The central legal point established in the judgment is the requirement of producing a complete copy of the relevant part of the electoral roll at the time of scrutiny as per S. 33(5) of the Act, and the duty of the Returning Officer to grant an opportunity of hearing before rejecting the nomination form.

In this petition, election of the returned candidate viz. the respondent to the M.P. Legislative Assembly Constituency No. 143, Silwani has been called in question on the ground of improper rejection of the nomination paper, as contemplated in clause (c) of sub-section (1) of S. 100 of the Representation of the People Act, 1951 (for short 'the Act'). The petitioner has sought declarations to the effect that (a) the order dated 8-12-2008 passed by the Assistant Returning Officer was illegal and (b) election of the respondent to the Constituency is void.

2. The corresponding calendar was notified as under -

(1) Last date for filing of nomination papers 7-11-2008

(2) Scrutiny of nomination papers 8-11-2008

(3) Withdrawal of nomination papers 10-11-2008

(4) Date of election 27-11-2008

(5) Declaration of results 8-12-2008

3. Indisputably on 11-8-2008, the petitioner's nomination paper, a copy of which has been tendered in evidence as Exhibit P-1, was rejected for the reason that he, being an elector of a different constituency namely M.P. Legislative Assembly Constituency Udaipura No. 140, had failed to submit a copy of the electoral roll of that constituency or certification from ERO of that constituency, as per requirement of sub-section (5) of Section 33 of the Act.

4. According to the petitioner, rejection of the nomination paper was wholly arbitrary, illegal and against the relevant provisions of the Act, as contained in Sections 33(4), 33(5), 36(2)(b), 36(4) and 39(2)(c) thereof. In support of the assertion, he has further pleaded that -

(A) the nomination form, in the prescribed format, filed in support of his candidature as an independent candidate, was -

(i) duly completed by him in all respects and

(ii) signed by himself

(iii) subscribed by 10 proposers, who are electors of the constituency as required by Section 33(1) of the Act.

(B) Since he was an elector of a different constituency, he had also filed a copy of the relevant part of the electoral roll of that constituency as required by sub-section (5) of Section 33 of the Act.

(C) Letter of Tahsildar (Annexure P-2) clearly reflected that he had annexed a copy of the relevant part of the electoral roll in compliance with provision of sub-section (5) of S. 33 of the Act and even otherwise, in view of the decision in Rakesh Kumar v. Sunil Kumar, AIR 1999 SC 935, the Assistant Returning Officer should have afforded an opportunity of hearing to him before rejecting the nomination paper.

5. While raising preliminary objections to the effect that the petition deserves to be dismissed at the threshold for -

(A) want of compliance with the provision of Section 81(3) of the Act.

(b) non-compliance with the requirements of Section 83(1)(c) of the Act.

(c) absence of a common authorship in signatures on the nomination paper as well as on the petition.

- the respondent, in his written statement, has submitted that rejection of the petitioner's nomination paper was justified in view of the facts that despite grant of opportunity, he did not furnish certified copy of the electoral roll of the constituency which he belonged to and that the photocopy of the electoral roll submitted on his behalf, was not sufficient to establish his identity. According to him, the nomination form was liable to be rejected for other reasons also namely -

(i) It did not bear signature of the petitioner.

(ii) Provision of Article 173(a) of Constitution of India was not complied with.

(iii) The petitioner had made contradictory statements regarding his caste.

6. In the light of these pleadings, the following issues have been framed and amongst them, issue Nos. 3(a) and 3(b), based on legal objections, have already been decided vide order dated 11-1-2010 as preliminary issues -

No. Issues Finding

1. Whether the nomination of the petitioner was improperly rejected

2. Whether the nomination form also deserved rejection for the reasons that -

(i) it did not bear signature of the petitioner.

(ii) for want of compliance with Article