Honble Dilip Gupta, J.—An elector has filed this petition under Sections 80 and 81 of ‘The Representation of the People Act, 1951’ (hereinafter referred to as the Act’) calling in question the election of the returned candidate Rasheed Masood from 80 Saharanpur Parliamentary Constituency on the ground that the nomination of the independent candidate Vishwanath had been improperly rejected by the returning officer on the date of scrutiny of the nomination papers.

2. A notification dated 16th April, 2004 was issued calling upon the electors of 80 Saharanpur Parliamentary Constituency to elect the Member of the Lok Sabha. According to the notification the last date for filing nomination was 23rd April, 2004 and the date of scrutiny of nomination paper was 24th April, 2004. Fifteen persons filed nomination papers for the said Parliamentary Constituency. The elections were held and the returning officer declared Rasheed Masood elected from 80 Saharanpur Parliamentary Constituency on 13th May, 2004. In the nomination paper delivered by the independent candidate Vishwanath to the returning officer on 23rd April, the first three proposers Sanjay, Vishal and Satya Pal had all mentioned the part number of the electoral roll of the Constituency as 23 instead of 45 though they had correctly mentioned the serial numbers. The returning officer rejected the nomination form of Vishwanath on the date of scrutiny of nomination on the ground that the names of the first, second and third proposers of Vishwanath were not entered in the electoral roll of the Constituency.

3. This election petition had earlier been assigned by Hon’ble The Chief Justice to another Hon’ble Judge and during the pendency of the petition an application (paper No.A-7) was filed by the returned candidate with a prayer that the election petition be dismissed under Section 86(1) of the Act for non-compliance of the provision of Section 81(3) of the Act. This application was rejected by a detailed order dated 25th May, 2007. Subsequently on 24th August, 2007 the Court directed that the petition be listed on 31st August, 2007 for framing of issues. However, the learned Judge who was assigned this election petition joined a Division Bench and an application was moved by the election petitioner for fresh nomination. This election petition was then assigned by Hon’ble The Chief Justice to this Court by the order dated 12th October, 2007.

4. On 22nd November, 2007 the Court framed seven issues, but the issues that were pressed by the learned counsel for the parties at the time of hearing of the election petition are issue Nos. 5 and 6 which are as follows :

“(5) Whether the nomination of Sri Vishwanath, an independent candidate, has been improperly rejected by the Returning Officer?

(6) Whether the improper rejection of nomination of Sri Vishwanath has rendered the election of Sri Rasheed Masood, the returned candidate, as void and the petitioner is entitled to such a declaration?”

5. Sri Ravi Kiran Jain, learned Senior Counsel appearing for the election petitioner contended that unless evidence is led to the contrary, there is a presumption that the returning officer had performed all that he was required to perform under Section 33(4) of the Act when the nomination paper was delivered by the independent candidate Vishwanath. Elaborating this submission he contended that it should be presumed that the returning officer had satisfied himself that the names and the electoral roll numbers of the proposers as entered in the nomination paper were the same as those entered in the electoral rolls and it was after satisfying himself that the nomination paper was valid in all respects that the returning officer issued the receipt to the independent candidate Vishwanath. He, therefore, contended that in such circumstances the returning officer improperly rejected the nomination paper of Vishwanath on the date of scrutiny on the ground that the names of the first, second and third pr