IMPORTANT POINTS
Under section 100(1)(d) an election may be declared void on the ground of improper acceptance of a nomination if such improper acceptance of nomination has materially affected the result of the election.
A person not a voter in any Assembly constituency not entitled to contest election.
In a trial u/s 87 of the Representation of People Act, 1951 provisions of Code of Civil Procedure, 1908 apply.

JUDGMENT :

RANJAN GOGOI, J.

1. The election of the appellant to the No.81 Deosar Constituency of Madhya Pradesh Legislative Assembly which was held on 11.05.2013 has been set aside by the High Court in an election petition filed by the respondent No.1 herein. The validity of the said order of the High Court is the subject matter of the present appeal.

2. On a reading of the election petition filed by the respondent No.1, it would appear to us that several grounds were urged to invalidate the election in question. According to the respondent-election petitioner, one of the nominations filed by him as a candidate of the Indian National Congress Party was wrongly rejected on the ground that the symbol allotment letter was submitted by the election petitioner after the stipulated time. However as two other nominations filed by the respondent-election petitioner as an independent candidate was accepted, he contested the election in which he lost. Consequently, he challenges the rejection of his nomination as a Indian National Congress Party candidate as being wrongful. Apart from the above ground, the election petition was also filed alleging that the appellant-returned candidate was a government servant. In addition to the above, it was pleaded that the appellant-returned candidate had failed to furnish, along with the nomination paper, a copy/certified copy of the electoral roll of No.80 Singrauli constituency in which electoral roll his name was claimed to be appearing against serial No.118. According to the election petitioner on account of the aforesaid omission the returned candidate was not eligible to participate in the election. His nomination, therefore, was wrongly accepted.

3. The High Court answered the first two questions in favour of the returned candidate. However, insofar as the third question set forth above is concerned, the conclusion of the High Court is adverse to the returned candidate. In this connection the High Court came to the conclusion that the returned candidate had not filed the electoral roll or certified copy thereof of No.80 Singrauli Constituency and therefore the returning officer had committed an illegality in accepting the nomination of the returned candidate and in not rejecting the same on account of non-compliance of Sections 33(5) and 36(2)(b) of the Representation of People Act, 1951 (For short, “the 1951 Act”). On the said basis the High Court came to the conclusion that the election of the returned candidate was liable to be declared void under Section 100(1)(a) along with Section 100(1)(d)(i) of the 1951 Act. Consequential directions therefore have been issued. Aggrieved this appeal has been filed.

4. We have heard Shri Shekhar Naphade, learned senior counsel appearing for the appellant, Shri Vivek Tankha, learned senior counsel appearing for the respondent No.1 and Shri Mishra Saurabh, learned counsel for the respondent No.2.

5. As no cross appeal has been filed by the respondent-election petitioner challenging the findings of the High Court adverse to him, the scope of the present appeal is confined to the correctness of the order of the High Court insofar as the third question set forth above is concerned.

6. At the outset the relevant part of the pleadings contained in the election petition insofar as the said issue is concerned may be set out as hereunder :-

1.11 That, the election of the respondent as a member of M.P. Legislative Assembly for Devsar Constituency deserves to be declared as void for the reason that the Returning Officer has wrongly rejected the petitioner's nomination form as candidate sponsored by Indian National Congress and also for wrongly accepting the nomination from the respondent. It is also submitted that the respondent not only failed to submit order by Competent Authority accepting his resignation but also failed to furnish a certified copy of the voter list to entitle him to contest the election from Devsar constituency as he is registered voter of 80, Singraul