1.The petitioner, in Election Petition No.4 of 2009 challenges the declaration of result dated 16.05.2009 declaring the sole Respondent, Ramesh Rout, to have been elected as Member of the Orissa Legislative Assembly from 89-Athagarh Assembly Constituency on the ground that rejection of his nomination by the Returning Officer is illegal and improper. He has prayed to: i) declare the election of the respondent to be void;
ii) declare that a casual vacancy has been created so far as it relates to 89-Athagarh Assembly Constituency and
iii) Direct the appropriate authority to conduct election with respect of 89-Athagarh Assembly Constituency within the time specified/prescribed under law and other ancillary reliefs.
In Election Petition No.6 of 2009, Rabindra Nath Rout has also challenged the said election on the same ground substantially with the same prayer. So, both the election petitions were heard analogously and as such a common judgment is passed there under.
2. The schedule of election relating to 89-Athagarh Assembly Constituency is as follows: 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
During the period prescribed, eight candidates including the petitioner in E.P. No.4 of 2009, Sri Ranendra Pratap Swain filed their respective nominations. As per the election petitions on 4.4.2009 at 11.25 A.M., Sri Ranendra Pratap Swain presented four sets of Nomination along with the required documents before the Returning Officer. In the 1st set of Nomination, he filed the original Form-A and Form-B, signed by the authorized person in ink, showing that he had been set up by Biju Janata Dal to contest as party nominee, whereas with the other three sets of Nomination, he filed three sets of Xerox copies of the original of Forms-A and Form-B duly authenticated by notary, Shri Ambika Prasad Ray, Advocate. The Returning Officer carried out preliminary examination of the Nomination and all accompanying documents then and there and granted Check List in token of receipt of the four sets of Nomination including the required documents at 11.45 A.M. on the same date. According to the election petitioners, if any of the documents was not filed along with the Nomination, it was obligatory on the part of the Returning Officer to mention the same in the bottom of the Check List, indicating the time limit by which, it would be submitted. No such endorsement was made in the Check List granted to the petitioner. On the date of scrutiny, no objection was raised by any of the contesting candidates or any person on their behalf that Form-A and Form-B filed by Sri Ranendra Pratap Swain with his first set of Nomination, were not in original, containing the signature of the authorized person in ink. The complain was raised by the Returning Officer himself that Forms-A and Form-B were two Xerox copies and that the same were not signed in ink by the authorized person. The representative of the election petitioner, Sri Ranendra Pratap Swain requested the Returning Officer in writing to allow some time to rebut the allegation regarding non-submission of the original Form-A and Form-B, containing the signatures of the authorized person in ink, but, he rejected the same illegally. Due to the illegality committed by the Returning Officer, the Petitioner could not contest the election. The result of the election was declared on 16.05.2009 and respondent was declared elected. Thereafter, within the statutory period, the petitioner filed the present election petition with the prayer as here-in- before stated.
3. The respondent in his written statement denied the averments of the petitioners that election petitioner, Sri Ranendra Pratap Swain filed Form-A and Form-B in original in his first set of Nomination. According to him, at the stage of filing the Nomination along with other documents, Returning Officer is required only to make a preliminary examination of the same; detailed scrutiny is not required at that stage. All that is required at that stage is disclosure by the candidate as to what documents he has filed. A Check List is issued to the candidate by the Returning Officer as a proof of the fact that the documents disclosed by the candidate have been filed along with the Nomination. It can not prove the genuineness or the correctness of the documents referred to in it. Non-filing of original Form-A and Form-B signed in ink being a defect of substantial nature, the Returning Officer has rightly rejected the Nomination of Sri Ranendra Pratap Swain. Since it is the case of the election petitioner that he had filed the original Form-A and Form-B, the question of granting him opportunity, to rebut the objection raised by the Returning Officer, did not arise. The Respondent has also taken the plea that the election petitions are bad for non-joinder of necessary party. According to him, eight candidates contested the election for 89-Athagarh Assembly Constituency, out of whom, petitioners only chose the respondent to array him as a party. As such election petitions are bad for non-joinder of necessary party. Furthermore, he has taken the plea that the election petitions are not maintainable.
4. On the basis of above pleadings of the parties, the following issues are framed. 1) Whether the Election Petition is maintainable?
2) Whether it is bad for non-joinder of necessary parties?
3) Whether the Returning Officer improperly rejected the Nomination of the Election Petitioner in violation of the statutory provisions and rules?
4) Relief if any, the Election Petitioner is entitled to?
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 exercising of its constitutional powers and the principles of natural justice or not ?
As per the pleadings of the petitioners, election petitioner, Sri Ranendra Pratap Swain, filed original Forms-A and Form-B being duly signed by ink by the authorized person with his 1st set of Nomination, which is denied by the respondent. The parties led evidence to establish their stands in this regard, but no specific issue has been framed there under. So it would be just and proper to add the following issue as issue no.6.
Issue No.6
Whether the Election Petitioner Sri Ranendra Pratap Swain filed the original Form-A and Form-B being duly signed in ink by the authorized person with the 1st set of his Nomination?
5. In order to establish their case, the petitioners examined three witnesses- P.W.1 is election petitioner in E.P. No.6 of 2009 and also the proposer of Sri Ranendra Pratap Swain in the 1st set of Nomination, P.W.2 is Sri Ranendra Pratap Swain and P.W.3 is his authorized agent to the scrutiny of his Nomination along with the required documents. Respondent examined 4 witnesses- R.W.1 is the respondent himself, R.W.2 is a witness to a scooter accident, caused by Ranendra Pratap Swain, on the date of filing Nomination, R.W.3 is a witness to the filing of Nomination by Sri Ranendra Pratap Swain and R.W.4 is a witness who heard the Returning Officer enquiring about B.J.D. Party ticket. The Returning Officer was examined as Court Witness No.1.
6. Issue No.6. For the sake of convenience, issue no.6 is taken up for consideration first. It transpires from the evidence of P.Ws.1 and 2 that on 04.04.2009 at 11.25 A.M. the Election Petitioner, Sri Ranendra Pratap Swain submitted four sets of Nomination along with the required documents including original Form-A and Form-B signed in ink, by Shri Nabeen Patanaik, President, Biju Janata Dal, who was the authorized signatory to sign such forms on behalf of Biju Janata Dal, before the Returning Officer. All the four sets of Nomination together with accompanying documents were thoroughly verified by the Returning Officer in their presence and in presence of others whereafter he granted the Check List to the election petitioner, Sri Ranendra Pratap Swain at 11.45 a.m. on 04.04.2009.
7. It further transpires from their evidence that while handing over the Check List to Sri Ranendra Pratap Swain, the Returning Officer said "what ever original Forms and documents that you have given/submitted and I have received from you, have been clearly mentioned by me in this "Check List, You preserve this Check List with you". No suggestion was given to P.W.1 that the original Form A and and Form B singed in ink by Shri Nabeen Patanaik, President of Biju Janata Dal were not filed in the 1st set of Nomination. On perusal of the evidence of witness no.1 for the Respondent (Respondent himself), it is found that he has specifically stated on oath that he was not present in the office room of the Returning Officer while Sri Ranendra Pratap Swain filed his Nomination. As such, he could not say whether he filed the 1st set of Nomination along with other original documents, including Form-A and Form-B. Similarly, Court witness No.1, the Returning Officer in his evidence, could not positively say that Ranendra Pratap Swain did not file original Forms A and Form B signed in ink. He specifically stated that in case it had come to his notice that Form A and Form B were not signed by the authorized signatory in ink, he would have endorsed it on the bottom of the Check List and asked the candidate to file the original ink signed copy of the said forms within time. Admittedly, there was no such endorsement in both the Check Lists-original and the duplicate, marked as Exhibits 11 and 22. Of course, in his evidence, Court witness No.1 has stated that he examined the Nomination along with the required documents from technical stand point only. It was not his duty to examine the correctness or validity of the documents at the time of filing the same. On 6.4.2009, during scrutiny of the Nomination along with other required documents, he came to know that Sri Ranendra Pratap Swain did not file the original Form-A and Form-B signed in ink, instead he filed the Xerox copies thereof. Since he had filed the Nomination along with all required documents, he did not endorse in the Check List indicating that he was required to file any document.
8. Learned senior counsel, Sri B.Mishra appearing for the Election Petitioner, Ranendra Pratap Swain submitted that as found from the evidence of P.W.1, the proposer of Ranendra Pratap Swain, with respect to first set of Nomination, since his signature in the Nomination was partially effaced by coming in contact with sweat while handling the documents, the Returning Officer asked him to put another signature and accordingly, he put his second signature. When confronted to the Court Witness No.1, he failed to recollect the same. But the Nomination in Ext.4 shows that P.W.1, Rabindra Rout has put two signatures in the space meant for signature of proposer and that one of the signatures has been partially effaced. This shows that the Returning Officer meticulously examined the Nomination and the accompanying documents. The Returning Officer has specifically stated in his evidence that he can distinguish between a original document and the Xerox copy thereof. According to Mr. Mishra the Returning Officer did not make any endorsement in the Check Lists, marked Exts.11 and 22 because Form A and Form B were filed in original.
9. Mr. Mishra further submitted that as per para 22, Chapter-V of the Hand Book of Returning Officer, after 3 P.M. on each day between the date of notification and the last date for making nominations, the Returning Officer is required to publish on his notice board a notice of the Nomination Papers presented before him on that date in Form 3-A. In the instant case, on 4.4.2009, the Returning Officer duly notified the same in Form-3 A (Ext.42/f) indicating under column No.6 thereof that the election petitioner, Ranendra Pratap Swain is the nominee of Biju Janata Dal. So, he must have verified Form-A and Form-B.
10. Mr. Mishra further submitted that again as required under para-29.1 Chapter-V of the Hand Book of Returning Officer and the instruction issued by the Election Commission of India, immediately after the last date and time fixed for filing Nomination Papers, the Returning Officer is duty bound to submit the consolidated "List of Nominated Candidates-Checks If", in the prescribed formant to the Chief Electoral Officer of the State and other Statutory Authorities including Election Commission of India. In the case at hand, the Returning Officer submitted the consolidated "List of Nominated Candidates-Checks If", (Ext-44), to the Chief Electoral Officer of Orissa and other Statutory Authorities, where at Column No.4 against the name of Shri Ranendra Pratap Swain, the symbol "Conch" has been mentioned. With regard to political party affiliation, the Returning Officer mentioned in column no.5 of Ext.44/f that he was set up by "Biju Janata Dal". He has also endorsed in Column No.6 thereof as "Yes" meaning thereby that he received Form A and Form B from Ranendra Pratap Swain by 3.00 P.M. dated 4.4.2009. He has also endorsed as "Main Candidate" in column No.7 of the said document, thereby indicating that Shri Ranendra Pratap Swain was the main candidate set up by Biju Janata Dal. According to Mr. Mishra, the Returning Officer must have verified Form A and Form B, before he filled up column Nos.4 to 7 of the consolidated List of Nominated Candidates-Checks If". So, according to him, it is clearly established that after verifying Form A and Form B of the Election Petitioner, Ranendra Pratap Swain carefully and being satisfied that he submitted the original Form A and Form B, duly signed in ink by the authorized signatory of Biju Janata Dal, the Returning Officer mentioned the details in the above Statutory Form and submitted the same to the Statutory Authorities. He further submitted that Exts 11,22 and 42/f,43 and 44 are all statutorily maintained documents being prepared by a public officer in due discharge of his public duty. So their probative value is very high. In support of his submission, he relied on the decision State of Bihar v. Sri Radha Krishna Singh & Others, AIR 1983 SC, page-684.
11. Mr. Palit, learned counsel appearing for the sole Respondent contended that at the stage of filing of Nomination Papers, the Returning Officer is required to only make a preliminary examination of the same and no detailed scrutiny is required at that stage. All that is required at that stage, is the disclosure by the candidate of the documents he has filed. Check List is issued to a candidate as proof of the documents disclosed by him to have been filed along with the Nomination papers. It does not prove the genuineness and correctness of the documents referred to in it. Had it been the intention of the Legislature requiring the Returning Officer to conduct a detailed enquiry at the stage of filing of the Nomination papers, then there was no need of inserting Section 36 to the Representation of the People Act, 1951 which envisages about scrutiny of such documents. In the instant case, the Returning Officer has rightly stated on oath before this court that he did not verify the validity or genuineness of the documents accompanied with the Nomination at the stage of filing of the same. So according to learned counsel for the Respondent, only because the Check List was issued showing receipt of documents filed by the election petitioner, Ranendra Pratap Swain without any endorsement below it, it would not confirm that original ink signed Form A and Form B were filed. Similarly, the information given in Form 3A, marked as Ext 42/f and the consolidated "List of Nominated Candidates-Checks If" marked as Ext 44 cannot confirm that original Form A and Form B signed in ink were filed. He further submitted that no averment was made in either of the election petitions with regard to Form 3A and the Consolidated "List of Nominated candidates-Checks If". So, in absence of such averment in the pleadings, the evidence with regard to form 3A and the consolidated "List of Nominated Candidates-Checks If", cannot be relied upon.
12. Learned counsel appearing for the sole respondent further submitted that P Ws 1 and 2 in their evidence in affidavit stated that, while handing over the Check List on 4.4.2009 at 11.45 A.M. to Shri Ranendra Pratap Swain, the Returning Officer said that "whatever original forms and documents that you have submitted and I have received from you have been clearly mentioned by me in the Check List, you preserve the Check List with you." But there is no pleading to that effect. So, the same cannot be relied upon.
13. As found from the evidence of P.Ws 1 and 2, the latter filed four sets of Nomination along with other accompanying documents. In the 1st set of Nomination Papers, he filed original ink signed Form A and Form B. Accordingly, the Returning Officer issued the Check List to Sri Ranendra Pratap Swan. They further deposed that while handing over the Check List, the Returning Officer stated that "whatever original forms and documents that you have submitted and I have received from you have been clearly mentioned by me in the Check List. You preserve the Check List with you. If in fact the Returning Officer had stated so, it being a material fact, the same should have been averred in the election petition. In absence of pleading this part of evidence of P.Ws 1 and 2 cannot be relied upon. According to the evidence of Returning Officer, on examining the documents on technical stand point, he found the election petitioner, Sri Ranendra Pratap Swain to have filed all required documents and accordingly he issued the Check List marked Ext 22 to him. He fairly admitted in his evidence that he can distinguish a Xerox copy from its original. He further deposed that had it come to his notice that Sri Ranendra Pratap Swain filed the Xerox copies of the original ink signed Form A and Form B, he would have endorsed it in the bottom of the Check List and directed him to file the original ones. Again on 4.4.2009 after the time fixed for filing the Nomination Papers was over, he prepared copy of those documents in Form 3A to publish in the notice board. At that time also he could not detect the filing of Xerox copies of the original ink signed Form A and Form B. Furthermore, when he prepared the consolidated "List of Nominated Candidates-Checks If", he could not detect the so called defect. He mentioned the symbol "Conch" in the appropriate column of the said form so also the name of political party, which set up the candidate, Sri Ranendra Pratap Swain. Since the signature of P.W.1 the proposer of Ranendra Pratap Swain, partially got effaced, 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 failed to detect the Xerox copies of 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/f and 44 respectively without objection. So their validity cannot be questioned. As per the decision State of Orissa and others (supra) their probative value is also very high. Even if those documents were not referred to in the election petitions, the evidence led in that respect can be accepted.
14. No doubt at the time of filing of Nomination, the Returning Officer is not required to scrutinize the Nomination and the accompanying documents in minor details, but he is duty bound to examine the same on technical stand point. Now the pertinent question is whether he was expected to examine whether the original ink signed Form A and Form B were filed, while examining the Nomination Paper along with the accompanying documents, on technical stand point. In my considered opinion, he had to do so, particularly when he deposed that had it come to his notice that Sri Ranendra Pratap Swain filed the Xerox copies of the original ink signed Form-A and Form-B, he would have endorsed it in the bottom of the Check List and directed him to file the original ones. At this stage Mr. Palit, learned counsel for the respondent submitted that unless, an election petitioner fully established his case, it would not be proper to set aside the election. In support of his submission, he relied on the decision in the case of Ram Phal Kundu vs. Kamal Sharma, AIR 2004 Supreme Court 1657, where the apex Court held as follows:-
"Therefore, unless the election petitioner fully established his case, it will not be legally correct to set aside the election of the appellant."
As found from the evidence of P.Ws. 1 and 2 the latter filed the original ink signed Form A and Form B in his 1st set of Nomination. This part of their evidence could not be shaken. Even no suggestion was given to P.W.1 that P.W.2 did not file original ink signed Form A and Form B in his 1 st set of Nomination. So, the above decision is not applicable to the present case. The Returning Officer has admitted in his evidence that the Nominations along with all the accompanying documents of all the eight candidates were Xeroxed outside in Anand Xerox of Athagarh. He has also admitted that on 4.4.2009 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 authorized person with the 1st set of his Nomination. Accordingly, issue no.6 is answered in affirmative.
15. Issue Nos.3 and 5. It transpires from the evidence of P.Ws 1 and 3 that the latter was authorized by the election petitioner, Sri Ranendra Pratap Swain, in writing as per Ext.46 to represent him at the time of scrutiny of his Nomination Papers. Scrutiny of Nomination Papers in respect of 89- Athagarh Assembly Constituency continued from 1.45 P.M. to 2 P.M. on 6.4.2009. No objection was raised to the Nomination of election petitioner, Ranendra Pratap Swain, by any of the candidates or their proposers or agents. The Returning Officer himself raised suo-motu objection that the original ink signed Form A and Form B were not filed by Shri Ranendra Pratap Swain.P.W.3 showed the duplicate Check List, Ext.22 to the Returning Officer stating that he (Returning Officer) personally received the said forms and acknowledged receipt of the same. Both P.Ws. 1 and 3 requested the Returning Officer to show them those two documents, but, he did not allow them to see the same. So, P.W.3 filed an application for time (Ext.47) to rebut the objection, but it was turn down. Then the Returning Officer rejected all the four sets of Nominations of Sri Ranendra Pratap Swain. Learned senior counsel Sri B.Mishra submitted that as required under the proviso to section 36(5) of the Representation of the People Act, 1951, the Returning Officer was duty bound to give an opportunity to rebut the allegation that Form A and Form B were not the original ink signed documents. But despite the application made by P.W.3 to give such an opportunity, the Returning Officer turned it down whereby the election petitioner,Ranendra Pratap Swain was highly prejudiced and on this ground alone, the election petition should be allowed. In support of his submission he relied on the decision Rakesh Kumar v. Sunil Kumar, AIR 1999 SC page 935.Smt.Menaka Gandhi vs. Union of India, AIR 1978 SC 597, Jagannath Ramachandra Nunekar vs. JenuGovinda Kadam and others AIR 1989 SC 475. Per contra, learned counsel appearing for the sole Respondent contended that as per the evidence of Returning Officer, he did not grant time since date of filing the Form A and Form B had already been over. Even if time had been allowed, the election petitioner, Ranendra Pratap Swain or his agent could not have legally filed the original ink signed Form A and Form B on the date of scrutiny, as such, there was no violation of natural justice causing prejudice to any one. In support of his submission he relied on the decisions, State Bank of Patialla and others v. S.K.Sharma (1996) 3 SCC 364 and Aligarh Muslim Unversity and others v. Mansoor Alli Khan,(2000)7 SCC 529.
16. Admittedly, the date for filing Nomination along with other relevant documents including Form A and Form B was fixed to 4.4.2009. If the original ink signed Form A and Form B had not been filed on 4.4.2009, the same could not have been legally filed on the date of scrutiny i.e. on 6.4.2009, which was fairly conceded to by Mr. B. Mishra. But he submitted that, had he been given a chance, the election petitioner, Sri Ranendra Pratap Swain could have requested the Returning Officer to search for the original Form A and Form B or he would have rebutted the objection by adducing evidence. As no time was granted he was highly prejudiced.
In the decision Rakesh Kumar (supra), the apex court held as follows:- "Through the proviso, the legislature has provided that in case an objection is raised during the scrutiny, to the validity of a nomination paper of a candidate, the Returning Officer, may, give an opportunity to the concerned candidate to rebut the objection by giving him time "not later than the next day". This is in accord with the principles of natural justice also. Since, no other candidate had raised any objection to the claim of the respondent of being the official candidate of BJP, and the objection had been raised by the Returning Officer suo motu, the mandate of the proviso to Section 36 (5) of the Act warranted the holding of a summary enquiry, to determine the validity of the nomination paper by the returning officer, while exercising his quasi-judicial function. In the present case, the respondent had sought an opportunity to meet the objection, but even if he had not sought such an opportunity, the returning officer ought to have granted him time to meet the objection in the interest of justice and fair play".
17. In the decision Mrs. Maneka Gandhi (supra) the question was whether passport of a person can be impounded without giving him/her an opportunity of being heard. There is no express provision in the passports Act, 1967, which requires that the audi alteram partem Rule should be followed before impounding a passport. But, still then, the apex Court held that before impounding the passport, the person concerned must be given a chance of being heard. In the case of Jagannath Ramchandra Nunekar (supra) a candidate seeking election from a constituency, other than one, in which he was registered as a voter, applied to the Electoral Registration Officer of the Assembly Constituency, in which, he was registered as a voter, for a certified copy of the relevant entry in the electoral roll containing his name for producing it before the Returning Officer along with his nomination paper in respect of Assembly election of the State of Maharastra to be held in 1986. The Registration Officer gave him a certificate on the basis of the electoral roll of the year 1984. The Returning Officer did not accept it as it was not the certified copy from the latest electoral Roll. So the candidate (appellant) again applied for a certified copy of the relevant entry from the latest electoral roll published. The certified copy was granted at 5.00 P.M. dated 10.1.1986, i.e., the last date fixed for filing Nomination. He produced it before the Returning Officer on the next date, i.e., the date fixed for scrutiny of the Nomination Papers. But the Returning Officer stated that he had already rejected his Nomination. The apex Court held that the order of rejection of the Nomination Paper of the candidate was illegal. In the decision State Bank of Patiala and others (supra) cited on behalf of the respondent, it was alleged by the respondent, an employee of State Bank of Patiala, that he was prejudiced in a departmental proceeding, since he was not supplied with copies of statements of witnesses and documents, as required under the Regulation, 1968. Even though, the Regulation mandates that the delinquent shall be supplied with copies of statement of witnesses, if any, recorded earlier, not later than three days before commencement of examination of witnesses by the Enquiring authority, in fact, this provision was not complied with in strict sense. But the delinquent was allowed to go through the statement of witnesses and other documents. By the time the witnesses were examined, more than three days had been already expired, since the date on which the delinquent went through the statement of the witnesses and other documents. So, the apex Court held that even though there was violation of the Regulation, still then, as no prejudice was caused to the delinquent, he could not take advantage of mere violation of the Regulation. In the case of Aligarh Muslim University and others (supra), the apex Court held that even though opportunity was not given to the respondent to show cause, still then, since no other conclusion was possible on indisputable facts, his removal from service was found to be correct.
18. In the case at hand, it is the constant stand of the election petitioners that Sri Ranendra pratap Swain filed the original ink singed Form A Form B in the 1 st set of Nomination papers. Admittedly, Nomination papers of all the contesting candidates of 89-Athagarh Assembly Constituency were Xeroxed outside. So, in the process, the original ink signed Form A and Form B might have been misplaced and had the election petitioner, Ranendra Pratap Swain got an opportunity, he could have requested the Returning Officer to search for those documents or he could have adduced evidence to show that in fact he had filed the same. Since no such opportunity was given, he was thereby prejudiced. The decisions cited on behalf of the respondent would not be applicable to the present case.
19. Learned counsel for the respondent further submitted that as per the proviso to Section 36(5) of the Representation of People Act, the Returning Officer may or may not allow time to rebut any objection. In other words, he is not bound to grant time. In support of his submission he relied on the decisions A.N.Sehgal vrs- Raje Ram Sheoram, AIR 1991 SC 1406, Tribhorandas Haribhai Tamboli vrs- Gujrat Revenue Tribunal and others, AIR 1991 SC 1538, S.Sundaram Pillai vrs- V.R.Pattabhiraman, AIR 1985 SC 582.
In the case at hand, none of the candidates or their representatives challenged the validity of the Nomination Papers of Sri Ranendra Pratap Swain. Suo motu objection was raised by the Returning Officer himself only. P.W.3 filed an application to grant time to rebut the objection. As per the decision, in the case of Rakesh Kumar, the Returning Officer ought have granted time to rebut the objection, eve in absence of any application to that effect. So, the decisions cited on behalf of the respondent are not applicable to the present case. I have already held that Sri Ranendra Pratap Swain had filed the original Form-A and Form-B duly signed in ink by the authorized person. Again, he was highly prejudiced as he was not given time to rebut the objection. So, it is held that the Returning Officer improperly rejected the nomination of Sri Ranendra Pratap Swain and accordingly issue Nos. 3 and 5 are answered in affirmative.
20. Issue No.2. Section 82 of the Representation of the People Act, 1951 which deals with the parties to an election petition reads as follows:
"82. Parties of the petition- A petitioner shall join as respondents to his petition- (a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition." Section 82 Clause (a) as quoted above requires the election petitioner to join as respondents in his petition, all the contesting candidates, where in addition to claiming a declaration that the election of all or any of the returned candidates is void, he claims further declaration that he himself or any other candidate has been duly elected. But in absence of such further prayer, he had to join the returned candidate/candidates only. In the present case, the election petitioners do not claim a declaration that Sri Ranendra Pratap Swain or any body else has been duly elected. So, the election petitioners have rightly impleaded the returned candidate alone as respondent. Accordingly, the issue is answered in favour of the election petitioner.
21. Issue Nos.1 and 4 In view of the discussion made above, the election petitions are maintainable.
In the result, both the election petitions are allowed. It is declared that the election of respondent No.1 is null and void and that a casual vacancy is created relating to 89-Athagarh Assembly Constitution thereby. The appropriate authorities are directed to conduct fresh election in respect of the said Constituency in accordance with law. No cost.
List of witnesses examined on behalf of the petitioner P.W.1 Rabindra Rout P.W.2 Ranendra Pratap Swain P.W.3 Taranikanta Biswal List of witnesses examined on behalf of the respondent O.P.W.1 Ramesh Rout O.P.W.2 Maguni Charan Rout O.P.W.3 Dibakar Sahoo O.P.W.4 Rabindra Kumar Jena Court Witness Sri Rajesh Pravakar Patil List of Exhibits filed on behalf of the petitioner Exhibit-1 Election photo identity card of Sri Rabindranath Rout Exhibit-2 Certified copy of the application filed by P.W.1 Rabindranatah Rout dated 02.04.2009 before the Returning Officer 89-Athagarh Assembly Constituency-cum-Sub Collector, Athagarh Sub- Division for supply of nomination papers for the General Assembly Election-2009 together with acknowledgement receipt. Exhibit-3 Certified copy of the receipt bearing No.775152 dated 02.04.2009 showing security deposit of Rs.5000/-. Exhibit-4 Certified copies of first set of Nomination paper duly filled in and signed by the proposer Rabindranath Rout as well as the Election Petitioner Ranendra Pratap Swain together with accompanying documents. Exhibit-5 Certified copies of second set of Nomination paper duly filled in and signed by the proposer as well as the election petitioner- Ranendra Pratap Swain together with accompanying documents. Exhibit-6 Certified copies of third set of Nomination paper duly filled in and signed by the proposer as well as the election petitioner together with accompanying documents. Exhibit-7 Certified copies of fourth set of Nomination papers duly filled in and signed by the proposer as well as the election petitioner together with accompanying documents. Exhibit-8 Original "certificate for receipt of oath" in prescribed form. Exhibit-9 Original "certificate for receipt of Nomination paper and notice of scrutiny" granted by Returning Officer from Part-VI of the Nomination form. Exhibit-10 Copy of the circular number 57613/2009/SDR dated 10.2.2009 issued by the Election Commission of India. Exhibit-11 Original "Check List" granted by the Returning Officer of 89-Athagarh Constituency on 4.4.2009 showing receipt of documents. Exhibit-12 Certified copies of Form 3A relating to "Notice of Nominations" in respect of 87-Baramba Assembly Constituency from dated 28.3.2009 to 4.4.2009. Exhibit-13 Certified copies of Form 3A relating to "Notice of Nomination" in respect of 89- Athagarh Assembly Constituency from dated 28.3.2009 to 4.4.2009. Exhibit-14 Certified copy of the forwarding letter sent by the Returning Officer to the Chief Electoral Officer, Orissa with copy to District Election Officer, Cuttack and to the Director of Printing, Stationary and Publication, Orissa, Cuttack-10 in respect of Consolidated "List of nominated candidatesChecks if" for 87-Baramba Assembly Constituency. Exhibit-15 Certified copy of forwarding letter sent by the Returning Officer to the Chief Electoral Officer, Orissa with copy to the District Election Officer, Cuttack and to the Director of Printing, Stationary and Publication, Orissa, Cuttack-10 in respect of Consolidated "List of Nominated candidates-Check if" together with the certified copies of the Consolidated "List of Nominated candidates-Check if" for 89-Athagarh Assembly Constituency. Exhibit-16 Certified copy of the authorization letter of the Election petitioner, Sri Ranendra Pratap Swain in favour of Sri Tarani Kanta Biswal to attend the scrutiny of his behalf. Exhibit 17 Certified copy of the "Time petition to rebut the objection" filed by Sri Tarani Kanta Biswal, Authorized Agent of the election petitioner, before the Returning officer and the order passed by the Returning Officer in the body of the same time petition. Exhibit-18 First set of Nomination papers filed by the election petitioner before the Returning officer. Exhibit- 19 Second set of Nomination papers filed by the Election petitioner before the R.O. Exhibit-20 Third set of Nomination papers filed by the petitioner before the R.O. Exhibit-21 Fourth set of Nomination papers filed by the petitioner before the R.O. Exhibit-22 Check List prepared by the Returning officer in the presence of petitioner. Exhibit-23 Form 'A' filed by Sri Surendra Kumar Nanda Exhibit-24 Form 'B' filed by Sri Surendra Kumar Nanda Exhibit-25 Check list of Sri Surendra Kumar Nanda Exhibit-26 Form 'A' filed by Sri Debi Prasad Mishra Exhibit-27 Form "B" filed by Sri Debi Prasad Mishra Exhibit-28 Check list of Sri Debi Prasad Mishra Exhibit-29 Form 'A' filed by Sri Bhaskar Dalei Exhibit-30 Form 'B' filed by Sri Bhaskar Dalei Exhibit-31 Check List of Sri Bhaskar Dalei Exhibit-32 Form 'A' filed by Sri Saroj Kumar Rana Exhibit-33 Form 'B' filed by Sri Saroj Kumar Rana Exhibit-34 Check List of Sri Saroj Kumar Rana Exhibit-35 Form 'A' filed by Sri Subash Mohanty Exhibit-36 Form 'B' filed by Sri Subash Mohanty Exhibit-37 Check List of Sri Subash Mohanty Exhibit-38 Form 'A' filed by Sri Rama Narayan Mohanty Exhibit-39 Form 'B' filed by Sri Rama Narayan Mohanty Exhibit-40 Check list of Sri Rama Narayan Mohanty Exhibit-41 Form 3A dated 29.3.2009 of 87-Baramba Exhibit-41/a Form 3A dated 29.3.2009 of 87-Baramba Exhibit-41/b Form 3A dated 30.3.2009 of 87-Baramba Exhibit-41/c Form 3A dated 31.3.2009 of 87-Baramba Exhibit-41/d Form 3A dated 02.04.2009 of 87-Baramba Exhibit-41/e Form 3A dated 03.04.2009 of 87-Baramba Exhibit-41/f Form 3A dated 04.04.2009 of 87-Baramba Exhibit-42 Form 3A dated 28.03.2009 of 89-Athagarh Exhibit-42/a Form 3A dated 29.03.2009 of 89-Athagarh Exhibit-42/b Form 3A dated 30.03.2009 of 89-Athagarh Exhibit-42/c Form 3A dated 31.03.2009 of 89-Athagarh Exhibit-42/d Form 3A dated 02.04.2009 of 89-Athagarh Exhibit-42/e Form 3A dated 03.04.2009 of 89-Athagarh Exhibit-42/f Form 3A dated 04.04.2009 of 89-Athagarh Exhibit-43 Letter of Sub-Collector Athagarh to the Chief Electoral Officer, Orissa Exhibit-43/a List of nominated candidates of 87, Baramba Exhibit-44 List of nominated candidates of 89-Athagarh Exhibit-45 xerox copies of Form 2-B Exhibit-46 Authorization letter of Sri Ranendra Pratap Swain Exhibit-47 Time petition of Sri Tarani Kanta Biswal Exhibit-48 Certified copy of order rejecting the nomination paper of the petitioner, Ranendra Pratap Swain Exhibit-48/a Certified copy of order rejecting the nomination paper of the petitioner, Ranendra Pratap Swain Exhibit-48/b Certified copy of order rejecting the nomination paper of the petitioner, Ranendra Pratap Swain Exhibit-48/c Certified copy of order rejecting the nomination paper of the petitioner, Ranendra Pratap Swain Exhibit-49 Appeal Petition of the petitioner to the Hon'ble C.E.O. in original Exhibit-50 Appeal Petition of the petitioner to the Hon'ble C.E.O. in original Exhibit-51 Authorization to attend scrutiny of nomination filed by Respondent-1 Exhibit-52 Certified copy of letter No.1548 dated 6.3.2009 of Sub- Collector, Athagarh. Exhibit-53 Check List in original of Sri Anukul Chandra Sahoo Exhibit-54 Check List in original of Sri Bijay Kumar Biswal Exhibit-55 Check List in duplicate of Janaki Rout Exhibit-56 Money receipt showing payment to Anand Xerox Exhibit-57 Requisition letter (Xerox copy obtained under the R.T.I. Act) List of M.Os M.O.I - Videograph M.O.II- Videograph Election Petitions allowed.