Improper rejection of nomination nullifies the election, but the person affected is the one whose nomination paper has been rejected.

ARIJIT PASAYAT, J.

( 1 ) THIS election petition has been filed by Shri Somnath Rath challenging election of Shri Bikram Kashari Arukh (hereinafter referred to as the 'elected candidate') to the Orissa State Legislative Assembly, 1995 in respect of 66-Bhanjanagar Assembly Constituency. Though nomination papers submitted by the petitioner, the ejected candidate (respondent No. 1) and respondent Nos. 2 to 4 were accepted, nomination papers submitted by respondents Nos. 5 to 7 were rejected. In other words, petitioner and respondents 1 to 4 were in the election field, and respondent No. 1 was declared elected by the Election officer. Nomination papers of respondents 5 and 6 were rejected on the ground that they were defective. Nomination paper if respondent No. 7 was rejected on the ground that he was a dealer under the Public Distribution Systems (in short, 'pds') and as such was ineligible. Though originally election of respondent No. 1 was challenged on the ground of alleged corrupt practice, same was given up at the threshold before the issues were framed, and ultimately the following Issues were framed. (1) Whether the nomination of any one of the candidates namely Shri Pratap Chandra Swain, Shri Rajendra Kumar Sahu and Shri Sanchanan Das has been improperly rejected by the Returning Officer and as such the election of Bikram Keshari Arukh, the returned candidate (respondent No. 1) for the 66-Bhanjanagar assembly constituency is void? (2) Whether the petition as laid is maintainable?

( 2 ) EVIDENCE was led by the parties in support of the first issue and various contentions were raised, which shall be dealt with in detail. Respondent No. 1 raised question of locus standi of Election Petitioner to question rejection of nomination papers of others, when they had not raised any protest. Additionally it is submitted that copy of the election petition supplied to him was not exact copy of the petition and it did not contain copies of the oath attestation and it was not signed by the petitioner in each page.

( 3 ) UNDER the Representation of the People Act, 1951 (in short, the 'act') which governs the dispute, the election petition can be presented by a candidate or any elector in terms of Section 81 (1) of the Act. No election can be called in question except by an election petition as provided in Section 80 of the Act. Section 100 of the Act provides the grounds on which an election can be called in question. Section 80 is couched almost in same language as Article 329 (b) of the Constitution of India, 1950 (in short, the 'constitution') and provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VII of the Act. It is well recognised that where right of liability is created by a statute which gives a special remedy for enforcing it, only the remedy provided by that statute must be availed of. The expression 'candidate' used in Section 81 (1) means a person who has been or claims to have been duly nominated as a candidate at any election. Section 79 (b) of the Act is relevant in this context. As indicated above, even an elector can present an election petition. Undisputedly the election petitioner was a candidate. That being the position, there is no substance in the plea taken by respondent No. 1 that the election petitioner has no locus standi to present the petition.

( 4 ) THE next question that is to be examined is whether the nomination papers of respondents 5 and 6 have been rejected rightly or otherwise. It is the case of election petition that the defects pointed out are very nominal in nature and cannot be considered to be of substantial character and therefore, the rejection is bad. It is stated that the description of respondent No. 5 and/or his proposer as Pratap Swain and Bhajarao Barad respectively is not fundamentally wrong description as to warrant rejection. It is stated that there is no other electorate bearing similar names in the