Hon’ble Sudhir Agarwal, J.—Respondent No. 1 Sri Pradeep Jain and election petitioner Harishanker Jijauriya (hereinafter referred to as the ‘petitioner”) sought to contest parliamentary election 2009 from 46th Jhansi Parliamentary Constituency. Nomination form of the petitioner was rejected by R.O., vide order dated 11.4.2009 and as a result thereof, the petitioner could not contest the election, polling whereof took place on 30.4.2009 and result was declared on 16.5.2009, wherein respondent No. 1 returned as elected candidate.

2. It is this election of respondent No. 1, as Member of Parliament, from 46th Jhansi Parliamentary Constituency, which has been challenged in the present election on the ground that nomination of petitioner was illegally and invalidly rejected by R.O. as a result whereof, the petitioner could not contest the election and, hence, election of respondent No. 1 is illegal, being in the teeth of Section 80-A read with Section 100(1)(c) of the Representation of the People Act, 1951 (hereinafter referred to as “Act 1951”).

3. Certain facts which are not in dispute but relevant for adjudication of this matter are summarized as under:

4. Election Commission of India (hereinafter referred to as “E.C.I.”) notified parliamentary election for 46th Jhansi Parliamentary Constituency on 2.4.2009, on which date, election notice was also issued by Returning Officer (hereinafter referred to as “R.O.”), declaring election programme as under:

First date of nomination 2.4.2009

Last date of nomination 9.4.2009

Scrutiny of nomination 11.4.2009

Withdrawal of nomination 13.4.2009

Date of poll 30.4.2009

Counting of votes 16.5.2009

Declaration of result 16.5.2009

5. The petitioner submitted his nomination form before R.O. on 8.4.2009. On the same day, a notice was issued to petitioner by R.O., alleging that particulars mentioned in nomination form about petitioner and his proposers do not tally with electoral details in the voters list, therefore, he should submit evidence about voters list on 11.4.2009. The notice was issued under Section 33(5) of Act 1951.

6. The petitioner vide letter dated 11.4.2009 informed R.O. that he has applied for certified copy of voters list but the same has not been made available by the office of R.O., for which, he (petitioner) is not responsible. It thus cannot be said that he (petitioner) has submitted any wrong or incorrect information, deliberately. He requested R.O. to afford him another opportunity of hearing on nomination form and permit him to participate in the election. The said application admittedly was submitted on or after 9 p.m. in the evening since the letter contained an averment that certified copy of voters list was not made available till 9 p.m..

7. The petitioner however, received order dated 11.4.2009, communicating him about rejection of his nomination by R.O. Nomination was rejected mainly on the ground that proposers’ particulars mentioned in nomination form did not tally with the details in the voters’ list and therefore, nomination form was not in accordance with Rules. On 13.4.2009 the R.O. published final list of candidates whose nominations were found in accordance with statute and it had 18 candidates, out of which, 4 belong to recognised National and State level Political parties, 6 to the registered political parties other than National or State level and 8 independents. Respondent No. 1 was candidate of Indian National Congress and ultimately returned elected on 16.5.2009.

8. Respondent No. 1 has contested this petition by filing his written statement/reply dated 18.12.2009. It states that the petitioner was negligent in giving exact description of proposers with electoral number, correct address and their constituency. He committed several discrepancies in the nomination form, which was rightly rejected by R.O., being not in accordance with statute.

9. Initially, petitioner had impleaded E.C.I. and R.O. also as respondent Nos. 2 and 3 respectively. O