JUDGMENT

A. K. GANGULY, J. — This writ petition has been filed chal¬lenging a judgment dated 26th February, 2005 passed by the Dis¬trict Judge, Koraput, in Election Petition No.1 of 2003 filed by one Lambodar Turuk.

2. By the said impugned judgment the District Judge held that the election petition has merit and is to be allowed and came to a finding that the rejection of nomination papers of Lambodar Turuk by the Election Officer was improper. Since the rejection of nomination paper was improper the District Judge set aside the entire process of election for Ward No.13 of the N.A.C., Umerkote, and the said election was declared null and void and the election of opposite party No.2 in the said election petition, who is the petitioner in the present writ petition, was set aside. A casual vacancy in Ward No.13 of the N.A.C., Umerk¬ote, was declared and the District Magistrate/Collector, Nabar¬angpur, was directed to take up all such proceedings to fill up the said vacancy by a bye-election. After filing this writ peti¬tion initially a stay was obtained by the writ petitioner as a result of which no steps could be taken to fill up the said vacancy. This Court by an order dated 15.11.2006 vacated the stay on the ground recorded in the said order and called for the lower Court records. Pursuant to the said order, the records have been produced today in Court.

3. This Court called for the records, as the rejection order of Lambodar Turuk passed by the Election Officer was not filed along with this writ petition.

4. We have looked into the records and we find that the order of rejection of nomination papers of Lambodar Turuk is marked as Exts.1 and 2 as two sets of nomination papers were filed by him. On the nomination paper itself the Election Officer has given his endorsement disclosing thereby the reasons for rejection. This Court after reading the same finds that the only reason which was assigned by the Election Officer in support of his order of rejection is that Lambodar Turuk had filed two sets of nomination papers but in both the nomination papers the seconder was absent at the time of scrutiny of the nomination papers. According to the Election Officer seconder has to remain present at the time of scrutiny of the nomination papers. The Election Officer has also noted in the impugned order that a candidate of the same Ward has filed an objection petition stat¬ing that “seconder is absent and also the signature of the sec¬onder is not authenticated”. In view of those facts the Election Officer rejected both the nomination papers of Lambodar Turuk.

5. It has been stated by the learned counsel appearing on behalf of the candidate who raised the objection before the Election Officer that name of the seconder appears in the Elec¬toral Roll.

6. The learned District Judge found that the presence of seconder is not a mandatory requirement under the relevant statu¬tory provisions and by saying so the learned District Judge has referred to Rule 29(1) of the Orissa Municipal (Delimitation of Wards, Reservation of Seats and Conduct of Election) Rules, 1994. The said Rules have been framed under Section 392 of the Orissa Municipal Act, 1950.

7. Under Rule 29 of the said Rules it provides for scrutiny of nomination papers. Rule 29(1) of the Rules on which the Elec¬tion Officer relies runs as follows :-

“29. Scrutiny of nomination papers-(1) On the date appointed for the scrutiny of nomination, the candidates, one proposer and one seconder of each candidate and any other person duly author¬ized in writing by each candidate, and except for the purpose of assisting the Election Officer, no other person, may attend at such time and place as may be specified under Rule 28 and Elec¬tion Officer shall give such person all reasonable facilities to examine the nomination papers of all candidates which have been received as aforesaid.”

From a perusal of the said Rule it appears that on the date fixed for the scrutiny of nomination papers the fol