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RAJASTHAN HIGH COURT
Arun Bhansali, J.
Pankaj Choudhary - Appellant
Versus
Kailash Choudhary - Respondent
Election Petition No. 6 of 2019
Decided On : 27-04-2021
Election - Election Petition - Representation of the People Act, 1951 - Sections 9, 33(3), 36, 100(1)(c) - The court interpreted the provisions regarding disqualification due to dismissal from service and the necessity of a certificate for valid nomination, concluding that the petitioner's nomination was rightly rejected due to non-compliance with statutory requirements.
Fact of the Case:
The petitioner, a dismissed IPS officer, contested the rejection of his nomination for the Barmer Parliamentary Constituency, claiming the Election Commission failed to issue a necessary certificate for his candidacy, leading to improper rejection of his nomination.
Finding of the Court:
The court found that the petitioner did not provide the required certificate at the time of scrutiny, which mandated rejection of his nomination under the Representation of the People Act, 1951, thus upholding the Returning Officer's decision.
Issues: 1. Whether the nomination of the petitioner was improperly rejected? 2. Whether the election petition is liable to be rejected due to non-compliance with Section 33(3) of the Act?
Ratio Decidendi: The court held that the Returning Officer's decision to reject the nomination was correct as the petitioner failed to provide the necessary certificate at the time of scrutiny, which is a mandatory requirement under the Act.
Result: The election petition is dismissed with costs.
JUDGMENT
Arun Bhansali, J. - This election petition under Sections 80, 80A, 81 and 100(1) (c) of the Representation of the People Act, 1951 ('the Act') has been filed by the petitioner calling in question the election of respondent No.1 from the Barmer Parliamentary Constituency of Rajasthan.
2. It is, inter alia, indicated in the petition that the Election Commission of India ('ECI') notified the following schedule for holding election to various Parliamentary Constituencies including Barmer Parliamentary Constituency as under:-
| " Sr.No. | Particulars | Date |
| 1 | Date of issuing the gazette notification | 02.04.2019 |
| 2 | Last date for filing nomination | 09.04.2019 |
| 3 | Date for scrutiny of nomination | 10.04.2019 |
| 4 | Last date for withdrawal of nomination | 12.04.2019 |
| 5 | Date of polling | 29.04.2019 |
| 6 | Date of counting/declaration of results | 23.05.2019 |
3. It is indicated that the petitioner is an erstwhile IPS Officer appointed by the Govt. of India in Rajasthan Cadre. He was dismissed from service vide order dated 19.02.2019 passed by the Govt. of India, Ministry of Home Affairs for violating the Conduct Rules, 1968. It is claimed that as the petitioner was a proposed candidate for the Barmer Parliamentary Constituency for Parliamentary Elections to be held between April-May, 2019, he contacted the Secretary, ECI through Fax, E-mail, WhatsApp and personally handed over a letter to the ECI on 01.04.2019 requesting issuance of certificate under Sections 9(2) and 33(3) of the Act, which was necessary for the petitioner to contest the elections.
4. The notification for Parliamentary Elections was issued on 02.04.2019 and as per the schedule, last date for filing nomination for Barmer Parliamentary Constituency was 09.04.2019, the scrutiny was held on 10.04.2019 and the last date of withdrawal of nomination was 12.04.2019. The petitioner filed his nomination papers for Barmer Parliamentary Constituency on 08.04.2019.
5. It is indicated in the petition that the nomination papers were not accompanied by certificate envisaged under Section 33(3) of the Act.
6. It is alleged that the ECI, despite the letter dated 01.04.2019, did not issue certificate to the petitioner, however the Under Secretary of ECI issued a letter dated 04.04.2019 to the Chief Electoral Officer, Rajasthan, Jaipur regarding miscellaneous complaints and required it to take appropriate action, in consonance, the Chief Electoral Officer, Rajasthan, Jaipur addressed a letter dated 06.04.2019 to the Secretary, ECI indicating that the certificate was required to be issued by the ECI, New Delhi.
7. It is then indicated in the petition that scrutiny of the nomination papers was held on 10.04.2019, the petitioner made a request to ECI on 10.04.2019 at around 1.03 PM seeking issuance of requisite certificate under Section 33(3) of the Act, however, the same was not responded to. As a result, the nomination form of the petitioner was rejected by the Returning Officer as per Section 36(2)(b) of the Act in absence of requisite certificate.
8. It is then indicated that the petitioner wrote a letter/representation to the ECI on 11.04.2019 indicating his interest to contest the election from Bikaner Parliamentary Constituency and again requiring it to issue certificate by 5 PM on the same date, however, as the requisite certificate was not issued, S.B. Civil Writ Petition No. 5356/2019 was filed seeking direction for issuance of certificate, wherein on 12.04.2019, a order was passed directing the ECI to pass a speaking order on or before 16.04.2019. Pursuant to the said direction, the ECI issued certificate under Section 9(2) and 33(3) of the Act indicating that the charge against the petitioner does not involve 'corruption or 'disloyalty to State'.
9. The petitioner on receiving the certificate applied to the Chief Electoral Officer, ECI, New Delhi praying that he must be allowed to contest election from Barmer Parliamentary Constituency, however, the same was not permitted.
10. Based on the
The judgment emphasizes the importance of compliance with the provisions of the Representation of the People Act, 1951, particularly regarding the mandatory certificate required for candidates dismis....
Returning Officer is not expected to reject a nomination paper, without giving an opportunity to the candidate or his representative present at the time of scrutiny to meet an objection, capable of b....
The burden of proof in election petitions alleging improper acceptance of nominations lies with the petitioner to show material effect on election results.
An election petition may be dismissed if the petitioner fails to establish their locus standi as either a candidate or elector, leading to a lack of substantive legal foundation for the claim.
The nomination was rightly rejected due to substantial defects which could not be corrected post-deadline, validating the Returning Officer’s actions.
An election petition must contain specific pleadings to establish a cause of action, and cannot be dismissed at the preliminary stage if such pleadings are present, as the merits of the case should b....
The failure to rectify substantial defects in a nomination paper justifies its rejection under the Representation of People Act, 1951.
The court affirmed that challenges to election nominations must be made post-election through an election petition, as per Article 329(b) of the Constitution.
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