V.N. Sinha, J.—This election petition under Sections 80, 80A and 81 of the Representation of the People Act(hereinafter referred to as the Act) has been filed challenging the election of sole respondent from 28-Munger Parliamentary Constituency held on 30.04.2009 on the ground that both the nomination paper of the election petitioner bearing Nos.56, 57 for contesting the said election was improperly rejected by the Returning Officer under order dated 11.04.2009 on the ground that the name of his 10th proposer, namely, Sri Shailesh Kumar is not available in the electoral roll of part no.19, serial no.1175 of 165-Munger(General) Assembly Constituency as has been stated in the Nomination Form, as there are only 921 electors named in the said part of the electoral roll of 165-Munger(General) Assembly Constituency. Before rejecting the nomination paper neither such error was pointed out to the petitioner by the Assistant Returning Officer who received the nomination paper nor the Returning Officer granted the petitioner sufficient indulgence to remove the defect and thereby infracted Sub-Section-(4) of Section 33 and Sub-Section-(5) of Section 36 of the Act. Nomination paper of the election petitioner being improperly rejected, the election of the sole respondent returned candidate from the said constituency is fit to be declared as void.

2. In support of the aforesaid plea election petitioner averred in the election petition that he filed his two sets of nomination paper for the aforesaid election on 9.4.2009 at 2.48 P.M., which was received by the Assistant Returning Officer, who handed over the nomination papers to the Assistants and other officers present to assist the Assistant Returning Officer in receiving the nomination papers. The Assistants and officers present to assist the Assistant Returning Officer cross-checked the contents of nomination paper including the entries made therein and the required documents filed with the nomination paper. After being satisfied that there was no defect in nomination paper petitioner was granted two receipts and check list dated 9.4.2009, Annexures-1, 1/1 & 2 annexed with the election petition asking him to appear for scrutiny on 11.4.2009 at 11 A.M. In paragraph-13 of the election petition categorical assertion has been made by the election petitioner that at the time his nomination paper was received by the Assistant Returning Officer on 9.4.2009 at 2.48 P.M. and verified by the Assistants present to assist him, whereafter receipts and check slip dated 9.4.2009 was issued to the petitioner no defect about the part, serial number of his 10th proposer was pointed out by the Assistant Returning Officer, which was disclosed for the first time by the Returning Officer when he took up the nomination paper of the petitioner for security. In paragraph-15 statement has been made that petitioner was shocked and surprised to learn about the defect in his nomination paper from the Returning Officer and immediately informed the Returning Officer that at the time of presentation/receipt of his nomination paper by the Assistant Returning Officer part, serial number of his proposers were verified by the Assistants present to assist the Assistant Returning Officer in receiving the nomination paper but neither the Assistants nor the Assistant Returning Officer ever pointed out any defect about the part, serial number of any of his proposers in the nomination paper. Further statement made by the petitioner in the said paragraph is that having learnt about the defect, he requested the Returning Officer to furnish the electoral roll of part nos.17, 18 and 19 of 165-Munger(General) Assembly Constituency so as to enable him to correct the mistake but the Returning Officer gave the petitioner electoral rolls of part nos.17 and 19 only. In paragraphs-16, 17 of the election petition statement has been made that having gone through the electoral roll of part nos.17 and 19 of 165-Munger(General) As