V.N. Sinha, J

Election petitioner has filed this petition under Sections 80, 80A and 81 of the Representation of the People Act, 1951(hereinafter referred to as the Act) praying inter alia to declare the election of respondent no.4 from 25-Khagaria Parliamentary Constituency held pursuant to notification dated 2.4.2009 on 30.4.2009, result whereof was declared on 16.5.2009 (hereinafter referred to as the impugned election) as void on the ground mentioned in Sub-section(1)(c) of Section 100 of the Act that the nomination paper of the election petitioner has been improperly rejected under order dated 11.4.2009, Annexure-3 passed by the Returning Officer.

2. Election petitioner presented his nomination paper on 6.4.2009 before the Returning Officer for contesting the impugned election. Returning Officer having received the nomination paper of the petitioner issued check list of documents under his own signature, copy whereof is contained in Annexure-2 to this petition indicating filing of nomination dated 6.4.2009 by the petitioner at 1.25 P.M. Having received the nomination paper from the petitioner and issued the check list of documents, Returning Officer did not point out any defect, deficiency in the nomination paper or the documents including Form 26 filed by the petitioner along with nomination paper. Returning Officer, however, rejected the nomination of the petitioner under order dated 11.4.2009, Annexure-3 on the ground that Form 26 is not duly sworn by the petitioner before a Magistrate of Ist class or a Notary public or Oath Commissioner appointed by the High Court. Having received the rejection order petitioner filed his objection dated 12.4.2009 before the Returning Officer, copy whereof was also forwarded to the Chief Election Officer, Election Commission of India, New Delhi(hereinafter referred to as the Commission) which is also annexed with the election petition as Annexure-4. In paragraph 6 of the election petition, election petitioner explained the circumstances, in which he could not support the statements made in Form 26 filed along with nomination paper, Annexure-5 by an affidavit duly sworn before a Magistrate of Ist class, Notary public or Oath Commissioner appointed by the High Court. In paragraph-7 of the election petition, petitioner has further stated that order dated 11.4.2009, Annexure-3 rejecting his nomination paper is contrary to the grounds for rejection of nomination paper as provided under Sub-section-(2) of Section 36 of the Act. In paragraph 8 of the election petition petitioner has further stated that Form 26 is prescribed by Rule 4A of the Conduct of Election Rules, 1961(hereinafter referred to as the Rules) so as to enable the candidate contesting the election under the Act to furnish further information in the light of Section 33A of the Act but failure of the candidate to support the information furnished in Form 26 by an affidavit cannot be a ground for rejection of the nomination paper as the grounds for rejection provided under Section 36 of the Act does not include failure to support the information given under form 26 by an affidavit. In the light of the aforesaid interpretation of the Act and the Rules petitioner further submitted in the same paragraph that the order rejecting his nomination paper, Annexure-3 is wholly improper, illegal and without jurisdiction. In paragraph 9 of the election petition petitioner has further submitted with reference to Sub-section-(4) of Section 36 of the Act that the Returning Officer is not empowered to reject any nomination paper on the ground of defect which is not of substantial character. In this connection, it is further submitted in the same paragraph that failure to support the information furnished under Form 26 by an affidavit is not a substantial defect as the same is not included in Section 36 of the Act, as such, the order rejecting the nomination paper of the petitioner is clearly illegal. In paragraph 10 of the election peti