2005 Supreme(SC) 877

2005(5) Supreme 1
Supreme Court of India
(From Uttaranchal High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.K. Balasubramanyan, JJ.
Anil Baluni —Appellant
versus
Surendra Singh Negi —Respondent
Civil Appeal No. 6521 of 2004
Decided on 14-7-2005
Counsel for the Parties :
For the Appellant : Subodh Markandeya, Sr. Advocate, R.P. Goel, Ms. Vibha Arora, Rahul Batra, Ms. Rekha Dahkkar, Rama Mohan P.B., Mrs. Chitra Markandeya, Advocates.
For the Respondent : V.A. Mohta, Sr. Advocate, A.S. Rawat, Nilakanta Nayak and Anil Nag, Advocates.

Important point
Where the election petitioner has succeeded in establishing that he had filed his nomination papers along with Forms ‘A’ and ‘B’ and his nomination papers were impro­perly rejected, election of the returned candidate has to be declared as void.

Headnote:Representation of the People Act, 1951—Sections 33, 80, 81, 100(1)(c) —Election Symbols (Reservation and Allotment) Order, 1968)—Election ­petition challenging election of respon­dent—Allegations that appel­lant’s nomination was improperly rejected—Appellant was official candi­date of Bhartiya Janata Party—He was handed over duly filled in Forms ‘A’ and ‘B’ as prescribed by the Election Symbols Order—Appellant in person filed four sets of nomination papers on 22-1-2002 as a candidate of BJP along with Forms ‘A’ and ‘B’ before the Returning Officer—Nomination papers were duly filled up and fully complied with requirements of law—Appellant deposed that after scrutiny the Return­ing Officer had orally announced that the same were valid—However, Return­ing Officer deposed that Forms ‘A’ and ‘B’ were filed by appellant at 4.10 p.m. on 23.1.2002, i.e., after the time fixed for filing of the nomination papers—Outer limit for acceptance of nomina­tion papers and Forms ‘A’ and ‘B’ was 3.00 p.m. on 23.1.2002—Returning Officer could not have received any such Forms if the same were presented after 3.00 p.m.—Serious doubts created on bona fides of the ­Returning Officer—Evidence was being created in order to justify the interpolations made in nomination papers whereby they were rejected—Whether nomination paper of petitioner was improperly rejected as alleged by petitioner—(Yes).

       Held : There is no dispute that the appellant filed his nomination papers on 22.1.2002. In their depositions the appellant Anil Baluni and also his election agent Mohan Singh Rawat have categorically stated that Forms ‘A’ and ‘B’ were filed along with the nomination papers on 22.1.2002. The appellant has further deposed that he had been declared as the official candidate by the party high command on 17.1.2002 and he had been given Forms ‘A’ and ‘B’ by the State President Shri Puran Chan­dra Sharma on 19.1.2002. This part of the statement of the appellant has not been shaken in any manner in his cross-examination. Shri Mohta has submitted that one Shri Bhuvnesh Kharkwal had also submitted his nomination paper as a candidate of BJP and this shows that there was a dispute as to who would be the official candidate of the said party and, therefore, Forms ‘A’ and ‘B’ had not been given to the appellant till 22.1.2002. It is not possible to accept the contention as the specific statement of both PW-1 Anil Baluni and PW-2 Mohan Singh Rawat is that the appellant had been declared to be the official candidate of BJP on 17.1.2002 and Forms ‘A’ and ‘B’ had been given to the appellant on 19.1.2002. In fact Form ‘B’, which was issued in favour of the appel­lant also bears the date 19.1.2002. The respondent has lead absolutely no evidence to show that there was any doubt or dispute in the Party high command regarding the candidature of the appellant on account of which the Forms ‘A’ and ‘B’ could not have been given to the appellant on 19.1.2002 or till the time when he filed his nomination papers on 22.1.2002. In such circumstances it does not appeal to reason that though he had been declared as the official candidate of the BJP and had been given Forms ‘A’ and ‘B’ on 19.1.2002 yet he would not file the same along with his nomination papers on 22.1.2002 and would choose to file the same subsequently on 23.1.2002, which was the last date. (Para 9)

       Having given our careful consideration to the evidence on record and the submission made by the learned counsel for the parties we have no hesitation in holding that the appellant has succeeded in estab­lishing that he had filed his nomination papers along with Forms ‘A’ and ‘B’ on 22.1.2002 and his nomination papers were improperly reject­ed. In view of this finding the election of the respondent Surendra Singh Negi has to be declared as void. (Para 17)