TaxTMI 
TaxTMI 
2011 (12) TMI 766
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....rissa in exercise of powers conferred under Section 5(2) of the 1951 Act issued a notification which was published in the official gazette on March 28, 2009. The 89 -Athagarh Assembly constituency is one of the 147 Assembly constituencies in the State of Orissa and is 'General' constituency. The Commission appointed the following schedule of election: 28.3.2009 To 04.04.2009 = Period prescribed for filing of 'Nominations' 06.04.2009 = date fixed for Scrutiny of 'Nominations' 08.04.2009 = last date for Withdrawal of 'Nominations' 23.04.2009 = date of Polling. 16.05.2009 = date of Counting of Votes. 28.05.2009 = date before which the Election shall be completed.' 3. On April 4, 2009, at 11.25 A.M., the Respondent in Civil Appeal No. 4962 of 2010 - Ranendra Pratap Swain (hereinafter referred to as 'proposed candidate') filed four sets of nomination papers for 89-Athagarh Assembly constituency as a candidate of Biju Janata Dal ('BJD') - a registered and recognized political party in the State of Orissa before the Returning Officer. Seven other candidates including the present Appellant also filed their nomination papers ....
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....ling separate written statement. He raised objections about the maintainability of election petitions on facts and in law. Inter alia, it was denied that the proposed candidate filed original Form-A and Form-B signed in ink by the authorized person of BJD as at the time of scrutiny original Form A and Form B were not available and the Form A and Form B on record did not contain ink signature. 9. On the respective pleadings of the parties, the High Court initially framed four issues but later on framed additional issue No. 5. The relevant two issues, namely, issue No. 3 and issue No. 5 read as follows: 3. Whether the Returning Officer improperly rejected the nomination of the Election Petitioner in violation of the statutory provisions and rules? 5. Whether the Returning Officer improperly rejected the nomination of Sri Ranendra Pratap Swain, the official candidate of Biju Janata Dal in violation of the instructions issued by the Election Commission of India in exercise of its constitutional powers and the principles of natural justice or not? 10. The election Petitioners as well as the returned candidate tendered oral and documentary evidence. On behalf of the election Petiti....
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....rning Officers. 16. By virtue of a notification dated February 10, 2009 (Exhibit 10) issued by the Commission, for the first time, the issuance of check list to a candidate filing nomination paper has been introduced. Prior thereto, there was no such provision. It is provided that in respect of each candidate, the Returning Officer should maintain, in duplicate, the check list of the documents/requirements filed by the candidates. When a candidate files nomination paper, the Returning Officer shall indicate in the second column of the check list whether the concerned documents have been filed or other requirements fulfilled. If any of the documents has not been filed, it requires the Returning Officer to clearly state in the bottom of the check list, indicating the time limit by which such document/s can be submitted. The check list in two sets with all requirements indicated is needed to be signed by the Returning Officer as well as the candidate. The check list (marked original) is handed over to the candidate/proposer who files nomination paper, while check list (marked copy) is retained by the Returning Officer. The notification states that the copy of the check list will serv....
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....rate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. xxx 18. Section 35 provides for notice of nominations and the time and place for their scrutiny. 19. The provision concerning scrutiny of nomination is made in Section 36 of the 1951 Act. To the extent it is relevant, it reads as follows: Section 36. Scrutiny of nomination.-(1) On the date fixed for the scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either....
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....gistered recognised political party or a candidate who is contesting the election as an independent candidate. A recognised political party means a political party recognised by the Commission under the 1968 Order. 22. Rule 5 of the 1961 Rules makes a provision for symbols for elections in parliamentary and assembly constituencies. Rule 10 of 1961 Rules provides for preparation of list of contesting candidates. 23. In exercise of the powers conferred by Article 324 of the Constitution of India read with Section 29A of the 1951 Act and Rules 5 and 10 of the 1961 Rules, the Commission made Election Symbols (Reservation and Allotment) Order, 1968 (for short '1968 Order'). Unregistered political parties are out of its purview. The registered recognized and unrecognized political parties and independent candidates are dealt with by the 1968 Order. 1968 Order came to be amended by notification No. 56/2000/Judl. III dated 1st December, 2000. Para 13 of the 1968 Order is relevant for consideration of the present matter. It reads as follows: 13. When a candidate shall be deemed to be set up by a political party.-For the purposes of an election form any Parliamentary or Assembly ....
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....r has been made out. In case of a reasonable doubt, as to the validity of a nomination paper, the benefit of such doubt must go to the candidate concerned and the nomination paper should be held to be valid. Para 7 seeks to remind the Returning Officer that whenever a candidate's nomination paper is improperly rejected and he is prevented from contesting the election, there is a legal presumption that the result of the election has been materially affected by such improper rejection and the election is liable to be set aside. Para 9.6 sets out some of the defects which may be treated by the Returning Officer as defects of substantial nature. It, inter alia, provides that failure to submit written authorisation form from the political party, within prescribed time and in prescribed form, where a candidate claims to have been set up by a national or state party, is a defect of substantial nature. Para 10.3 says that the nomination paper filed by a candidate claiming to have been set up by a recognised national/state party subscribed by only an elector as proposer is liable to be rejected, if a notice in writing to that effect has not been delivered to the Returning Officer of the....
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....e basis of the rejection of the nomination paper. He submitted that failure to file original Form A and Form B signed in ink was not defect of a substantial character within the meaning of Section 36(4) of the 1951 Act. According to him, para 13 (e) of the 1968 Order that states 'Forms A and B are signed, in ink only, by the said office bearer or person authorised by the party' is only an expression of hope and is not mandatory as it does not use the expression 'shall be signed'. He referred to a decision of this Court in the case of Jagan Nath v. Jaswant Singh and Ors. 1954 SCR 892 in support of his submission that the election law is technical and unless express provision is found, one cannot read the word 'are' as 'shall'. With reference to Section 33(1) of the 1951 Act, Mr. Venugopal would submit that the expression 'a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer' did not require the nomination paper to be accompanied by specified documents. Rule 4 of the 1961 Rules deals with the nomination paper while para 13 of the 1968 Order deals with the political par....
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....s not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected. 30. Section 33 of the 1951 Act enacts that a candidate shall file nomination paper on or before the appointed date in the prescribed form. The form in which nomination paper shall be presented and completed is provided in Rule 4 of the 1961 Rules. According to Rule 4, every nomination paper presented under sub-section (1) of Section 33 shall be completed in such one of the forms 2-A to 2-E, as may be appropriate. Proviso that follows Rule 4 provides that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not be deemed to be a defect of substantial character within the meaning of Section 36(4) of 1951 Act. The controversy in the present case relates to a candidate set up by a recognised political party of the State and, therefore, the relevant form in this regard is Form 2-B. Form 2-B is in three parts. Part-II is not relevant and, therefore, it is not necessary to refer to that. Part-I and P....
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....ter within the meaning of Sub-section (4) of Section 36. Choosing a wrong symbol, leaving blank the space meant for filling the choice of symbols and an error in describing the symbol - are all defects not of a substantial character. An independent candidate may mention as his preference the symbol reserved for a recognised political party, but that again will not be a defect of a substantial character. Dealing with such cases, this Court has held in K.S. Abdul Azeez v. Ramanathan Chettiar AIR 1967 SC 85 that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled, on this ground, during the interval. 31. The applicability of proviso that follows Rule 4, however, is limited to defect in the declaration as to symbol made by a candidate in Form 2-A or 2-B appended to 1961 Rules. Its operation does not extend to the defects in forms required to be filled or completed by a candidate set up by a recognised political party under 1968 Order or non-fulfilment of requirements set out in Clauses (a) to (e) of para 13 of the 1968 Order. 32. 1968 Order has been mad....
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....anner or for one purpose alone.... 4 Solely; merely; exclusively: limiting a statement to a single defined person, thing, or number. adj. 1 Alone in its class; having no fellow or mate; sole; single; solitary: 36. The word 'only' is ordinarily used as an exclusionary term. In the American case of Henry R. Towne v. Mark Eisner 245 US 418, the court said, 'A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used'. In ascertaining the meaning of the word 'only', its placement is material and so also the context in which the word has been used. The use of the word 'only' in Clause (e), para 13, 1968 Order emphasises that Forms A and B are to be signed in ink by the office bearer or person authorised by the recognised party and in no other way. Thus, it excludes any other mode of filing Forms A and B when a candidate is set up by a recognised political party. In our view, therefore, the word 'only' used in Clause (e) of para 13 is indicative of the mandatory character of that provision. 37. Where a candidate is....
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....andidate had filed original Forms A and B duly signed in ink by Shri Navin Patnaik (authorised person of BJD) before the Returning Officer on April 4, 2009 at the time of presentation of nomination paper and check list was issued acknowledging receipt of these forms. The returned candidate disputed the said assertion made in the election petitions. The evidence of the Returning Officer, who was examined as court witness No. 1, and his cross-examination on behalf of the proposed candidate as well as the returned candidate also indicate that the factual controversy in the election petitions centered around on the filing of the original Form-A and Form-B duly signed in ink by the authorised person of BJD with the first set of his nomination. It follows that by framing issue No. 6 at the time of final decision of the election petitions, no prejudice has been caused to the returned candidate. As a matter of fact, no ground of prejudice has been raised in the appeals nor such argument was advanced before us by the learned senior counsel for the returned candidate. We, accordingly, hold that the High Court did not commit any error in framing issue No. 6 which was quite vital and material ....
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....e. He admitted that no such endorsement was made in the check list. The Returning Officer also stated in his deposition that the nomination papers filed by the proposed candidate were examined by him only from technical stand point and it was not his duty to examine the correctness or validity of the documents at the time of filing of the same. 44. Although there is voluminous documentary evidence, in our view, the three documents viz; the check list (Ex. 11), Form 3-A (Ex. 42/F) and the consolidated list of nominated candidates (Ex. 44) are important. The check list marked 'original' (Ex. 11) given to the proposed candidate is as follows: Sl. No. Documents Whether filed (write yes/no) 1. Affidavit in Form-26 yes 2. Affidavit as per the Commission's order dated 27.03.03 yes 3. Certified extract of electoral roll (when candidate is an elector of a different constituency) Not needed 4. Forms A and B (applicable in the case of candidates set up by political parties) yes 5. Copy of caste certificate (if the candidate claims to belong to SC/ST) Not needed 6. Security deposit (whether made) yes 7. Oath/affirmation (whether taken) yes The following d....
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.... such candidates file Form A and Form B duly signed in ink by the authorised officer of the concerned political party. In the event of filing of Form A and Form B otherwise, an endorsement would obviously be made against that column in the check list and time would be given to make up the deficiency by 3.00 p.m. on the last day of nomination. In the circumstances, having regard to the significance of the check list, if Forms A and B were not filed in original by the proposed candidate, an endorsement would have been made by the Returning Officer that only xerox copies of Forms A and B were filed. No doubt under Section 33(4) of the 1951 Act, the Returning Officer is not expected to make a detailed scrutiny of the nomination paper presented before him but in the case of a candidate who has filed his nomination paper as a candidate set up by a recognised political party and in view of para 13 of the 1968 Order, the Returning Officer would surely check whether Form A and Form B suffer from any defect. 49. As a matter of fact, to obviate unnecessary dispute about presentation of nomination paper by a candidate, the Commission in the handbook has provided for guidelines pertaining to c....
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..... He admitted in his evidence that the xerox copies of the nomination papers and documents were got prepared through his officials for the purpose of displaying on the notice board. He also admitted that since proposed candidate had filed all documents required in the nomination form, no further endorsement was made in the check list that he (proposed candidate) was required to file any documents. Moreover, with regard to another candidate, Janaki Rout in respect of 89-Athagarh Assembly Constituency, the Returning Officer stated that he asked him to file the document which he had not filed along with the nomination paper by 3.00 p.m. at the latest. In respect of yet another candidate Bijaya Kumar Biswal, in the check list, he had endorsed therein that the certified extract of the electoral roll was not filed and asked him to file the same at 11.00 a.m. on April 6, 2009 at the latest. It is, thus, seen that the Returning Officer was conscious of his duties as per the statutory provisions and the guidelines issued by the Commission by way of handbook. On presentation of nomination papers by respective candidates wherever deficiencies were found, he made endorsement in the check list ....
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.... function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct.... 53. In Azhar Hussain v. Rajiv Gandhi AIR 1986 SC 1253, this Court held that an election petition must be dismissed if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. 54. In Hari Shanker Jain v. Sonia Gandhi (2001) 8 SCC 233, this Court reiterated the mandatory provision contained in Section 83(1)(a) of the 1951 Act and observed therein that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, this Court said that they must be such facts as would afford the basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. 55. A 3-Judge Bench of this Court in Pothula Rama Rao v. Pendyala Venakat....
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....ies for claim. In an election petition, which does not contain material facts, no relief can be granted. 37. The phrase 'material fact' as used in Section 83 (1) (a) of the Act or Order 6 Rule 2 of the Code of Civil Procedure has not been defined in the Act or the Code of Civil Procedure. In our opinion all specific and primary facts which are required to be proved by a party for the relief claimed are material facts. It is settled legal position that all material facts must be pleaded by the party on which the relief is founded. Its object and purpose is to enable the contesting party to know the case which it has to meet. An election petition can be summarily dismissed if it does not furnish the material facts to give rise to a cause of action. However, what are the material facts always depend upon the facts of each case and no rule of universal application is possible to be laid down in this regard. 57. In view of the above legal position, there is no doubt that in a case under Section 100(1)(c) of the 1951 Act, the only issue before the Court is improper rejection of nomination paper and the court is required to examine the correctness and propriety of the order by ....
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....r suffers from inconsistency and is an outcome of non application of mind. 5 (E) That on the date of scrutiny no objection was raised by any of the contesting candidates or any person on their behalf present at the time and place of scrutiny to the effect that the Form A & B, filed by the Election Petitioner with his first set of 'NOMINATION' were not original not it contains the signature of the authorised person IN INK were Xerox copies. The complaint was raised by the Returning Officer himself who had received all the four sets of Nominations, along with other affidavits, documents original money receipt and original Form A & B, duly signed in ink, by the authorised person, and had signed the CHECK LIST which is a document required to be signed & delivered to the candidate in exercise of his statutory powers on 04.04.2009. The partisan attitude and hostility of the Returning Officer towards the Election Petitioner emanates from his own conduct, when he refused minimum opportunity to the Election Petitioner to REBUT the so called allegations regarding non-submission of original Form - A & B containing signature of authorised person in ink, which a candidate is entitle....
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....e signature of P.W. 1 the proposer of Ranendra Pratap Swain, partially got effected, the Returning Officer asked him to put another signature and accordingly he did it. When the Returning Officer was alive to find out an effaced signature in the Nomination, it appears some what fishy how he filed to detect the Xerox copies of the original ink signed Form A and Form B, if filed. The original ink signed Form A and Form B, if filed. The contention of Learned Counsel for the Respondent that there was no pleading with regard to Form 3A and consolidated 'List of Nominated Candidates-Checks If' in either of the election petitions and as such the same cannot be relied upon cannot be accepted. It is the fundamental rule of pleadings that pleading must contain a statement of the material facts, but not the evidence by which they are to be proved. In the present case, it has been averred in the election petitions that Shri Ranendra Pratap Swain filed the Nomination along with required documents including original Form A and Form B ink signed, before the Returning Officer. Moreover, Form 3A and consolidated 'List of Nominated Candidates-Checks if' have been admitted as Exts. 42....
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....e accompanying documents of all the eight candidates were Xeroxed outside in Anand Xerox of Athagarh. He has also admitted that on 04.04.2009 all the four sets of Nomination papers of Sri Ranendra Pratap Swain were Xeroxed to display the same in his Notice Board. The possibility that, in the process the original ink signed Form A and Form B were inadvertently exchanged for the Xerox copies thereof, cannot be ruled out. Under such premises, in my considered opinion, Sri Ranendra Pratap Swain had filed the original Form-A and Form-B duly signed in ink by the authorised person with the 1st set of his Nomination. Accordingly, issue No. 6 is answered in affirmative. 62. In what we have already discussed above, we do not find any error in the consideration of the matter by the High Court. 63. The election Petitioner, as noticed above, in ground 5(E) set up the case that the objection of non-filing of original Forms A and B signed in ink by the authorised officer of the party was not raised by any of the contesting candidates or any person on their behalf present at the time and place of scrutiny. It was the Returning Officer who raised the issue of non-filing of original Forms A and B ....