JUDGMENT : G.S. Solanki, J. 1. The petitioner has filed this petition under Section 80 read with S.81 of the Representation of the People Act, 1951 (for brevity 'the Act'), against the election of the returned candidate viz. respondent No. 1 to 81, Deosar Constituency of M.P. Legislative Assembly for which elections held on 25.11.2013 and result was declared on 10.12.2013 inter alia on the grounds that the petitioner is a voter of 81, Deosar Constituency for M.P. Legislative Assembly, his name is entered in voter list in Part 21 at Sr. No. 320. The petitioner submitted his nomination for aforesaid constituency reserved for scheduled caste; firstly he filed his nomination for as candidate sponsored by Indian National Congress on 5.11.2013 and again filed two sets of nomination form on 8.11.2013 as an independent candidate. The petitioner has filed an authority letter in regard to allotment of symbol which has been made by the party in duly filled form No. A and B as required under Election Symbol (Reservation and Allotment) Order, 1968. The aforesaid letter was filed on 8.11.2013 before the stipulated limitation period. Aforesaid letter was given on behalf of Indian National Congress (for short the INC). It is pleaded that on that date there was large crowd gathered inside the chamber of the returning officer and the petitioner was there right from 2.40 PM. It is further pleaded that earlier in the day he has also submitted his candidature form as an independent candidate. It is further pleaded that returning officer closed the door from inside at 3 PM and announced that nomination form and other relevant documents will be received from the candidates and other persons concerned who are inside the chambers before 3 PM and consequently returning officer received nomination form, authority letter and other relevant documents from the candidates till 4.30 PM. The petitioner had also submitted authority letter even before 3 PM. 2. The scrutiny of nomination paper was conducted on 9.11.2013. The respondent filed an objection to the returning officer with the prayer for rejection of the petitioners nomination form as a candidate sponsored by the INC as the symbol allotted by the party has been submitted by him after 3 PM. The petitioner has replied the aforesaid objection with the request that he has filed the aforesaid symbol allotment authority letter within the stipulated period. The petitioner has replied the aforesaid objection with the request that he has filed the aforesaid symbol allotment authority letter within the stipulated period. It is further pleaded that the returning officer posted the hearing on objection for 11.11.2013 and after hearing the parties returning officer has rejected the nomination form of the petitioner as sponsored candidate by the INC on the ground that he submitted the symbol allotment authority letter at 4.05 PM which was after the expiry of limitation period of 3 PM of last day of filing the nomination form. Since returning officer has made false observation in regard to the arguments made by the petitioner, thus, it is obvious that the returning officer has malafidely rejected the petitioner's nomination form as candidate sponsored by the INC under the influence and pressure of the ruling party. 3. It is further pleaded that the petitioner's nomination form as an independent candidate has been accepted and he was forced to contest as an independent candidate and he stood second to the returned candidate i.e. respondent No. 1. 4. It is further pleaded that the petitioner and one Subhash Saket raised the objection against acceptance of nomination form of respondent No. 1 on the ground that respondent No. 1 was in Government service and the order accepting his resignation has not been signed by the competent authority and secondly it was objected that caste certificate submitted by respondent No. 1 was not valid and genuine and he does not belong to scheduled caste, therefore, his nomination form deserves to be rejected. The returning officer after hearing both the parties rejected the objection on 11.11.2013 and accepted nomination form of respondent No. 1. The petitioner again pleaded and summed up that the returning officer has wrongly rejected the petitioner's nomination form as a candidate sponsored by the INC and also wrongly accepted the nomination form of respondent No. 1 despite respondent No. 1 failed to furnish order of competent authority accepting his resignation, further failed to furnish certified copy of voter list to entitle him to contest the election from Deosar Constituency as he is a registered voter of 80, Singrauli Constituency. Without filing certified copy of relevant part of voter list, he was not eligible to contest election from 81, Deosar Constituency. Consequently, acceptance of nomination form of respondent No. 1 has materially affected the election results. Without filing certified copy of relevant part of voter list, he was not eligible to contest election from 81, Deosar Constituency. Consequently, acceptance of nomination form of respondent No. 1 has materially affected the election results. On the basis of aforesaid pleadings and grounds the petitioner has prayed that election of respondent No. 1 be declared as null and void. 5. Respondent No. 1 has denied the pleadings made by the petitioner in the election petition and submitted that he raised an objection in respect of submission of sponsored symbol presented by the petitioner at 3:00 PM on the date of nomination and further pleaded that initially petitioner has filed a nomination form as an independent candidate and subsequently submitted the letter of authority of the INC sponsored him. It is further submitted that the petitioner has submitted his nomination as an independent candidate and he has not filed the letter of authority of INC before 3 O'clock. He submitted aforesaid authority at 4.05 PM which is not permissible as per rules, therefore, the nomination of the petitioner as sponsored candidate of the INC has been rightly rejected by the returning officer. It is further submitted that the returning officer acted in accordance with law, therefore, does not come within the purview of influence and pressure. It is further pleaded that the petitioner has not specifically pleaded that as to how and by whom and where and in which manner the returning officer was influenced or was pressurized by the ruling party. It is specifically denied that the petitioner was forced to contest the election as an independent candidate. It is partly accepted that an objection was made by Subhash Saket in respect of resignation of respondent No. 1 from service and genuineness of the caste certificate, which objection was dealt with by the returning officer and was rejected. It has been specifically denied that respondent No. 1 has failed to submit order of competent authority accepting his resignation and certified copy of the voter list of 80, Singrauli Constituency. It is further pleaded that the petitioner has not filed any documents in support of aforesaid contentions, therefore, same has been specifically denied. On the basis of aforesaid reply, respondent No. 1 has prayed for dismissal of the instant election petition. 6. On the basis of the pleadings made by the parties, the following issues were framed. It is further pleaded that the petitioner has not filed any documents in support of aforesaid contentions, therefore, same has been specifically denied. On the basis of aforesaid reply, respondent No. 1 has prayed for dismissal of the instant election petition. 6. On the basis of the pleadings made by the parties, the following issues were framed. The corresponding answer is noted against each one of them :- REASONS FOR THE FINDINGS 7. Issue No. 1 : Petitioner Vanshmani Prasad Verma (PW-2) has stated that he filed his nomination paper (Ex.P-6) as an authorized candidate of INC on 5.11.2013 and he filed another nomination paper (Ex.P-1) on 7.11.2013 and on 8.11.2013 at about 2:40 PM, he filed Form A and B. He has further stated that on that date, there was a crowd in the retiring room of the returning officer. At about 3:00 PM, the door of the room was bolted from inside and the returning officer took the documents from the candidates till 4:30 PM. He has further stated that on 9.11.2013 respondent No. 1 has filed an objection in regard to the fact that the petitioner has not filed Form A and B till 3:00 PM on 8.11.2013, therefore, his nomination paper be rejected. 8. The said objection was decided by the returning officer vide order (Ex.P-11) on 11.11.2013. He admitted in his cross-examination that he made an objection to the candidature of Harilal Prajapati on 9.11.2013 wherein he has not mentioned that he is the authorized candidate of the INC in place of Harilal. He further admitted that the returning officer has mentioned the time as 4:05 PM on the top of Form A and B but he further explained that same was wrongly mentioned by the returning officer. He further admitted that he did not write in his objection that the returning officer has malafidely entered the time as 4:05 PM. 9. Respondent No. 1 has stated that he had filed an objection in regard to the fact that the petitioner had filed Form A and B belatedly and aforesaid objection was decided by the returning officer vide Ex.P- 11. 10. It reveals on perusal of Ex.P-10 that respondent No. 1 made objection in regard to the fact that petitioner has failed to file Form A and B within the stipulated time. 10. It reveals on perusal of Ex.P-10 that respondent No. 1 made objection in regard to the fact that petitioner has failed to file Form A and B within the stipulated time. It is further revealed from perusal of Ex.P-9 that the petitioner had expressed that he filed Form A and B before 3:00PM and it is further mentioned that he has not filed Form A and B after 4:00 O'clock. It appears that the petitioner came to know that his nomination paper has been rejected on the ground that he has not filed Form A and B within the stipulated time i.e. before 3:00PM, this fact further finds support from Form A and B (Ex.P-7 and P-8) wherein the returning officer has mentioned the time as 4:05 PM on top of Form A. It is further revealed from the impugned order (Ex.P-11) dated 11.11.2013 that the petitioner filed another nomination as an independent candidate on 8.11.2013 at about 2:48 PM and check list was provided to him after he filed Form A and B along with the aforesaid nomination. Certainly, this point would have been mentioned in the check list. Though it is pleaded that the returning officer has acted malafidely but no such evidence has been adduced in regard to the fact that how he has acted malafidely. It is also on record that the petitioner had made objection against the nomination of Harilal Prajapti but if he was an authorized candidate of INC, certainly he would have mentioned this fact in his objection. It appears that when it was found that the nomination of Harilal Prajapati was going to be rejected on the ground that on the date of nomination, he was holding the office of profit because he was working as permanent government servant, then the INC allowed the petitioner to contest as sponsored candidate of the party and thereafter he belatedly filed Form A and B before the returning officer. Since the petitioner has not produced the returning officer to establish his case that he filed Form A and B before 3 O'clock on 8.11.2013, in these circumstances, it is presumed that the returning officer performed his official duty properly and regularly and made endorsement on Form A and B (Ex.P-7 and P-8), thus the petitioner has failed to prove that he has filed the nomination form within the stipulated period i.e. on or before 3 O'clock on 8.11.2013. In view of the aforesaid discussion, issue No. 1 is answered as Negative. 11. Issue No. 2 : Petitioner Vanshmani Prasad Verma (PW-2) has stated that he made objection (PW-2) against the nomination of respondent No. 1 that he has not filed valid acceptance of his resignation by the authority concerned. Respondent No. 1 has stated that he resigned from the post of Chief Pharmacist, Northern Coal Fields Limited, Nehru Shatabdi Hospital, Jayant, District Singrauli. He specifically denied that his resignation was not accepted from the aforesaid post of Chief Pharmacist. He stated that he filed relevant letter (Ex.P-12) before the returning officer. 12. It reveals from a bare perusal of order (Ex.P-12) that the this official order was issued by Staff Officer (Karmik) NSC, Jayant, District Singrauli on the letter-head of Northern Coal Fields Limited, Nehru Shatabdi Hospital, Jayant as to the effect that resignation of respondent No. 1 has been accepted by the competent Officer and he has been relieved from the service of Chief Pharmacist w.e.f. 6.11.2013 and his name has been deleted from the Roll of the Company. It is further mentioned that this order has been issued after getting approval of the competent officer, which shows that the resignation of respondent No. 1 was duly accepted by the competent authority of Nehru Shatabdi Hospital, Northern Coalfields Limited, therefore, the order (Ex.P-5) passed by the returning officer on 11.11.2013 as to the effect that the resignation of respondent No. 1 has been accepted by the competent authority, does not suffer with any infirmity or illegality. In these circumstances, issue No. 2 is answered as negative. 13. Issue No. 5 :- Though the petitioner has pleaded that respondent No. 1 has failed to submit valid caste certificate before the returning officer that he belongs to the scheduled caste category but in his statement nothing has been stated by the petitioner in regard to the aforesaid pleading. In these circumstances, issue No. 2 is answered as negative. 13. Issue No. 5 :- Though the petitioner has pleaded that respondent No. 1 has failed to submit valid caste certificate before the returning officer that he belongs to the scheduled caste category but in his statement nothing has been stated by the petitioner in regard to the aforesaid pleading. Further, it reveals that such objection has been made by one Subhash Saket but the petitioner has not adduced Subhash Saket in his evidence. Thus, the petitioner has failed to prove that respondent No. 1 has not filed the valid caste certificate before the returning officer. Consequently, issue No. 5 is answered as not proved. 14. Issue Nos. 3 and 4 : The petitioner has pleaded that respondent No. 1 has failed to file certified copy of the voter list to entitle him to contest the election from 81 Deosar Constituency to show that he is a registered voter of 80, Singrauli Constituency and without filing the certified copy of relevant part of the voter list, he was not eligible to contest the election from 81, Deosar Constituency. In reply, respondent No. 1 has pleaded that the petitioner has not filed any document in this regard, therefore, the aforesaid pleading is denied. Petitioner Vanshmani Prasad Verma (PW-2) has stated that at the time of making objection he stated that name of respondent No. 1 Rajendra Kumar Meshram is not registered in 81, Deosar Legislative Assembly Constituency. His name is entered in the voter list on 80, Singrauli Constituency but he has not filed the copy of the electoral roll. Respondent No. 1 Rajendra Kumar Meshram has stated that his name has found place in the voter list of Singrauli Constituency at Sr. No. 433. He has further stated that this fact has been mentioned by him in his nomination paper (Ex.P-2). He denied the suggestion of the petitioner that he has not filed the certified copy of the electoral roll before the returning officer. 15. It reveals on critical analysis of statement of respondent No. 1 that he only stated that his name has found place in Sr.No. 433 of voter list of 80, Singrauli Constituency and he mentioned this fact in his nomination paper. 15. It reveals on critical analysis of statement of respondent No. 1 that he only stated that his name has found place in Sr.No. 433 of voter list of 80, Singrauli Constituency and he mentioned this fact in his nomination paper. It is true that this fact has found place in the nomination paper, however, he has not stated that he had filed the certified copy of the aforesaid electoral roll before the returning officer. Mere mentioning of aforesaid fact in nomination form would not amount to compliance of mandatory provision of Section 33(5) of the Act of 1951. Thus, it is proved on record that respondent No. 1 had not filed the certified copy of the electoral roll of 80, Singrauli Constituency. As per Section 33(5) of the Act of 1951, respondent No. 1 was duty bound to file copy of the electoral roll of 80, Singrauli Constituency or relevant part thereof or certified copy of relevant entries of such roll at the time of filing nomination paper. It is further provided in Rule 36(7) of the Act of 1951 that for the purpose of this section, certified copy of entries in the electoral roll for the time being in force of the Constituency shall be conclusive evidence of the Act that person referred to in that entry is an elector for the Constituency. It means respondent No. 1 was having two opportunities; first at the time of filing nomination paper and secondly at the time of screening, he could have filed the certified copy of electoral roll of 80, Singrauli Constituency. 16. Learned counsel for the petitioner has submitted that the returning officer has committed illegality in not rejecting the nomination paper of respondent No. 1 on the ground that he has not complied with the provision of Section 33(5) of the Act of 1951. He has placed reliance on Shri Baru Ram Vs. Smt. Prasanni and others, AIR 1959 SC 93 and Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 . The Apex Court in both the aforesaid cases has specifically held that "where the statute requires specific fact to be proved in specific way and it also provides for the consequences of non- compliance with the said requirement, it would be difficult to resist the application of penalty clause on the ground that such an application is based on technical approach". 17. 17. In the light of the aforesaid principle when I assessed the facts and evidence of the instant case, I found that the petitioner came with a specific pleading that respondent No. 1 has failed to file certified copy of the voter list of 80, Singrauli Constituency where his name was alleged to have been registered. In reply, respondent No. 1 has not come up with the case that he has filed the aforesaid certified copy of the voter list of 80, Singrauli Constituency. On the contrary, he pleaded that since the petitioner has not filed any document in this regard, therefore, the aforesaid pleading is denied. Primarily, this denial is not a specific denial and secondly, at the time of evidence also, respondent No. 1 has not stated in affirmative manner that he filed the certified copy of the aforesaid voter list before the returning officer. He only stated that his name has found place in 80, Singrauli Constituency at Serial No. 433. It means he has not complied with the provision of Section 33(5) of the Act of 1951. The Apex Court in Birad Mal Singhvi Vs. Anand Purohit (supra) has observed thus :- ...............Non-compliance with Section 33(5) is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate. Section 33(5) prescribes a particular mode to prove eligibility of a candidate to contest election and S.36(2)(b) provides penal consequences. Therefore S. 33(5) is mandatory in nature. An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by S.33(5) of the Act and if he fails to do that, he must suffer the consequences contemplated by S. 36(2)(b) of the Act. The returning officer is under no legal obligation to make amends for the omission of a candidate, especially when the omission relates to a mandatory requirement.......... 18. In the instant case, the onus was on respondent No. 1 to prove that he has filed the certified copy of electoral roll of 80, Singrauli Constituency before the returning officer but he has failed to prove the aforesaid fact. 18. In the instant case, the onus was on respondent No. 1 to prove that he has filed the certified copy of electoral roll of 80, Singrauli Constituency before the returning officer but he has failed to prove the aforesaid fact. In these circumstances, in my opinion, respondent No. 1 was not qualified to contest the election from 81, Deosar Constituency on the date of filing the nomination for the election of aforesaid Constituency and the returning officer has committed illegality in accepting the nomination paper of respondent No. 1 and also in not rejecting his nomination paper due to non-compliance of Sections 33(5) and 36(2)(b) of the Act of 1951. Thus, issue Nos. 3 and 4 are answered in affirmative, as a consequence thereof, the election of respondent No. 1 is liable to be set aside. 19. Issue Nos. 6 and 7 :- Since respondent No. 1 has not filed the certified copy of the voter list of 80, Singrauli Constituency in which his name was registered as an elector and thereby he has not complied with the mandatory provisions of Section 33(5) and 36(2)(b) of the Act of 1951, therefore, he was not eligible to be chosen to fill the seat of 81 Singrauli Constituency. In other words, he was disqualified to be chosen to fill the seat under the Act of 1951. Thus, this case is covered under Section 100(1)(a) along with Section 100(1)(d)(i) of the Act of 1951. Since respondent No. 1 was not eligible to contest the election from 81, Deosar Constituency of M.P. Legislative Constituency, therefore, now it is not necessary to consider whether the election of respondent No. 1 has been materially affected due to improper acceptance of nomination paper of respondent No. 1. The petitioner has succeeded in proving that respondent No. 1 has failed to comply with the mandatory provision of Sections 33(5) and 36(2)(b) of the Act of 1951 20. Resultantly, the election petition is allowed. The election of respondent No. 1 from 81, Deosar Constituency is hereby declared as null and void. Respondent No. 1 to bear his own cost and cost of the petitioner. Advocates' fee as per schedule, if certified. The office is directed to send a certified copy of this judgment to the Election Commission of Madhya Pradesh and the Speaker of State Legislative Assembly within a week.