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1985 Supreme(All) 313
IN THE HIGH COURT OF ALLAHABAD
S. SAGHIR AHMAD
SHITLA PRASAD SONKAR - Appellant
Versus
ARUN KUMAR NEHRU - Respondents
ELECTION PETITION 5 Of 1985
Decided On : 10/11/1985
A.K.ASTHNA, B.SOLOMAN, J.BHALLA, J.K.SAINI, JAFAR MAHMUD, M.DEELEY
The provisions of S. 81 (3) of the Representation of the People Act, 1951 are mandatory and non-compliance thereof results in the dismissal of the election petition.
Headnote:
ELECTION PETITION - REJECTION OF NOMINATION PAPER - WRONGFUL REJECTION - COUNTERMANDING OF POLL - ASSASSINATION OF CONTESTING CANDIDATE - MANDATORY PROVISIONS OF S. 81 (3) OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - NON-COMPLIANCE - FATAL DEFECT - ELECTION PETITION DISMISSED.
Fact of the Case:
Petitioner's nomination paper was rejected by the Returning Officer on the ground that his name in the nomination paper was not found in the Electoral Roll. The petitioner contended that the rejection was wrongful as his name was commonly known as Shital, which was mentioned in the nomination paper, and that the Returning Officer should have overlooked the technical error under the proviso to Sub-Sec. (4) of S. 33 of the Act. The petitioner also sought countermanding of the poll due to the assassination of one of the contesting candidates, Sri Har Swaroop Vajpai, on the ground that it affected the fairness of the election.
Finding of the Court:
The Court found that the petitioner's nomination paper was wrongly rejected by the Returning Officer as the petitioner had satisfied the Returning Officer by submitting a written application indicating that Shital and Shitla Prasad Sonkar were the same person and that he was commonly known as Shital. The Court also found that the Returning Officer failed to exercise his duty and power under the proviso to Sub-Sec. (4) of S. 33 of the Act to overlook the technical error.
Issues: 1. Whether the petitioner's nomination paper was wrongly rejected by the Returning Officer? 2. Whether the poll should have been countermanded due to the assassination of one of the contesting candidates?
Ratio Decidendi: 1. The Court held that the petitioner's nomination paper was wrongly rejected by the Returning Officer as the petitioner had satisfied the Returning Officer by submitting a written application indicating that Shital and Shitla Prasad Sonkar were the same person and that he was commonly known as Shital. The Court also found that the Returning Officer failed to exercise his duty and power under the proviso to Sub-Sec. (4) of S. 33 of the Act to overlook the technical error. 2. The Court did not decide on the issue of countermanding the poll as the election petition was dismissed on other grounds.
Final Decision: The election petition was dismissed for non-compliance of the mandatory provisions of S. 81 (3) of the Representation of the People Act, 1951.
( 1 ) BY this election petition filed under the Representation of the People Act, 1951 (hereinafter referred to as the Act), the petitioner has challenged the election of respondent No. 1 as Member of the Lok Sabha from 23-Rae Bareli Parliamentary Constituency, on the grounds, inter alia, that his (petitioners) nomination paper had been wrongly rejected by the Returning Officer and that, in any case, the poll should have been counter-manded on account of the assassination of one of the contesting candidates, namely, Sri Har Swaroop Vajpai, who was murdered in the evening of 23-12-84.
( 2 ) THE election programme, as set out in para 2 of the petition was as follows :- last date of filing nomination paper 27-11-84 Date of scrutiny of nomination paper 28-11-84 Date of Withdrawal of candidature 29-11-84 Date of poll if necessary 24-12-84 Date of counting of votes 28-12-84.
( 3 ) THE petitioner being an elector from 109-Rae Bareli Assembly Segment of the aforesaid Lok Sabha Constituency, filed his nomination paper before the Returning Officer. What happened thereafter and how was his nomination paper dealt with by the Returning Officer has been stated by him in para 5 of the election petition which is quoted below :-"5. That in the Electrol Roll full name of the petitioner Shitla Prasad Sonkar was not mentioned but it indicated petitioners name as Shital by which name the petitioner was commonly known. Rest of the details of the Electrolroll tallied with the details furnished in the nomination paper by the petitioner including parentage, age and residence. The scrutiny of the nomination paper was done by the Returning Officer on Nov. 28, 1984. No objection to the nomination paper of the petitioner was raised. However, the Returning Officer wrongly rejected the nomination paper of the petitioner on the ground that the name of the candidate in the nomination paper was not found in the Electoral Roll. The petitioner satisfied the Returning Officer by submitting a written application mentioning therein that Shital and Shitla Prasad Sonkar is one and the same person and indicated that the petitioner was commonly known as Shital. But the Returning Officer took a hyper technical view of the matter and rejected the nomination paper of the petitioner without permitting the petitioner to correct this technical and printing error. The petitioner pointed out to the Returning Officer that proviso of the Sub-Sec. (4) of S. 33 enjoins the duty on the Returning Officer and empowers him to overlook such technical and printing error". The fact relating to the other ground, namely, counter manding of the poll on account of the death of Sri Har Swaroop Vajpai (one of the contesting candidates) are contained in paras 6 to 10 of the petition. Para 6 of the petition, which is relevant for present purposes, is quoted below :-""6. That one Har Swaroop Vajpai son of Sri Sadashiv Vajpai resident of village Rampur Samohda P. S. Bachrawan district Rae Bareli was also a duly nominated contesting candidate for election to Lok Sabha from the said Rae Bareli Parliamentary Constituency. His nomination paper after scrutiny under S. 36 of the R. P. Act was found valid and he did not withdraw his candidature under S. 37 of the R. P. Act. There was resentment in the constituency on the candidature of Arun Nehru, respondent 1 and the alignment of parties and candidates immediately before the date of poll reduced the chances of success of the said Arun Kumar Nehru, respondent 1. Sri Har Swaroop Vajpai had taken a leading part in the alignment of the candidates against Sri A. K. Nehru and he became a potential danger to the respondent 1. In the evening of 23-12-1984 dead body of Sri Har Swaroop Vajpai was found lying on Lucknow-Rae Bareli Road in between Bachrawan and Pohurawan and this fact was reported by Constable Pathak of P. S. Bachrawan to Smt. Kamla alias Ram Rati Vajpayee, wife of the deceased Har Swaroop Vajpai at 9. p. m. on Dec. 23, 1984. Th
