Judgment

BRIJESH KUMAR, J.

( 1 ) THE defeated candidate in the bye-election held in February. 2000 to the legislative assembly, Madhya pradesh from Bhojpur assembly constituency. filed an election petition in the High Court of madhya Pradesh challenging the declaration of the respondent as elected from the aforesaid assembly constituency. The election petition has been dismissed, hence this appeal.

( 2 ) BRIEFLY, the facts are that nomination paper of one Bhagwan Singh was rejected at the time of scrutiny on the ground that he had not filled up the proforma prescribed by the election Commission vide letter dated 28. 8. 97. The said proforma was required to be filled up to ascertain as to whether the candidate had been convicted or not for any offence mentioned in Section 8 of the Representation of people Act, 1951 (for short the act ). Interestingly, the candidate, namely, Bhagwan Singh had filed an affidavit that information given in the proforma was correct but the proforma itself was left blank. He had though filled the nomination paper on Form 2-B as prescribed under Rule 4 of the Conduct of Sections Rules, 1961 declaring that the candidate was qualified and also not disqualified for being chosen to fill the seat. According to the Election petitioner the nomination paper of Bhagwan Singh could not be rejected on the ground that he had not filled up the proforma prescribed under the letter dated 28. 8. 97, since no such proforma was statutorily provided under the provisions of the Act nor under the rules framed thereunder. It is contended that the commission could not legislate to prescribe a proforma; at best it can only be an executive instruction of the Election Commission whereas the petitioner had filled the form prescribed under the rules which did not suffer from any defect.

( 3 ) YET another ground taken up by the petitioner was that failure to comply with executive direction of the Election Commission would not entail the consequence of rejection of the nomination paper much less where it is not provided that failure to fill up the proforma would result in rejection of the nomination paper.

( 4 ) THE High Court considering the points raised by the petitioner came to the conclusion that non-submission of the declaration as required under the instruction dated 28. 8. 97 is a defect of substantial character. Hence the nomination paper was rightly rejected by the returning Officer. At this juncture it may also be mentioned that a question seems to have been raised, as to whether election petition could be entertained, in view of the fact that bhagwan Singh, whose nomination paper was rejected neither approached the court nor he ever raised any objection to the rejection of his nomination paper, but this point does not seem to have been pursued before the High Court nor this court was addressed on the said point. We therefore, need not digress on that question and proceed to consider the matter on merit of the appeal on the grounds canvassed before us.

( 5 ) BEFORE entering into the merits of the other points it would be appropriate to deal with one question raised by the appellant to the effect that the instructions dated 28. 8. 97 contained in letter P-l and the letter dated 6. 1. 98 have not been issued by the Election commission. On the other hand it is submitted that these letters have been issued by the officers of the Commission, hence Article 324 of the Constitution will not be attracted. This point though argued at length, holds no water and it is destined to be rejected. Referring to letter dated 28. 8. 97, it is submitted that it has been issued only by the Director (Law) of the election Commission. It is further pointed out that the said letter has been issued only to operationalise the directive of the Commission. The Commission had desired that at the time a nomination paper is filed, the candidate should also fill up the proforma annexed therewith seeking information with a view to ascertain, at the time o