THE HON’BLE THE CHIEF JUSTICE ALOK ARADHE AND THE HON’BLE SRI JUSTICE N.V.SHRAVAN KUMAR WRIT PETITION No.31864 of 2023

ORDER:

(Per the Hon’ble the Chief Justice Alok Aradhe)

Mr. A. Venkatesh, learned Senior Counsel representing Mr. R.Anurag, learned counsel for the petitioner.

Mr. Avinash Desai, learned Senior Counsel representing Mohammed Omer Farooq, learned Standing Counsel for the Election Commission of India.

2. Heard on the question of admission.

3. The petitioner is a resident of Rajendranagar Constituency. The petitioner filed nomination paper on 09.11.2023 as a candidate for the Legislative Assembly of Rajendranagar Constituency from Alliance of Democratic Reforms Party for the ensuing Assembly Elections. The aforesaid nomination paper was scrutinised on 13.11.2023 and was rejected on the ground that the names of the proposers entered in the nomination paper filed by the petitioner do not tally with the names entered in electoral roll. The petitioner thereupon has filed this writ petition questioning the validity of order dated 13.11.2023 passed by the Returning Officer primarily on the ground that same is violative of section 33(4) of the Representation of People Act, 1951 (hereinafter referred to as ‘the Act’).

4. Learned Senior Counsel for the petitioner submitted that the writ jurisdiction of this Court can be invoked to correct or smoothen the progress of election proceeding without interrupting, obstructing or delaying the progress of election proceeding. It is further submitted that any decision sought and rendered will not amount to calling in question the election if it subserves the progress of election and facilitates the completion of election. It is also submitted that the defect on which the nomination paper of the petitioner has been rejected is not of substantial character and therefore, rejection of nomination paper is contrary to Section 33(4) of the Act and in any case, an opportunity ought to have been given to the petitioner as envisaged under Section 36(5) of the Act. It is also contended that the order dated 13.11.2023 passed by the Returning Officer is arbitrary. In support of the aforesaid submissions, reliance has been placed on the decisions of Supreme Court in Ram Awadesh Singh vs. Smt. Sumitra Devi, [(1972) 3 SCC 131], Rakesh Kumar vs. Sunil Kumar, [(1999) 2 SCC 489], Election Commission of India vs. Ashok Kumar3 and Union Territory of Ladakh vs. Jammu and Kashmir National Conference, [2023 SCC OnLine SC 1140]

5. On the other hand, learned Senior Counsel for Election Commission of India, while inviting the attention to the counter affidavit, has submitted that the petitioner has submitted two nomination papers bearing Nos.023 and 035. It is also pointed out that the petitioner was duly informed that scrutiny of nomination papers will take place on 13.11.2023 at 11.00 am. However, it is pointed out that despite aforesaid notice, neither the petitioner nor any of his authorised representatives were present during the

3 (2000) 8 SCC 216

process of scrutiny. It is pointed out that as per Section 33 of the Act, nomination paper of a candidate set up by an unrecognised political party would be considered only if it consists the names of ten proposers being electors of the constituency. It is further submitted that the order of rejection has been passed in consonance with the Handbook for Returning Officer 2023 as details regarding the entries in the electoral roll in respect of the proposers in the nomination paper do not tally with the electoral roll. It is also pointed out that in view of bar contained in Article 329(b) of the Constitution of India, no interference is called for in this writ petition. In support of the aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in N.P.Ponnuswami vs. Returning Officer, Namakkal Constituency, [(1952) 1 SCC 94], Rafiq Khan vs. Laxmi Narayan Sharma6, Ram Phal Kundu vs. Kamal Sharma and Resurgence India vs. Election Commission of