing Civil Appeal no. 3502 of 2002 but the said Civil Appeal had been dismissed by order dated 8.5.2002. Hence, the election petition proceeded as usual after taking down evidence of the witnesses of the parties. 6. Against that order passed by this Court the respondent went to the Apex Court by filing Civil Appeal no. 3502 of 2002 but the said Civil Appeal had been dismissed by order dated 8.5.2002. Hence, the election petition proceeded as usual after taking down evidence of the witnesses of the parties. 6. For and on behalf of the election petition in total 8 (eight) witnesses have been examined. P.W.1 Shiv Kumar Pd. Singh is the election petitioner himself. He supported his allegations in the election petition although at some places he deviated from his statements. However, this witness has been cross-examined at length from the side of the respondent. The contention of the election petitioner remains that he had submitted nomination paper at 2-55 p.m., on 24.1.2000 and not after expiry period i.e. at 3-10 p.m. as alleged. P.W.2 Ajit Kumar happens to be a lawyer of the Civil Court at Gaya. He supported the case of the election petitioner to the effect that he accompanied him to the office of the returning officer in filing of nomination paper and that the nomination paper was filed at 2-55 p.m. According to him, he came out of the office of the Returning Officer at 3-30 p.m. but the nomination paper was submitted within time. This witness has also been cross-examined at length. It was specifically put to him that in his presence the Returning Officer had put down time etc. in the nomination paper itself. He denied so but admitted that something was written by the Returning Officer in the nomination paper but they did not raise any objection for such noting by the Returning Officer. P.W.3 Arvind Singh, P.W.4 Amresh Kumar, P.W.5 Kedarnath Verma were the proposers of the election petitioner and, according to them, as stated on the same voice, that they were present and had seen the election petitioner submitting his nomination paper before the expiry period. It was also in their evidence that no receipt was given for submission of the nomination paper as required under the law by the Returning Officer to the election petitioner but no objection was raised for non-granting of such receipt either by the election petitioner or his lawyer or by the proposers. It was also in their evidence that no receipt was given for submission of the nomination paper as required under the law by the Returning Officer to the election petitioner but no objection was raised for non-granting of such receipt either by the election petitioner or his lawyer or by the proposers. P.W.6 Awadhesh Prasad Singh had also accompanied the election petitioner in submission of his nomination paper and he has also deposed in the same line as that of the other witnesses but very peculiarly in the cross-examination he stated that when they entered for filing of nomination paper then office of the Returning Officer was vacant although other witnesses had said when they entered they saw other candidates submitting their nomination papers. Arvind Prasad (P.W.7) is another proposer of the election petitioner. He had also deposed on the same line. According to him, nomination paper was submitted at 2-50 p.m. but it was wrongly shown afterwards by the Returning Officer as 3-10 p.m. He also stated that he saw the Returning Officer writing something on the nomination paper at the time of filing of it but they did not raise any objection regarding such writing in the nomination paper. P.W.8 Ravindra Prasad is also another proposer of the election petitioner and deposed on the same line. The sum and substance of the evidence of the witnesses from the side of the election petitioner is that the nomination paper was submitted at 2-55 p.m. by the election petitioner and that the Returning Officer had wrongly manipulated the records to show that the nomination paper was submitted at 3-10 p.m. and the same would be clear from the Form 3A wherein time mentioned was 3 p.m. and that no receipt of filing of nomination paper was granted to the election petitioner. 7. For and on behalf of the respondent, 8 (eight) witnesses have been examined. But star witnesses for and on behalf of the respondent are two official witnesses, namely, D.W.1 Tulsi Hazra, who was the Returning Officer and D.W.2 Diwan Jaffar Hussain Khan, who was the Assistant Returning Officer. 7. For and on behalf of the respondent, 8 (eight) witnesses have been examined. But star witnesses for and on behalf of the respondent are two official witnesses, namely, D.W.1 Tulsi Hazra, who was the Returning Officer and D.W.2 Diwan Jaffar Hussain Khan, who was the Assistant Returning Officer. They have deposed on the same voice and in unequivocal terms that the nomination paper of the election petitioner was submitted beyond the period of 3 P.M. It is the categorical case that when the acceptance of the nomination paper was closed at 3 P.M. then the election petitioner appeared along with his lawyer and other supporters and started pressing the Assistant Returning Officer to accept his nomination paper. He was not agreeable to it but when pressures were mounted, on consulting with the Returning Officer and as per his advice to avoid any untoward incident, the nomination paper was accepted by noting down the time of filing of the nomination paper in the nomination paper itself. It is also stated by both the witnesses that during the period of training before election they were advised to accept nomination paper also beyond time to avoid embarrassment or harassment but then time should be mentioned in the body of the nomination paper and also in the receipt granted to the candidate. It is also their case that Form 3A as required under Rule 7 of the mandatory rules framed under the Representation of People Act was hung by noting down the time of filing of the nomination paper of the petitioner at 3-10 p.m. by means of a pencil and office copy also shows so but perhaps while snatching away such form from the Notice Board the petitioner had manipulated and erased the time mentioned by pencil. The other witnesses viz. D.W.3 Surendra Kumar, D.W.4 Lal Dev Yadav, D.W.5 Uma Shankar, D.W.6 Surendra Prasad Yadav, D.W.7 Mohan Srivastava and D.W.8 Lekhraj Yadav were present, at the precincts of the Returning Officer, as deposed by them and they had seen the election petitioner entering into the premises of the S.D.O. after 3 P.M. along with his supporters and coming out at about 3-30 p.m. According to them, there could have been no occasion of filing of nomination paper by the election petitioner before 3 P.M. 8. Besides above oral evidence both the parties exhibited several documents in their favour. Besides above oral evidence both the parties exhibited several documents in their favour. The election petitioner has exhibited the Notice hung in the Format-3A under Rule 7 of the Conduct of Election Rules under the Representation of People Act (in short Act.) That document has been marked as Ext.1. This has been exhibited from the side of the election petitioner bringing from the custody of election petitioner himself, although, it is an official document practically put in the custody of the Returning Officer. But it appears that after such document/Notice have been hung in the wall of the office premises of the Returning Officer, the same was snatched away or taken away by the election petitioner for the purpose of creating a ground for the election petition in his favour. Practically, this document is the only vital document for the election petitioner on the basis of which the whole allegations in the election petition has been made. This document is a printed format document wherein as per Rule 7 of the Conduct of Election Rules the nomination papers which were accepted up to the period of 3 p.m. were to be hung in the Notice Board for a notice to the intending candidates who had filed nomination papers to inform them about the date and time of scrutiny of the nomination papers including giving details of the nomination paper itself in different columns. The time 3 p.m. is already printed one in the document itself. It is the case of the election petitioner that no further time is mentioned except that of 3 P.M. in such Notice. But, according to the respondents, by pencil- "10 P.M." had been added but the same had been erased. It is a matter of adjudication which will be considered under proper issue. 9. Nomination paper in original of the petitioner had been called for and the same has been marked as Ext.2. Different portions of Ext.2 had also been marked from the side of the parties. On the forefront and at the top of the nomination paper with the signature of Assistant Returning Officer, time was mentioned as 15.10 date being 24.1.2000. Such time has also been mentioned in the affidavit portion of the nomination paper. Different portions of Ext.2 had also been marked from the side of the parties. On the forefront and at the top of the nomination paper with the signature of Assistant Returning Officer, time was mentioned as 15.10 date being 24.1.2000. Such time has also been mentioned in the affidavit portion of the nomination paper. The portion regarding date and time which was to be filled up by the Returning Officer also show the time as 15.10 the date being 24.1.2000 in different places and those have also been marked exhibits in the case. 10. For and on behalf of the respondent following documents have been exhibited. Ext.A is the full order-sheet of the Returning Officer. Ext.A/1 has been marked portion of the ordersheet wherein time frame has been mentioned with seriality of that of the election petitioner. Ext.A/2 is the signature of the Returning Officer to that effect. Ext.A/3 is the order passed by the Returning Officer giving reasonings regarding the rejection of the nomination paper of the election petitioner. Ext.B is the office copy of Ext.1 which is the carbon copy of Ext. 1 as alleged from the side of the respondent being produced from the office of the Returning Officer. Herein in the carbon copy after 3, "10" had been shown can be there in carbon. No other papers have been exhibited, although, various other documents had been called for in the case, perhaps, those were not necessary to be exhibited as the crux of the dispute is regarding time frame of filing of the nomination paper by the election petitioner and rejection thereof. 11. Now, let me take up to adjudicate the election petition and decision thereof by taking the matter issuewise as already framed and mentioned in the preceding paragraphs. Findings and reasons thereof : 12. Issue no.1 - This issue has not been pressed during the course of argument from the side of the respondent and practically there was no scope to press this issue also as on the basis of that issue a petition was filed by the respondent under Section 83 of the Act read with Order VII, Rule 11 of the Code of Civil Procedure for summary dismissal of the writ petition on the ground of maintainability. That petition was heard and a decision had already been given in favour of the election petitioner vide order dated 10.4.2002 and in that way the election petition in its present form has been held to be maintainable and even, though, challenged before the Apex Court such decision remained final and hence the present issue is again being decided in the affirmative and in favour of the election petitioner. 13. Issue no.2 - This issue has also not been very much pressed during the course of argument from the side of the learned counsel appearing for and on behalf of the respondents. Section 81 of the Act, the election petition is required to be presented by the election petitioner himself and the same should include the grounds for which the election can be challenged as contemplated under Sections 100 and 101 of the Act and must be filed within a prescribed period and the same should also be accompanied as many as copies as to the number of the respondents are there. The election petition was filed before this Court on 10.4.2000 alongwith proper grounds and the copies required for the purpose and the same was accepted by a Bench of this Court who was designated as Election Judge as required under the Act itself. In that way, Section 81 of the Act has been complied with. Section 82 of the Act relates to parties to the election petition. When in election petition besides setting aside the election further prayer for declaring the election petitioner or any other candidate to be elected is there then all the persons/candidates who were in the fray should be added as respondents in the case. But in the present case except setting aside the result of the election declaring respondent no.1 is elected no other prayer has been sought for and practically when illegal rejection of nomination paper of the election petitioner is claimed, no further relief can also be claimed from the side of the election petitioner. In that way, there is no defect in making the winning candidate as a sole respondent in the case under Section 82 of the Act. Under Section 83 of the Act concise statement of material facts are to be included but material particulars are required when the election is sought to be set aside on the ground of corrupt practice. In that way, there is no defect in making the winning candidate as a sole respondent in the case under Section 82 of the Act. Under Section 83 of the Act concise statement of material facts are to be included but material particulars are required when the election is sought to be set aside on the ground of corrupt practice. Here, there is no question of corrupt practice. The only plea is illegal rejection of the nomination paper and that plea by the election petitioner in the election petition itself has been considered in the earlier order regarding the maintainability of the election petition by this Court which does not require to be reiterated again. Section 87 of the Act has not been stated in any way violated and hence, the election petition cannot be said to be bad under Section 87 of the Act. Section 117 of the Act requires deposit of security cost. The same has already been deposited at the time of filing of the election petition itself with a chalan to the tune of Rs. 2,000/- and the same is revealed from the initial order dated 10.4.2000. In that way, all the necessary formalities as required for filing of the election petition has been properly done from the side of the election petitioner and the election petitions has been filed within the prescribed period of time and, hence, the election petition is definitely maintainable and there is nothing to hold against the maintainability of the election petition. This issue is decided in the affirmative and in favour of the election petitioner. 13. Issue no.3 - This issue is the vital issue for the purpose of result of this election petition. If it is found that the nomination paper filed by the election petitioner has been illegally rejected during the course of scrutiny as contemplated under Section 36 of the Act then the election petition should be allowed straightaway. The admitted position remains that 24.1.2000 was the last date for filing of the nomination papers by the intending candidates as notified by the Election Commission for 247 Belagunj Assembly Constituency. On that date several candidates had submitted their nomination papers and the election petitioner had also submitted the same. As has been submitted by the election petitioner he was a candidate of Samata Party but he was not given the official candidature of Samata Party. On that date several candidates had submitted their nomination papers and the election petitioner had also submitted the same. As has been submitted by the election petitioner he was a candidate of Samata Party but he was not given the official candidature of Samata Party. He then changed the political party and became a candidate of Rastrabadi Congress Party. That party was not recognised political party at that time. He was to submit his nomination paper being proposed by the ten electors. In the election petition nowhere it has been stated specifically by the election petitioner regarding the time when he had exactly submitted his nomination paper. But it was only stated in the election petition that he had submitted his nomination paper within the prescribed time i.e. 3 P.M. Only before this Court at the time of adducing evidence the election petitioner came with a specific plea that he had submitted his nomination paper at 2-50 p.m. In that way, definitely the election petition lacks in specifying proper materials. It might be a material particular as has been submitted from the side of the respondents counsel and in that way the election petition may not be construed to be bad but the fact remains that when no specific time has been given in the election petition itself then when specific materials are not there in that respect the respondent could not get proper opportunity in opposing the same. Be that what it may, I am not taking the nonmentioning of the specific time as a vital one regarding the election petition. But definitely such omission goes on the root to weaken the case of the election petitioner. 14. It is the contention of the election petitioner that when the nomination paper was accepted by the Returning Officer or the Assistant Returning Officer then it must be construed that the nomination paper has been submitted in the proper way as has been prescribed under Section 33(1) of the Act. The Returning Officer or the Assistant Returning Officer has got no authority to accept any nomination paper after the expiry of the prescribed period and when acceptance is there then it must be construed to be accepted within time frame. The Returning Officer or the Assistant Returning Officer has got no authority to accept any nomination paper after the expiry of the prescribed period and when acceptance is there then it must be construed to be accepted within time frame. In this regard paragraph-12(2) of the chapter "Nomination" in the Hand Book of the Returning Officer has been referred to wherein details have been given as to how the nomination paper is to be accepted from the person who had entered inside the office of the Returning Officer within the prescribed period. But these are not the case of anybody that the election petitioner had entered inside the office of the Returning Officer before the expiry time rather when he was reaching the office of the Returning Officer the time had already expired it was the case of the respondent. This is the firm case of the election petitioner that he entered inside the office of the Returning Officer at about 2-30 RM. and he had submitted the nomination paper before the Assistant Returning Officer at 2-55 RM. Although the other witnesses of the election petitioner have stated about the above time frame but the election petitioner himself had deviated from his own case although in the cross-examination had corrected himself. Be it what it may, in the position and circumstances, it cannot be said that Para-12 (2) of the Instructions are applicable in the present position. Then one point remains to the effect that the Returning Officer or the Assistant Returning Officer had no authority to accept any nomination paper which had been filed or admitted to be filed beyond the time frame and, as such, it is the contention of Mr. Sharma, learned senior counsel appearing for and on behalf of the election petitioner that from the wordings of Section 33 of the Act it is clear that presumption should be there in favour of the election petitioner that he had submitted the nomination paper within the prescribed time. But Mr. Birendra Pd. learned advocate appearing for and on behalf of the respondent, has submitted that such presumption might be there but that alone does not take away the authority of the Returning Officer or the Assistant Returning Officer even to accept the nomination paper even after the expiry of time after putting time on it which has exactly been done in the present case. His submission is that if that power ought not have been there then the question of rejection of the nomination paper in violation of the provision of Section 33 or 34 of the Representation of People Act would not have been included under Section 36(2) (b) of the Representation of People Act. In this respect paragraphs 13, 14 and 15 of the judgment of the Apex Court as reported in 1959 (SC) 93 (Sri Baru Ram V/s. Shrimati Prasanni & others) has been referred to. It is also clear from the evidence of the two official witnesses, namely, D.W.1 and D.W.2 to the effect that the election petitioner had appeared before them after the period was over i.e. after 3 P.M. and when pressed for accepting the nomination paper, the Assistant Returning Officer was reluctant to do it although there was instruction during the course of training to the effect that if the nomination paper is submitted just after the expiry period, to avoid unnecessary harassment such nomination paper may be accepted at the discretion of the Returning Officer by mentioning time at the top of the nomination paper itself and, thus, as per advice of the Returning Officer i.e. D.W.1 the nomination paper of the petitioner was accepted by noting down the time in the nomination paper itself. Such evidence of the two officials could not be dislodged by lengthy cross-examination from the side of the election petitioner and it has also been submitted by all the witnesses of the election petitioner during the course of cross-examination that after the nomination paper was submitted something was written on the body of the nomination paper itself by the Assistant Returning Officer but the same noting had never been challenged from the side of the election petitioner or his men. The nomination paper itself shows that time was mentioned for filing of the nomination paper at 3-10 P.M. and the same remains unchallenged to the fact that at the time of filing of nomination paper the same was written by the Assistant Returning Officer although it is the case of the election petitioner that time frame has been manipulated afterwards and their plea is resting mainly on the star document Ext.1 i.e. Form-3A. 15. 15. The format of the nomination paper as revealed under Section 34 of the Representation of People Act requires that after the nomination paper is being submitted then a certificate is to be issued by the Returning Officer to the candidate concerned specifying the time, date and place of scrutiny. The nomination paper which has been called for from the office and has been marked as Exhibit also reveals that such certificate portion is not there meaning thereby the same must have been given to the candidate concerned. Very peculiarly in the election petition, the election petitioner had not stated anything regarding such certificate but during the course of evidence it has been stated that no such certificate has been granted to the election petitioner. This is of vital importance. The receipt of the nomination paper is a mandatory provision to be granted to the candidate concerned and if the same had really not been given to the petitioner then that was a vital ground for challenging the action of the Returning Officer but the election petitioner kept mum regarding that aspect throughout his election petition. It is the case of the respondent and also the official witnesses D.W.1 and D.W.2, who had no animus admittedly with the election petitioner specifically stated that on submission of nomination paper, receipt was granted to the election petitioner and the nomination paper which has been called for from the office also reveals that the receipt portion is not there meaning thereby the same must have been granted to the candidate concerned. In that way, it could well be presumed that such receipt has been suppressed by the election petitioner otherwise the election petitioner would not be in a position to file this election petition. The presumption as contemplated under Section 14 of the Evidence Act would remain so that if certificate would have been produced would have given the date and time when the nomination paper was submitted and non-submission of the same and not saying anything about the certificate in the election petition can be construed to be a suppression from the side of the election petitioner and would give a fatal blow to the case of the election petitioner itself, towards adverse presumption. 16. This question of suppression has also been considered by the Apex Court in the case of Harjit Singh Mann V/s. Umraon Singh reported in 1980 (SC) 701. 16. This question of suppression has also been considered by the Apex Court in the case of Harjit Singh Mann V/s. Umraon Singh reported in 1980 (SC) 701. The facts and circumstances of that case is almost akin to the present case. There also the candidate came after the expiry of time to file nomination paper and the time was mentioned which is beyond the expiry period and the affidavit also was not being sworn. It was held that the rejection of the nomination paper under Rule 36(b) was proper and it was held that suppression of the receipt granted by the Returning Officer/Assistant Returning Officer after the nomination paper was accepted, under the law could give rise to the presumption as contemplated under Section 114 (g) of the Evidence Act. 17. The next point comes about the star document of the election petitioner i.e. Ext.1. The first and foremost case of the election petitioner as has been argued by Mr. Sharma, learned senior counsel for the election petitioner that if the nomination paper has been submitted belatedly then issuance of such notice as contemplated under Rule 7 of the Conduct of Election Rules in the format-3A would not have been there and when such format has been admittedly hung in the notice board then the presumption goes that the nomination paper must have been submitted before time. That presumption would have been there if no contrary evidence would have been there. But there is not only contrary evidence as given by the official witnesses D.Ws. 1 and 2 but there is documentary evidence also on the face of it as the nomination paper itself i.e. Ext.2 series and Ext.A (ordersheet of the Returning Officer) wherein time has been mentioned as 3-10 P.M. Thus, there is no scope of any presumption. It is true that it was not obligatory on the part of the Returning Officer or the Assistant Returning Officer to hang the notice as contemplated under Rule 7 of the Conduct of Election Rules in format-3A as the nomination paper had not been submitted in time. But, perhaps, they thought it proper to hung such format also in respect of tne election petitioner as has been done regarding other candidates when pressure being given the nomination paper of the petitioner had been accepted beyond the expiry of time. But, perhaps, they thought it proper to hung such format also in respect of tne election petitioner as has been done regarding other candidates when pressure being given the nomination paper of the petitioner had been accepted beyond the expiry of time. It is the specific case of the official witnesses D.Ws.1 and 2 that as printed time was 3 P.M. in Form-3A".....-10" had been added to the time for itself by Pencil and the official carbon copy reveals so which has also been exhibited in the case. According to the election petitioner, such time was being manipulated by the Returning Officer and his office. It has been submitted by the election petitioner that he has got no animosity with the Returning Officer or Assistant Returning Officer. When the officials had done something as per procedure and as per Statute they are presumed to have done so, according to the Statutes, unless contrary being proved. Form no. 3A is an official document which ought to have been hung on the notice board of the office of the S.D.O./A.R.O. and there was no occasion to come into the custody of the election petitioner. But it has gone to the custody of the election petitioner because he has produced it which reveals that he must have snatched it away and when the same is coming from his custody and when the revised time was mentioned by pencil, there is every possibility of presumption that such revised time has been erased by the election petitioner or his men for the purpose of creating a ground for challenging the election. The presumption as has been claimed from the side of the election petitioner regarding manipulation by the Returning Officer/Assistant Returning Officer & his office are feeble one, but strong presumption is against the election petitioner regarding manipulation/erasing of time from the side of the election petitioner himself in respect of Ext.1. In view of the above position I can not put reliance on the document Ext.1 much when the same is not coming from the proper custody rather from the custody of the interested person who had the scope to manipulate the same. 18. In view of the above position I can not put reliance on the document Ext.1 much when the same is not coming from the proper custody rather from the custody of the interested person who had the scope to manipulate the same. 18. In that way, considering all the aspects of the matter and very much relying on the judgment of the Apex Court as reported in 1980 (S.C.) 701 (Harjit Singh Mann V/s. Umraon Singh) I hold that the grounds prepared challenging the rejection of the nomination paper are only an after thought and are not borne out from the records. 19. Mr. Sharma, learned senior counsel appearing for and on behalf of the election petitioner has referred to 1960 (S.C.) 195 regarding the consideration of precedence of decisions. Practically, his such submission is eyeing towards the decision as in the case of Harjit Singh Mann (supra). But I have already held that the principle of precedence as enunciated by the Apex Court totally fits in the present case with that of the case of Harjit Singh Mann, as already stated, that the facts and circumstances are most akin to each other. His further submission regarding the case reported in 1999 (SC) 3655 (paragraph-12) rather supports the case of the respondent and not of the election petitioner. Similarly, the decision reported in 1968 (SC) 1064 (Pasupati Nath Singh V/s. Harihar Nath Singh) also regarding the time taking oath has got no relevance in the present case except that of a plea that the Returning Officer ought to have given time to the election petitioner to satisfy his case that the nomination paper was filed in time. Nowhere it is the case of the election petitioner in the election petition that he claimed before the Returning Officer at the time of scrutiny that it was filed in time and he wants time to satisfy that point. Ultimately, Mr. Sharma, learned senior counsel has submitted on the point of natural justice to the effect that when the nomination paper had been accepted by the Returning Officer even if it was some minutes after expiry of time, then also it ought not to have been rejected the same at the time of scrutiny. The working of Section 36(b) (2) is very clear that it being a mandatory provision there being no scope for consideration of natural justice in observing technicality. 20. The working of Section 36(b) (2) is very clear that it being a mandatory provision there being no scope for consideration of natural justice in observing technicality. 20. After considering the whole of the case of the parties and also both oral and documentary evidence, I come to the conclusion that the election petitioner has miserably failed to make out a case in his favour for setting aside the election. Hence, the issue is decided against the election petitioner. 21. Issue No. 4 In view of the decisions in the foregoing issues, this issue is also decided in the negative and against the election petitioner. In the result, it is Ordered that this election petition is dismissed with cost of Rs. 1,000/- only.