IMPORTANT POINT
Provisions of section 35(5) have to be rigidly followed.

JUDGMENT

Dipak Misra, J.

In this appeal, the question that is required to be determined is whether the High Court by the order impugned was justified in invalidating the election of the appellant who was elected as a member of Bihar Legislative Assembly in the election held on 10.7.2003.

2. Bereft of unnecessary details, the facts which are essential to be stated are that the respondent filed his nomination paper along with fifty others to enter into the contest as the member of Bihar Legislative Council from 20-Saharsha-cum-Medhepura-cum-Supaul Local Authority Election Constituency. The Returning Officer, while accepting the nomination papers of all the candidates, rejected the nomination paper of the respondent on the ground that he had not filed the relevant electoral roll which was required to be done, for he belonged to another constituency.

3. After the election was over, the respondent instituted Election Petition No. 4 of 2003 in the High Court of Patna seeking a declaration that rejection of his nomination paper was incorrect and inappropriate, and hence, the election of the elected candidate was void. Challenge to the rejection was based on two counts, namely, that he had filed the requisite voters’ list as contemplated under Section 33(5) of the Representation of the People Act, 1951 (for brevity, ‘the Act’) and second, the Returning Officer, at the time of scrutiny, had not pointed out the defect to him for which he was deprived of the opportunity of rectifying the mistake.

4. In the election petition it was asseverated that the Returning Officer accepted the electoral roll for other candidates for the year 1998, but as far as the respondent was concerned, there was insistence for production of the valid electoral roll as on 1.1.2002 which was not essential. The stand and stance put forth by the election petitioner was seriously controverted by the present appellant on many a ground including the one that in the absence of any pleadings in the petition to substantiate the fact his contesting in the election would have materially affected the results of the election, the election petition was totally devoid of any substance.

5. The High Court framed the following four issues for adjudication:

“(1)Whether this election petition, as framed is maintainable?

(2)Whether this election petition is vitiated by non-joinder of necessary parties?

(3)Whether the nomination paper of the petitioner was improperly rejected by the Returning Officer?

(4)Whether the petitioner is entitled to any relief or reliefs?”

6. Both the parties adduced oral evidence and marked certain documents as exhibits. The High Court treated issue No. 3 as the principal issue and the issue No. 4 as consequential to it. The respondent brought on record the order of rejection passed by the Returning Officer as Ext. P-2. There was no dispute before the High Court that the first respondent did not belong to the constituency and, therefore, he was required to comply with Section 33(5) of Act. The High Court, adverting to the said aspect, observed as follows: -

“Petitioner does not deny that he had filed an extract of 1995 electoral roll and even in the electoral roll of 1998 the Part and Serial Number where the petitioner’s name figured was identical. If the Returning Officer had bothered to turn the pages of 1998 electoral roll at the time of scrutiny then the above declaration of the petitioner in the nomination paper would have stood verified and corroborated. But then the reason for rejection of the nomination of the petitioner is not that the petitioner had not annexed 1998 electoral roll. The reason assigned is that he did not have the Aharta as on 1.1.2002 and he had not annexed Styapit (certified) extract of the electoral roll in the regard.”

7. Thereafter, considering the oral evidence, the High Court opined thus: -

“The Court also decides to have a look at the oral evidences which have been adduced on this score. Five witnesses were produced on behalf