2003 (9) TMI 773

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....ereas the date fixed for scrutiny of nomination papers was 25th January, 2000. As per the programme, the polling was to take place on 12th February, 2000. As a result of counting of votes, the respondent No. 1 herein was declared elected having been polled 17095 valid votes whereas the appellant herein was shown to have secured 17058 valid votes. The appellant herein filed an election petition challenging the election of respondent No. 1 herein- returned candidate wherein prayers for setting aside the election of the returned candidate and a further relief that he may be declared elected from 318 Panki Legislative Assembly Constituency after inspection and scrutiny of 258 illegally rejected ballot papers in respect of Booth No. 35, were mad....

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....rejection of 258 ballot papers was correct being in violation of Rule 38(1) and Rule 56(2)(h) of the Rules. The High Court by reason of the impugned judgment held that once the error as specified in clause (h) of Rule 56(2) has been committed the Returning Officer had no other option but to reject the said ballot papers. In that view of the matter, the election petition was dismissed. It is against the said judgment of the High Court/Tribunal, the appellant is in appeal before us. Having heard the learned counsel for the paities, we find that the very approach of the Tribunal in dismissing the election petition at the threshold was erroneous. Section 86 of the Act provides that the High Court shall dismiss an election petition which doe....

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....tion 83(1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly 'defective' affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case." It is not a case where respondent No. 1 contended that the allegations made in the election petition were vague which would cause prejudice to him in the matter of filing written statement. Even if such a case had been made out, the Tribunal must remember the difference between the requirement of pleading as regard an election petition based on under Section 100(l)(d)(iii) and the election petition based on Section 100(1) (b) of the Representation of People Act, 1951. In case of an....