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2011 (8) Supreme 649
SUPREME COURT OF INDIA
R.M. Lodha and Jagdish Singh Khehar, JJ.
Ramesh Rout — Appellant
versus
Rabindra Nath Rout — Respondent
Civil Appeal No. 4956 of 2010
with
Civil Appeal No. 4962 of 2010
Decided on : 9-12-2011
Representation of the People Act, 1951-Section 83 –Material facts- Section 83 of the 1951 Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies- Section 83 is peremptory- An election petition must be dismissed if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with-In the facts and circumstances of case no merit found in contention of appellant that material facts relating to the ground on which election of the returned candidate had been set aside had neither been pleaded in election petition nor had been proved by leading cogent evidence. (Paras 52, 53)
Facts of the Case :
A. Proposed candidate’ herein in the instant case filed four sets of nomination papers for 89-Athagarh Assembly constituency as a candidate of Biju Janata Dal - a registered and recognized political party in the State of Orissa before Returning Officer. Returning Officer rejected the nomination papers of the proposed candidate on the ground that Form A and Form B filed by the proposed candidate along with his first set of nomination paper were not duly signed in ink by authorized officer of the political party (BJD). Appellant who contested election as an independent candidate was declared elected. Election petitions were filed thereagainst on the ground of improper rejection of nomination papers of the proposed candidate. High Court allowed both election petitions and declared election of appellant null and void.
B. Present appeals have been filed against said order of High Court.
Findings of the Court :
A.The use of the word ‘only’ in clause (e), para 13, 1968 Order emphasises that Forms A and B are to be signed in ink by the office bearer or person authorised by the recognised party and in no other way. Thus, it excludes any other mode of filing Forms A and B when a candidate is set up by a recognised political party.
B.The proposed candidate admittedly filed his nomination paper proposed by a single elector having been set up by BJD, a recognised political party in the State of Orissa, and, therefore, it was incumbent upon him that the requirements of para 13 of the 1968 Order were fully complied with. Had the proposed candidate not filed Forms A and B as required, i.e., duly signed in ink by an authorised person of BJD, he would not have been shown as a nominee of that party in Form 3A.Returning Officer not stated firmly and with certainty in his evidence that the proposed candidate had not filed Form-A and Form-B signed in ink by the authorised person of the BJD.Rather he stated that had it come to his notice that the original Form-A and Form-B duly signed in ink were not filed along with nomination paper by proposed candidate, he would have made an endorsement to that effect in the check list.
C. The evidence on record, i.e, the evidence of the Returning Officer, the documentary evidence, namely, the check list, Form 3A displayed on the notice board, the consolidated list of nominated candidates and the evidence of PW-2 clearly established that original Form-A and Form-B signed in ink by authorised officer of the party (BJD) were presented by the proposed candidate along with 1st set of nomination paper. The finding returned by High Court in this regard could not be said to be wrong or unjustified. No ground was found to interfere with impugned judgment. Appeals were dismissed.
JUDGMENT
R.M. Lodha, J.
The returned candidate — Ramesh Rout - whose election to the 14th Orissa Legislative Assembly from 89-Athagarh Assembly Constituency has been set aside by the High Court of Orissa has preferred these two appeals under Section 116A read with Section 116C of the Representation of the People Act, 1951 (for short, ‘the 1951 Act’).
2. The Election Commission of India (for short, ‘Commission’) in order to constitute 14th Legislative Assembly announced general elections in the State of Orissa to be held in two phases on April 16, 2009 and April 23, 2009. Following this, the Governor of the State of Orissa in exercise of powers conferred under Section 5(2) of the 1951 Act issued a notification which was published in the official gazette on March 28, 2009. The 89 - Athagarh Assembly constituency is one of the 147 Assembly constituencies in the State of Orissa and is ‘General’ constituency. The Commission appointed the following schedule of election:
“28.3.2009
To
04.04.2009 = Period prescribed for filing of
“NOMINATIONS”
06.04.2009 = date fixed for SCRUTINY OF
NOMINATIONS.
08.04.2009 = last date for WITHDRAWAL OF
NOMINATIONS
23.04.2009 = date of POLLING.
16.05.2009 = date of COUNTING OF VOTES.
28.05.2009 = date before which the Election shall be completed.”
3. On April 4, 2009, at 11.25 A.M., the respondent in Civil Appeal No. 4962 of 2010 - Ranendra Pratap Swain (hereinafter referred to as ‘proposed candidate’) filed four sets of nomination papers for 89-Athagarh Assembly constituency as a candidate of Biju Janata Dal (‘BJD’) - a registered and recognized political party in the State of Orissa before the Returning Officer. Seven other candidates including the present appellant also filed their nomination papers at the said election. The check list (ticked original) was issued by the Returning Officer with his signature to the proposed candidate at 11.45 a.m. A copy of the check list (ticked duplicate) was retained by the Returning Officer.
4. On the appointed date (i.e. April 6, 2009) and time for scrutiny of nominations, the Returning Officer rejected the nomination papers of the proposed candidate on the ground that the Form A and Form B filed by the proposed candidate along with his first set of nomination paper were not duly signed in ink by the authorized officer of the political party (BJD).
5. Upset with the order of Returning Officer dated April 6, 2009, rejecting his nomination, the proposed candidate filed a writ petition before the Orissa High Court. However, the High Court did not entertain the writ petition and directed him to pursue his grievance before the Commission or seek appropriate relief after election process was over. The proposed candidate raised his grievance before the Commission but without any success.
6. The election to the 89-Athagarh Assembly constituency was held as per election schedule and the appellant who contested the election as an independent candidate was declared elected.
7. Two election petitions came to be filed before the Orissa High Court challenging the election of the appellant to 89-Athagarh Assembly Constituency. One by the proposed candidate being Election Petition no. 4 of 2009 and the other by the proposer - respondent in Civil Appeal No. 4956 of 2010 being Election Petition no. 6 of 2009. In both election petitions, the election of the appellant was challenged on the ground of improper rejection of nomination papers of the proposed candidate. It was averred therein that the proposed candidate had filed Form A and Form B signed in ink by the authorized person along with first set of nomination paper showing that he had been duly sponsored by the BJD to contest as a party nominee from 89-Athagarh Assembly constituency and with other three sets of nomination, he had filed xerox copies of original Forms A and B duly authenticated by a Notary Public. The election petitioners raised diverse grounds in challenging the order of the Returning Officer dated April 6, 2009
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