The improper acceptance of a nomination paper does not automatically lead to the setting aside of an election. The petitioner must also prove that the improper acceptance materially affected the election result.

1. This Election Petition has been presented and filed on behalf of Sri Rama Nand Prasad Singh against Sri Vidya Sagar Nishad, the candidate who was declared elected in the Bihar Legislative Assembly in the election held in 1995 from 181-Parbatta Assembly Constituency. The petitioner also happened to be a candidate in the said election and he was defeated and was in the 3rd position. The petition has been filed under Secs. 80, 80(A) and 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the R. P. Act) The petition has been filed praying for setting aside the election of the sole respondent in the aforesaid election on the ground that the nomination papers of two of the candidates were accepted, though the same were fit to be rejected. It is stated in the petition that the Returning Officer for the aforesaid election was the Sub-Divisional Officer of Gogari Sub-Division in the district of Khagaria and the election was held on the basis of a Notification issued by the Governor of Bihar for electing the members of the Legislative Assembly to constitute the 11th Assembly. According to the schedule of the Programme in the Notification, the dates were as follows:-

i) The last date for filing of Nomination paper - 23rd of January, 1995.ii) The date of Scrutiny of the Nomination paper - 24th of January, 1995.iii) The last date for withdrawal of candidature - 27th of January, 1995.iv) Date of polling - 21st of March, 1995.v) Date of counting of Ballot papers - 29th March, 1995 to 1st April, 1995.vi) Date of declaration of final result.The 1st of April, 1995.There were altogether thirty nominations accepted by the Returning Officer after due scrutiny. However, on the date of scrutiny, i.e., 24th of January, 1995, the nomination papers of Balram Mandal were accepted by the R. O. ignoring the fact that said Balram Mandal on that date was disqualified for being a candidate, he being a government servant. According to the petitioner he was a panchayat Sewak under the Government of Bihar and, therefore, his nomination was fit to be accepted, as per the provisions of Article 191 of the Constitution. It is further stated that one Parmanand Choudhary had filed nomination as a nominee and the said Sri Parmanand Choudhary happens to be a voter of Chautham Assembly Constituency. According to Sec. 33(5) of the Act, where a candidate is an electorate of a different constituency, a copy of the electoral role of that constituency or the relevant part thereof or a certified copy of the relevant extract of such roll has to be filed along with his nomination papers, but Sri Parmanand Choudhary filed the photo-stat copy of the electoral roll along with his nomination papers. Therefore, the above named candidate Sri Parma Nand Choudhary did not comply with the mandatory provisions of Sec. 33(5) of the R. P. Act. It is also further stated that in his nomination papers, Sri Parma Nand Choudhary mentioned the serial Number and part number of the electoral roll in support of the fact that he was a voter of Chautham Assembly Constituency. On the date of scrutiny, i.e., 24th of January, 1995, the R. O. did not find the name of Sri Parma Nand Choudhary in the part and serial number of the electoral roll which were mentioned in the nomination papers and as required under Sec. 36(6) of the Act, the R. O. passed an order on the nomination papers as Aswkrit, meaning thereby - Rejected. It has been stated that under Sec. 36(6) of the R. P. Act, the R. O. in his capacity as the R. O. performs quashi judicial function while scrutinising the nomination papers and, therefore, after passing the order either of rejection or of acceptance, he ceases to have any power to review the order, but the said R. O. penned through the word - Aswikrit subsequently and accepted the nomination papers of Sri Parma Nand Choudhary in spite of objection on the part of other candidates. It is, therefore asserted that the subsequent acceptance of the nom