Bharat Prasad Sharma, J.

1. This Election Petition has

been presented and filed on behalf of Sri

Rama Nand Prasad Singh against Sri Vidya Sagar Nishad, the candidate who was declared elected in the Bihar Legislative Assembly in the election held in 1995 from 181-Parbatta Assembly Constituency. The petitioner also happened to be a candidate in the said election and he was defeated and was in the 3rd position. The petition has been filed under Sections 80, 80(A) and 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the 'R. P. Act') The petition has been filed praying for setting aside the election of the sole respondent in the aforesaid election on the ground that the nomination papers of two of the candidates were accepted, though the same were fit to be rejected. It is stated in the petition that the Returning Officer for the aforesaid election was the Sub-Divisional Officer of

Gogari Sub-Division in the district of Khagaria and the election was held on the basis of a Notification issued by the Governor of Bihar for electing the members of the Legislative Assembly to constitute the 11th

Assembly. According to the schedule of the Programme in the Notification, the dates were as follows:--

i) The last date for filing of Nomination paper -- 23rd of January, 1995.

ii) The date of Scrutiny of the Nomination paper -- 24th of January, 1995.

iii) The last date for withdrawal of candidature -- 27th of January, 1995.

iv) Date of polling --21st of March. 1995. v) Date of counting of Ballot papers --29th March, 1995 to 1st April, 1995. vi) Date of declaration of final result. The 1st of April. 1995.

There were altogether thirty nominations accepted by the Returning Officer after due scrutiny. However, on the date of scrutiny, i.e., 24th of January, 1995, the nomination papers of Balram Mandal were accepted by the R. O. ignoring the fact that said Balram Mandal on that date was disqualified for being a candidate, he being a government servant. According to the petitioner he was a panchayat Sewak under the Government of Bihar and, therefore, his nomination was fit to be accepted, as per the provisions of Article 191 of the Constitution. It is further stated that one Parmanand Choudhary had filed nomination as a nominee and the said Sri Parmanand Choudhary happens to be a voter of Chaulham Assembly Constituency.

According to Section 33(5) of the Act, where a candidate is an electorate of a different constituency, a copy of the electoral role of that constituency or the relevant part thereof or a certified copy of the relevant extract of such roll has to be filed along with his nomination papers, but Sri Parmanand Choudhary filed the photo-stat copy of the electoral roll along with his nomination papers. Therefore, the above named candidate Sri Parma Nand Choudhary did not comply with the mandatory provisions of Section 33(5) of the R. P. Act. It is also further stated that in his nomination papers, Sri Parma Nand Choudhary mentioned the serial Number and part number of the electoral roll in support of the fact that he was a voter of Chautham Assembly Constituency. On the date of scrutiny, i.e., 24th of January, 1995. the R. O. did not find the name of Sri Parma Nand Choudhary in the part and serial number of the electoral roll which were mentioned in the nomination papers and as required under Section 36(6) of the Act, the R. O. passed an order on the nomination papers as Aswkrit, meaning thereby -- Rejected. It has been stated that under Section 36(6) of the R. P. Act, the R. O. In his capacity as the R. O. performs quashi judicial function while scrutinising the nomination papers and, therefore, after passing the order either of rejection or of acceptance, he ceases to have any power to review the order, but the said R. O. penned through the word --'Aswikrit' subsequently and accepted the nomination papers of Sri Parma Nand Choudhary in spite of objection on the part of other candidates. It is, therefore asserted that the subsequent acceptance of the nomination papers of Sri Parma Nand Choudhary was improper and illegal. It is further stated that in the election, Sri Parmanand Choudhary received 22,839 votes and the sole respondent received 35,726 votes. It is stated that because of improper acceptance of nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal, the election of the petitioner has been materially affected and, therefore, the election is void, illegal and fit to be quashed. It is further stated that the petitioner filed requisition for obtaining the certified copies of the nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal but the R. O. refused to accept the same and, accordingly, the prayer has been made to set aside the election of the sole respondent who has been

illegally declared elected from 181 Parbatta Assembly Constituency in the 11th Assembly of the Bihar State.

2. In pursuance of the notice issued to him, the respondent appeared and filed a written statement. In his written statement, inter alia, the respondent pleaded that the election petition was not maintainable, as it suffered from serious defects on account of non-compliance of the provisions of law, especially the provisions of Sections 81, 82, 83 and 117 of the R, P. Act. It was also, further stated that the petitioner failed to state the necessary material facts, in support of the allegation made out in the election petition. Therefore, the petition is fit to be dismissed. Several technical defects were pointed out on behalf of respondent in the written statement, so far as the election petition is concerned. The respondent also denied the allegation in the election petition parawlse and stated that at the time when the nomination papers of Sri Balram Mandal were accepted during scrutiny, there was no objection by any body regarding its maintainability and no one pointed out that Sri Mandal was not qualified to contest the election and, therefore, it has been stated that the aforesaid statement has been fabricated as an afterthought, only with a view to get the election of the respondent set aside. It has also been stated that only allegations have been made which amounts to bald assertions and the necessary details of the material facts have not been provided by the election petitioner in the Election Petition. It has been stated that actually there has been no cause of action in this case and the petition is not fit to be maintained. It is also further stated that the nomination papers filed on behalf of Sri Rama Nand Choudhary were properly filed and the necessary copies of the electoral role of Chaudham Constituency in which said Sri Rama Nand Choudhary happens to be a voter, was filed with the nomination papers. It is also further stated that the nomination papers of Sri Parma Nand Choudhary were rightly accepted, after hearing and deciding the objections in this regard and, therefore, there was no illegality in it. It is stated that as is the usual practice and is permissible in law, four sets of nomination papers were filed on behalf of Sri Parma Nand Choudhary and it is not a fact that after rejecting the nomination papers, the R. O. had illegally accepted the nomination papers at a later stage. It is

asserted that the nomination papers of Sri Parma Nand Choudhary were thoroughly scrutinised in the light of the objection made and the R. O. was satisfied about the correctness of the nomination papers and the same was duly accepted. In fact, Sri Parma Nand Choudhary was duly recorded as a voter in the electoral roll of Chautham Assembly Constituency and the relevant portion of the electoral roll was filed along with the nomination papers, However, there was some clerical errors in part of the electoral roll and by mistake the house number was mentioned as part of the electoral roll and, therefore, confusion had occurred which was subsequently explained properly before the R. O. and, therefore, the nomination papers were accepted. It has therefore, been stated that the respondent has properly and duly been elected. So far as the possibility of the petitioner getting larger number of votes in absence of candidatures of Sri Parma Nand Choudhary and Sri Balram Mandal is concerned, it has been stated on behalf of the respondents that the respondent happened to be a popular leader in the State and, especially in his constituency, and even in absence of candidature of Sri Parma Nand Choudhary who was a Congress Candidates votes polled in his favour could not have gone in favour of the petitioner and certainly the same would have gone in favour of the respondent who had wide support from all Sections of the Society in his constituency. It is stated that as both, the Congress (I) and the Janta Dal had image of secular party, votes polled in favour of Congress (I) candidate, would never have gone to B. J. P. candidate. In this view of the matter, it has been stated on behalf of respondents that the allegations in the election petition are vague and absurd and the same are fit to be rejected and the petition is fit to be dismissed with cost.

3. After the parties filed their pleadings, counsel for the parties were heard and on 29th March, 1996, three issues were settled by the Court for determination. The issues are as follows :

i) Whether the Returning Officer of 181 Parbatta Assembly Constituency had improperly accepted the nomination papers of Sri Parma Nand Choudhary and Sri Balram Mandal?

ii) Whether the improper acceptance of nomination papers of Sri Parma Nand

Choudhary and Sri Balram Mandal has materially affected the election result?

iii) Whether the election of sole respondent Sri Vidya Sagar Nishad is liable to be set aside?

It appears that at a later stage, it was submitted on behalf of respondent that some further issues were required to be settled and, accordingly, two issues were settled by order dated 13th August, 1996. These issues are as under :

i) is the Election Petition maintainable?

ii) is the election petition liable to be rejected due to non-compliance of the provisions of Sections 81 and 82 of the R. P. Act?

Counsel for the respondents thereafter prayed for hearing on a petition filed under Order 7, Rule 11 and Order 6, Rule 16 of the Code of Civil Procedure read with Sections 86 and 87 of the R. P. Act. The court, accordingly, heard the counsel for the parties and passed order on 16th of December, 1997 by which the Court decided the two issues subsequently framed regarding the maintainability of the petition and it was held that there was no question of the petition being fit to be dismissed and the election petition was maintainable. Therefore, only three issues remained to be decided.

4. In support of their respective claims, both the parties have examined witnesses and produced and proved some documents, The petitioner has examined altogether five witnesses in support of his case. Out of them, P. W. 1 Rama Nand Prasad Singh is the petitioner himself. He has supported the statements made in his petition and has stated that he was won over by Sri Parma Nand Choudhary by a margin of 12,000 votes and the petitioner had received about 20,000 votes and was placed in the 3rd position and, therefore, the margin was such that had the candidature of Sri Parma Nand Choudhary and Sri Balram Mandal been refused, there was no likelihood of the respondent winning the election P. W. 2 Suresh Chandra Ram happens to be one of the proposers of the name of Sri Parma Nand Choudhary during the election and he has stated that in course of scrutiny, nomination papers of Sri Choudhary were rejected, as part number of the electoral role in which his name appeared was incorrectly mentioned. But subsequently on the next day he learnt that the nomination papers of Sri

Choudhary were accepted. He also further stated that in the election, Sri Choudhary received 23,000 votes and the winning candidate received 35,000 votes. He further stated that had the nomination papers of Sri Choudhary been rejected, the votes cast in his favour would have gone in favour of the petitioner and, thus, acceptance of nominations of Sri Choudhary has materially affected the result of the election. P. W. 3 Janardan Choudhary also happens to be a voter of the constituency concerned and, according to him, votes of the constituency in question were divided between the two candidates i.e., Sri Parma Nand Choudhary of Congress (I) and Sri Rama Nand Prasad Singh, the petitioner. According to him had Sri Parma Nand Choudhary not been a candidate in the field, the people who voted for him, would have voted for Sri Rama Nand Singh, the petitioner. P. W. 4 Mahendra Narayan Choudhary has also stated that in the election, the respondent was a candidate of Janta Dal; while the petitioner was a candidate of B, J. P. and in course of campaigning for Sri Parma Nand Choudhary, the Congress (I) candidate, he was told by the voters that they were dividing the voters in the election. According to him, the voters considered that there should have been one candidate, either of the Congress or of the B. J. P. According to him, it was on account of the fact that such voters wanted to defeat the party of Sri Laloo Prasad Yadav. P. W. 5 Shiv Shankar Bhagat also happens to be a worker of the Congress Party and he was campaigning for Sri Parma Nand Choudhary in the election and he had accompanied him to different places during the campaign. According to him, the nomination papers of Sri Choudhary were also prepared in his presence and he had named two proposers, namely, Sri Suresh Ram and Sri Naresh Kumar. He was acquainted with the signature of Sri Parma Nand Choudhary and has proved the nomination papers, marked Exts-2 series. He has also further stated that in course of campaigning voters used to express their desire that it would have been better, if there was only one candidate, either Sri Parma Nand Choudhary or Sri Rama Nand Prasad Singh, in his opinion, had Parma Nand Choudhary not been a candidate in contest, there was likelihood of B. J. P. candidate getting their votes in the election. He has rather frankly stated that had Sri Parma Nand Choudhary not been a can-

didate, he would have voted for the petitioner and because both of them contested, the (sic) they were defeated.

5. On the other hand, the respondent examined as many as thirteen witnesses in support of his case. Out of them, D.W. 1 Nand Kishore Yadav happened to be a voter of Parbatta Assembly Constituency and be claims that he was working for Congress party during the election. According to him, the scrutiny of nomination papers had taken place on 24th January, 1995. He further stated that the petitioner had filed objection regarding the acceptance of nomination papers of Sri Parmanand Choudhary and thereafter it was considered on the next date and nomination paper was accepted. According to him, in absence of candidature of Sri Parma Nand Choudhary, the votes polled by him, would have been distributed among all the parties and, according to him, some of the votes would have gone in favour of the respondent also. He denied that all the votes polled by Sri Parma Nand Choudhary would have gone in favour of the petitioner in his absence. D.W. 2 Wakil Yadav was an independent candidate from the constituency in question in this election. According to him, there were altogether thirty candidates in the fray and, the important candidates in this election were -- Sri Parmanand Choudhary, Sri Rama Nand Singh, Sri Satish Singh, Sri Bisheshwar Chaurasia, Smt. Jayanti Devi and Sri Vidya Sagar Nishad. This witness had polled 2,246 votes in this election. According to him, Sri Parma Nand Choudhary was a Congress candidate, respondent Sri Vidya Sagar Nishad was the candidate of Janta Dal, Sri Satish Singh was the candidate of Samta Party. Smt. Jayanti Devi was a candidate of Samajvadi Party and Sri R. N. Stngh was a candidate of B.J.P. According to him, he had also filed his nomination on 23rd of January, 1995 and was present during scrutiny which took place on 24th January, 1995. According to him, on 24th January, 1995, there was no scrutiny of nomination papers of Sri Rarmanand Choudhary and there was no announcement that the nomination of Sri Rama Nand Choudhary was rejected. According to him, persons of all Sections were supporting the Congress-I candidate. He denies that in absence of candidature of Sri Parma Nand Choudhary, his votes would have gone to B.J.P. candidate. According to him, the candidates were campaigning in their constituency on the basis of principles of parties they represented their personal principles and not on caste basis. He also further stated that no candidate, either of Congress or of B.J.P. had won the election from this constituency. D.W. 3 Mani Bhushan Rai also claimed to be a worker of Congress party and in the election in question, the. candidate from his party was Sri Parma Nand Choudhary. According to him, in absence of candidature of Sri Parmanand Choudhary, all the votes cast in his favour would not have gone to B.J.P. candidate. According to him, actually the votes were not cast on the basis of caste and the Congress party had influence over all sections of the Society. D.W. 4 Sri Vidya Sagar Nishad is the respondent himself. According to him, he was a candidate in the election in the year 1995. He was a candidate from the Janta Dal. There were altogether thirty candidates in the fray. Sri Parma Nand Choudhary was a candidate of Congress-I. The petitioner was a candidate of B.J.P. Sri Bisheshwar Prasad was an independent candidate, Sri Sathish Prasad Singh was the candidate of Samata Party and such other persons were there. According to him, he won the election by a margin of 13000 votes over Sri Parma Nand Choudhary, Congress-I candidate and the petitioner was placed in the 3rd position. He further stated that he was present at the time of scrutiny on 24th of January 1995 in the Sub-Divisional Office of Gogari. He also found Sri Parma Nand Choudhary present there. He denies that the nomination papers of Sri Parma Nand Choudhary were rejected on that day, as there was no such announcement. He has further stated that in the election held in the year 1990 also, he was a candidate of the Janta Party and Sri Parma Nand Choudhary was the nearest defeated candidate, when he had won that election. He stated that Sri Parma Nand Choudhary, Congress-I candidate had received support from all Sections, including backward, forward and Muslims and he denies that in absence of candidature of Sri Parma Nand Choudhary the votes polled by him would have gone to the B.J.P. candidate. He further volunteered in this regard that, as a matter of fact, the votes cast in favour of Sri Perma Nanda Choudhary would have actually come to him because both, his party and the Congress Party, had similar policies. D.W. 5 Murli Manohar Prasad claims that he was working as a Journalist at the relevant

time of the election in question and he did not ever learn that the nomination paper of Sri Parma Nand Choudhary was rejected and thereafter it was improperly accepted. He also stated that in course of election campaign, many political leaders of importance had visited the constituency and held meetings and he had covered those meetings. However, he stated that at some places in the constituency, voters were divided on caste line, no doubt, but at other places they were divided on principles and, according to him, there was similarity between the J.D. candidate and the Congress candidate and the Congress candidate and the congress party had support from all the Sections of people in the constituency. Therefore, in his opinion, in absence of candidature of Congress candidate, the votes polled in his favour would have gone to J.D. candidate and not in favour of B.J.P. candidate. D.W. 6 Sachindna Narayan Singh also happens to be a congress worker. He has stated that in course of scrutiny, the nomination papers of Sri Parma Nand Choudhary were deferred to another date for consideration on account of objection and on the next date, his nomination papers were accepted. He also further stated that the Congress candidate had support of people from all sections of the Society and it would be incorrect to say that in absence of candidature of Sri Parma Nand Choudhary, the votes polled in his favour would have gone in favour of B.J.P. candidate; rather, according to him, majority of votes polled in his favour would have gone to Janta Dal and some in favour of Samata candidate. However, some of the votes might have gone to B.J.P. candidate also. D.W. 7 Binod Kumar Mandai was a voter in the Constituency concerned. According to him, the parties were making campaign for their respective candidates. There were altogether thirty candidates in the filed, including several independent candidates. According to him, during this election, the main contest was between J.D. candidate, i.e., the respondent and the Congress candidate, i.e. Sri Perma Nand Choudhary and, according to him, the position of the B.J.P. candidate, i.e. the petitioner was weak. He has disagreed that in absence of Congress candidate, the votes polled by him would have gone in favour of the petitioner. D.W. 8 Noor Alam also happens to be a voter of the constituency and, according to him, many persons of his community were supporting

the congress Party and many of them were supporting the J.P. They were not supporting the B.J.P. D.W. 9 Abu Mohamad Ansari has also made similar statement. D.W. 10 Bindalal Paswan has stated that he was also a voter in the constituency in question and according to his estimate, the Congress candidate got votes from the communities like Brahmin and 60% of Rajpoots, 25% of Harijan and 10% of backward caste votes, whereas Janta Dal candidate had received 65% Harijan votes, 75% Muslim votes, 95% of Yadav votes and 10-20% of higher caste votes. On the other hand, B.J.P. candidate had received 80% of Bhumihar votes, 70% of Bania votes and only negligible votes of others. According to him, in absence of Congress candidate, 65% of the votes polled in his favour, could have gone to the Janta Dal and the rest 35% would have been distributed among other parties. D.W. 11 Janak Sahni was also a voter of the same constituency and, according to him, there were altogether thirty candidates in the fray, including the candidates of National Party, -- like Congress, Janta Dal and B.J.P. and Samta Parry. According to him, all the candidates of ail the parties were demanding votes from all Sections of the Society and the Congress Party being the oldest party had support from all Sections of the Society, According to him, the B.J.P. candidate was getting support from only higher caste votes, especially, the Bhumihar and Bania and the Janta Dal candidate was getting support from the Yadavas, other backwards, Muslims and some persons of upper caste also. According to him, in absence of candidature of Congress-I candidate, votes polled by him in majority would have gone to J.D. and the rest of the votes would have been divided between different parties. D.W. 12 Baldeo Prasad is also a voter of Parbatta Constituency. He has stated that in course of campaign, he used to talk to different candidates and, according to him, the Congress candidate was getting support from the Muslims, Harijans and upper caste people and B.J.P. was from getting support from business community. On the other hand, Janta Dal was supported by all Sections of the Society. According to him, it is incorrect to say that in absence of Congress candidate, all the votes polled by him, would have gone to B.J.P. According to him, in absence of Congress candidate, 50% votes polled by him. would have gone to the Janta Dal and the

rest would have been divided between different parties. D.W. 13 Nirmal Bhuiyan, they then S.D.O. of Gogari happened to be the R.O. of this constituency at the relevant time. According to him, he was the Returning Officer of two constituencies, i.e. 181-Parbatta Assembly Constituency and 182-Chautham Constituency. He had proceeded according to the Notification. According to him, on 24th January 1995, he held scrutiny of the nomination papers of both the constituencies and on account of some objection, he had heard the parties and decided the matter on 25th of January 1995. According to him, so far as other nomination papers were concerned, the same were cleared on 24th of January 1995 itself but there was some objection regarding nomination papers of Sri Parma Nand Choudhary and, he adjourned the matter and after hearing passed the order accepting the nomination of Sri Choudhary. According to him, generally the nomination papers were filed in four sets and he used to scrutinise all the four sets one by one and used to record his findings regarding his acceptance or rejection of the nomination papers on all the four sets separately. According to him, the objection was mainly considered on the basis of name of the candidate in the Electoral Role of the Constituency, part number of the Electoral Role which was quoted by the candidate was not tallying with the electoral role but the serial Number was correct. Therefore, in course of hearing, it transpired that part number mentioned in the nomination paper of Sri Parma Nand Choudhary tallied with the House Number and in course of hearing on 25th of January 1995, he could locate the name of Sri Parma Nand Choudhary in the Electoral Role of Chautham Constituency of which the copy was also furnished by the candidate. According to him, as the mistake was of clerical nature, therefore, he accepted the nomination papers. He has also proved the copy of the electoral role filed on behalf of Sri Parma Nanda Choudhary, which is Ext-A. He also filed and proved the entire order-sheet of the election process maintained in his Office (Ext-B) and so far as the decision on the nomination papers is concerned, a separate order-sheet was maintained which has been proved by him and is marked Ext-B/1. The witness has stated that on 24th January 1995, he had looked into two sets of nomination papers of Sri Parma Nand Choudhary

and because he wanted some clarifications, he did not pass any order but on 25th of January, 1995, he recorded his order of acceptance on all the four sets of nomination papers of Sri Parma Nand Choudhary. He proved his endorsement marked Ext-C Series. According to him, there was no illegality committed during the election process.

6. In the regard, before proceeding to decide the matter in question, it is proper to note that so far as the provisions of scrutiny is concerned, it is laid down is Section 36 of the R.P. Act which is as under :

36. Scrutiny of nominations--(1) on the date fixed for scrutiny of nominations under Section 30, the candidates, their election agents, one proposer of each candidate and one other person duly authorised 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 on such objection or on his own motion, after such summary enquiry, if any, as he think necessary, reject any nomination on any of the following grounds :

(a) that on the date fixed for the scrutiny of nominations, the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely : Articles 84, 102, 173 and 191.

(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer on the nomination papers is not genuine.

(3) Nothing contained in Clause (b) or Clause (c) of Sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of nomination papers, if the candidate has been duly nominated by means of any nomination paper in respect of which no irregularity has been committed,

(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

(5) The Returning Officer shall hold the scrutiny of the date in this behalf under clause (b) of Section 30 and shall not allow any adjournment of the proceedings, except when such proceedings are interrupted or obstructed by riot or open violence or by cause beyond his control :

Provided that in case an objection is raised by the returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force, or a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950).

(8) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidate, that is to say, candidates whose nominations have been found valid and affix it to his notice board.'

FINDINGS

Issue Nos. 1 & 2

7. As it is evident from the pleadings as well as the evidence, the main grievance of the petitioner appears to be that the nomination papers of Sri Parrna Nand Choudhary were Illegally and improperly accepted by the R.O. The grounds stated to be are that in spite of the defects in the nomination papers of Srt Choudhary, his nomination papers were accepted and in spite of the fact that on the first date of scrutiny, i.e. on 24th January 1995, the nomination papers were rejected, it was subsequently shown as accepted on the next date, i.e. on 25th of January, 1995. It has been pointed out that in his nomination papers, filed on behalf of Sri Parmanand Choudhary, part Number of the Electoral Roll in which the name of said Sri Parma Nand Choudhary was mentioned as a voter was wrongly mentioned in the nomination paper and the copy, as required under the law, was also not filed on his behalf. It has also been stated that on 24th of January, 1995, when the scrutiny was done, the nomination papers of Sri Choudhary were rejected on account of the defect, as pointed out above but subsequently on 25th January 1995, the nomination papers were accepted and it has been stated that because the R,O. who was acting in his quasi judicial capacity, had no power of review, the order of acceptance of the nomination papers was illegal. In this regard, being conscious of the legal position, that simply because the nomination paper is illegally accepted, the election cannot be set aside unless it is shown that the illegal acceptance of nomination paper of a particular candidate has resulted in materially affecting the result of the election, it has been alleged and asserted on behalf of the petitioner that the result of the election was materially affected because of this improper acceptance of nomination papers of Sri Parma Nand Choudhary, because had Sri Choudhary been not in the fray, the votes polled by him would have been cast in favour of the petitioner and in that case there was no likelihood of the respondent winning the election. As it has been shown earlier, witnesses have been examined on this point on behalf ol'both the parties. Whereas the witnesses including the petitioner himself have stated that the nomination papers of Sri Parma Nand Choudhary were earlier rejected on 24th of January 1995, but were accepted on 25th of January 1995, the result of the election has been materially affected because in absence of candidature of Sri Parma Nand Choudhary, the resultwould have been otherwise. On the other hand, the respondent himself and his witness have stated that actually there was no rejection of the nomination papers on 24th January 1995 and as objection was raised regarding his nomination papers, the R.O. fixed 25th of January 1995 as the date for hearing the parties on the point of objection and to decide the matter and, accordingly, on 25th of January, 1995, the R.O., after hearing the

parties and after recording, his reasons in detail, accepted the nomination papers of Sri Parma Nand Choudhary. It has also been stated by the respondents and his witnesses that even if Sri Parmanand Choudhary was not allowed to contest, the voters who have voted in his favour, were not likely to vote for the petitioner and the votes would have been divided between different parties, including respondent No. 1.

8. So far as the acceptance of the nomination papers of Sri Parma Nand Choudhary, Congress-I candidate is concerned, it appears that four sets of nomination papers were filed on his behalf. These nomination papers have been called for and proved as Exts-2 Series. The signature of Parma Nand Choudhary, the candidate are Exts-1 series. In the columns meant for the part of the electoral roles 206 has been mentioned in the nomination paper but, in fact, it was incorrect. In this connection, it has been stated on behalf of the respondent that actually by mistake 206 was mentioned in the Columns meant for part of the electoral role, though it was the House number in the electoral role and, according to the respondent, it was a clerical mistake. It also appears that some endorsement was made on the back of the nomination paper (Ext-2) which was subsequently penned through and it was stated on 25th January, 1995 that the nomination paper was accepted after scrutiny on the basis of the order in scrutiny case No. 1 of 1995. The endorsement on the back of the nomination paper (Ext-2/A) is that the nomination paper has been accepted, as per the order in scrutiny Case No. 1 of 1995. So far as Ext-2/B is concerned, the same endorsement was made on the back of it, vide Ext-C/B. It appears that there has been some cutting in the endorsement made earlier and it has been stated that on the prayer of the candidate, the matter was deferred to 25th of January 1995 for hearing the parties and thereafter endorsement of acceptance was made on 25th of January 1995. The nomination paper Ext-2 series as well as the endorsement Ext-C/C shows that the nomination was accepted on 25th January, 1995, in this view of the matter, it has been stated on behalf of the petitioner that two sets of nomination papers were rejected on 24th of January, 1995, the same were accepted on 25th January, 1995. It appears to be true

and correct that after making an endorsement of rejection of these two sets of nomination papers, the same were shown to be accepted on 25th of January, 1995 which appears to be improper but so far the other two nomination papers are concerned, there was no endorsement on them on 24th of January, 1995 and the endorsement of acceptance has been made for the first time on 25th of January, 1995. It appears that there is no rule that if four sets of nomination papers are filed and if some of the nomination papers are rejected, the other sets of nomination papers shall also be deemed as rejected and if any of the four sets of nomination papers is found fit and proper to be accepted and is accepted, the nomination would not be deemed to be valid. Therefore, there does not appear to be any force in saying that since two sets of nomination papers were rejected on 24th of January 1995, the acceptance of the rest two nomination papers on 25th of January 1995 was Improper and illegal. The Court cannot refrain from observing in this regard that the R.O. has committed a mistake in pending though the endorsement made on 24th January, 1995 and then correcting it, but in spite of this fact, acceptance of the nomination paper cannot be said to be illegal.

9. In this regard it is significant to note that according to Chapter-VI of the Handbook of the instruction to the Returning Officer, issued by the Election Commission of India, the principles for guidelines have been laid down, According to para-4 of the Hand-book, the Returning Officer should take up the nomination papers one after another on the appointed day and scrutinise them. If more than one nomination paper have been presented by or on behalf of a candidate, the R.O. should take them up together and scrutinise them one after another. It is also further mentioned that incase there is any minor error in any one of the nomination papers of a candidate, in regard to particulars, such as part number, name, serial number etc. of the electoral roll, it can be made up with correct particulars given in another nomination paper of the same candidate. All the nomination papers presented before the R.O. must be scrutinised by him. It has also been further stated that merely because one or more nomination papers of a candidate have been found valid, it would not be correct or legal to pass over other nomination papers of that candidate

without scrutiny. In paragraph 5, it has been stated that even if no objection has been raised to a nomination paper, the R.O. has to satisfy himself that the nomination paper is valid in law. If any objection is raised to any nomination paper, the R.O. will have to hold a summary enquiry to decide the same and to treat the nomination paper to be either valid or invalid and he will also record his decision in each case giving brief reasons, particularly where an objection has been raised or where the R.O. rejects the nomination paper. The objector may be supplied with a certified copy of the decision accepting the nomination paper of a candidate after overruling the objections raised by him, if he applies for it. Further, in paragraph 6 it has been stated that there is a presumption that every nomination paper is valid, unless the contrary is prima facie obvious or 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. It should be remembered that whenever a candidate's nomination paper is improperly rejected and he is prevented thereby from contesting the election, there is legal presumption that the result of the election has been materially affected by such improper rejection and the election will, therefore, be set aside. There is no such legal presumption, necessarily in the converse case where a candidate's nomination has been improperly accepted. It is always safer, therefore, to be comparatively more liberal overlooking minor technical or clerical errors rather than the strict in scrutiny of the nomination papers, Further, in paragraph 7 it has been stated that while holding the scrutiny of nomination papers, the R.O. performs an important quasi judicial function and therefore, he has to discharge this duty with complete judicial detachment and in accordance with the highest judicial standard. The R.O. must not allow any personal or political predilections to interfere with the procedure that the R.O. follows or the decisions he takes in any case. Fairness, impartiality and equal dealing with all candidates are expected of him by law. The R.O. must also deport him self in such a manner that it would appear to all concerned that he is following this high code of Conduct. Even if a candidate or his agent is difficult or cantankerous, he must exercise courtesy and patience. But at the same time, he has to be firm so that his task must be accomplished

in a prompt, orderly and business-like manner.

10. While dealing with the grounds on which it is not proper to reject the nomination paper, it has been mentioned in paragraph 9(iv) of the Hand-book as under :

9.4 in the past, there were instances where Nomination papers were rejected on flimsy grounds, e.g., for mistakes made in the nomination paper retarding :

a) the year of election or

b) the exact names of the House of the legislature or the constituency,

c) the description of an electoral roll number or

d) the choice of symbols or

e) some discrepancy between the age, name or other particulars of the candidate or his proposer, as given in the nomination paper and in the electoral roll and so on.

Such unjustifiable and improper orders of rejection on technical grounds has led to a large number of election petitions and the eventual setting aside of numerous elections with consequent avoidable waste of time, money and labour for all concerned. Similar instances of improper rejections should not occur again and it is up to the Returning Officer to interpret the provisions of the law intelligently and with commonsense. Do not, therefore, reject any nomination paper for such technical or clerical errors or discrepancies. 'Most of them can and should be directed by you to be set right at the time of the presentation of the nomination paper. It would therefore, be very undesirable, if you fail at the proper stage to help a candidate by exercising your powers and discretion under the proviso to Section 33(4) and later at the time of scrutiny you reject his nomination paper on the ground of those very defects which could have been set right under that Section'.

11. In this regard it has been submitted on behalf of the respondent that even if it was shown that the error of clerical nature in mentioning the correct part number of the electoral roll which included the name of said Sri Parma Nand Choudhary as a voter was Incorrectly mentioned in the nomination paper, it was the duty of the Returning Officer at the time of receiving the nomination papers to get it corrected because a copy of the part of the voter list concerned was filed before him as admitted by the R.O.

(D.W. 13) in his evidence. He has stated in his evidence that part number of the a electoral roll quoted by the candidate was not tallying with the electoral roll. He further stated that the serial number was. however, correct. He further stated that it transpired that part number of the electoral roll tallied with the house number and on 25th of January, 1995, he located the name of said candidate Sri Parma Nand Choudhary in the electoral roll of Chautham Constituency. He has also produced the copy of the electoral full filled by Sri Choudhary. It appears that simply because of clerical error when the R.O. started scrutinising the nomination papers 'of Sri Choudhary, on this ground only that the part of the electoral roll was wrongly mentioned in the nomination paper, he proceeded to reject the nomination paper and it appears that while he made endorsement on one set the nomination paper, i.e., Ext-2 that it was rejected because of the mistake in mentioning the part number of the electoral roll and he was making an endorsement to the same effect on the 2nd set, i.e. Ext-2/B, on account of the objection by some candidates, he made an observation that the matter is deferred to 25th of January 1995 for hearing and decision in the matter. It is also clear that the other two sets of nomination papers, i.e. 2/A and 2/C were untouched on 24th of January 1995 and Scrutiny Case No. 1 of 1995 was decided accepting the nomination of Sri Choudhary. The R.O. however, made a mistake in getting the endorsement made on 24th January. 1995 on the two other nomi-nation papers panned through and by making another endorsement regarding acceptance. In any view of the matter, it is clear that at least two sets of nomination papers were subsequently found fit to be accepted and it appears from perusal of the instructions to the R.O. by the Election Commission, as discussed earlier, that the R.O. had exercised his discretion properly and accepted the nomination paper. Therefore, it cannot be said that the nomination papers of Sri Parma Nand Choudhary were wrongly accepted.

12. The next point for consideration is whether the evidence led on behalf of the petitioner is sufficient to show that the improper acceptance of the nomination papers of Sri Parma Nand Choudhary has resulted in materially affecting the result of the election. On behalf of the petitioner, it has been stated that had Sri Parmanand Choudhary

not been in the fray as a candidate, the voters who cast their votes in favour of Sri Parma Nand Choudhary would have cast their votes in favour of the petitioner. In this regard it has been stated on behalf of the petitioner by the petitioner and his witnesses that actually the voters in the constituency were divided in two groups, i.e. pro- LalooYadav Group and Anti-Laloo Yadav Group and since the Congress-1 party was not in alliance with the J.D. represented by the Sri Laloo Prasad Yadav, the then Chief Minister of Bihar, the persons who voted for Congress-I candidate were supposed to be in Anti-Laloo Yadav Group and, therefore, in absence of candidate for Congress-I, they would have voted for the next important candidate who was likely to give fight to the candidate of J.D., i.e. the respondent in this case. On the other hand, the witnesses on behalf of respondents have stated that it is not a fact that all those persons who voted for the Congress-I candidate Sri Parma Nand Choudhary, were actually opposed to the J .D. or that there was any polarization in the electorates in the election in question. It has been stated that actually all important National Parties were contesting the election of their own and the various Sections of voters were supporting all the candidates. However, it appears from the evidence of witnesses for the respondents also that the support of the Congress-1 as well as the B.J.P. candidate was mostly from the forward class and whereas the Congress-I candidate received votes from the Muslim voters also, B.J.P. did not get support from this Section. It also appears that the backwards were mostly supporters of J.D. whereas Harijan votes were divided between the Congress-I, B.J.P, and the J.D. candidates. Therefore, it is hypothetical to think that in absence of candidature of Congress-I candidate, Sri Parma Nand Choudhary, the entire votes cast in favour of this candidate, would have shifted to B.J.P. It does not appear to be correct. So far as Sri Parma Nand Choudhary is concerned, according to the respondent himself, who himself examined as D.W, 4, he earlier fought election from this constituency as J.D. candidate whereas Sri Parma Nand Choudhary had contested as Congress-I candidate and, he had defeated Sri Parma Nand Choudhary by some small margin. Therefore, it is obvious that the respondent had his own strong base in the constituency and Sri Parma Nand Choudhary

was also not an insignificant candidate. It would not be proper to conclude that the voters would have decided to vote for B.J.P. In absence of Congress-I candidate. In this regard, it has also been stated on behalf of respondent that the voters who liked secular image were voting for both, Congress-I and J.D. and such voters were never supposed to support a party like B.J.P. which had communal image. Some of the witnesses on behalf of the respondents have, however, admitted that part of the votes cast in favour of Congress-I candidate Sri Parma Nand Choudhary would have certainly gone to B.J.P. candidate also in his absence but it is difficult to accept that all the voters who voted for Sri Parma Nand Choudhary, Congress-I candidate, would have voted for B.J.P. candidate. The entire plea in this regard is purely hypothetical and is based on surmises only. Therefore, it has no significance.

13. At this stage it is Important to note that Section 100 of the R.P. Act itself deals with the grounds for declaring election to be void. According to Section 100. subject to the provisions of Sub-section (2), if the High Court is of the opinion that,

(d) that the result of the election in so far as it concerns a returned candidate has been materially affected -

(i) by the Improper acceptance or any nomination or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void.

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

the High Court shall declare the election of the returned candidate to be void.

It is, therefore, clear that declaring an election to be void and acceptance of nomination in improper manner, cannot be the only ground for setting aside the election. It can be done only if the result of the election has been materially affected.

14. The 1st case in this regard is the case decided by the Hon'ble Supreme Court in the case Vashist Narain v. Dev Chandra AIR 1954 SC 513. It has been observed in this

regard by their Lordships that the words the result of the election has been materially affected indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. It has further been observed by their Lordships that the language of Section 100(1)(c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. Where the finding of the Tribunal that the result of the election has been materially affected is speculated and conjectural, the Supreme Court will interfere with the finding in special appeal.

15. In another case Mahadeo v. Babu Udai Partap Singh, AIR 1966 SC 824 it has been observed by their Lordships that in regard to the category of improper rejection of nomination paper, the material effect of such improper rejection or acceptance of a nomination paper and for it has to be taken into account. They are,

a) if a nomination accepted was that of the returned candidate, the result must be materially affected;

b) if the difference between the number of votes is more than the wasted votes, the result cannot be affected at all;

c) if the number of wasted votes is grater than the margin of the votes between the returned candidate and the candidate securing the next higher votes, it cannot be presumed that the wasted votes might have gone to the latter and that the result of the election has been materially affected .'

Their Lordships further held that, 'This is a matter which has to be proved and though it must be recognised that the petitioner in such a case is confronted with a difficult situation, he cannot be relieved of the duty imposed upon him by Section 100(1)(c) and if the petitioner fails to adduce satisfactory evidence in support of his plea, the Tribunal would not interfere in his favour and would allow the election to stand.'

16. In the 3rd case Paokai Haokip v. Rishang, AIR 1969 SC 663 it has been

observed by their Lordships that the burden of proof in England is the exact reverse of the that laid down by the Indian Statute. There the returned candidate has to prove that the non-compliance or mistake did not affect the result of the election. In India the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected. In this view of the matter their Lordships have further held that in such cases, the Court has to see whether this burden has been successfully discharged by the election petitioner by demonstrating to the Court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations, including those at which it did not. Their Lordships have further observed in this connection that the casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of votes will go to one of the other of the candidates. The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. Though statistics can be called in aid to prove such facts, it is open to Court in reaching their conclusion to pay attention to the demonstrated pattern of voting and in this view it has been proved that the burden of proof in such cases is on the petitioner and he cannot take advantage of the weakness in the evidence of the respondent.

17. In another case Ram Awadesh Singh v. Sumitra Devi. AIR 1972 SC 580 it has been held by their Lordships that from a combined reading of Sections 33 and 36 it is clear that a mis-description as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.

18. In the case Brij Mohan v. Sat Pal, AIR 1985 SC 847 it has been observed by their Lordships as under (at pp. 853 and 854 of AIR) :

'It is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of the substantial character. They would not be

defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll. If that is not the case, he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency,'

19. The most important observations have been made by their Lordships in the case, Siv Charan Singh v. Chandra Bhan Singh, AIR 1988 SC 637. It has been observed as under (Para 9) :

'The election of a returned candidate cannot be declared void on the ground of improper acceptance of nomination papers of a contesting candidate unless it is established by positive and reliable evidence that improper acceptance of the nomination paper of a candidate materially affected the result of the election of the returned candidate. The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words, the result of the election of the candidate cannot be held to have been materially affected, unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes. In the absence of any such proof, the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden, howsoever difficult it may be, is discharged, the election cannot be declared void. The difficulty of proving the material effect could be resolved by the Legislature and not by the Courts.'

It has further been held by their Lordships that (Para 9),

'It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates. Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the Courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not Interfere with the election on speculation and conjectures.'

20. In the case of Kripa Shankar Chatterji v. Gurudas Chatterjee, AIR 1995 SC 2152, it has been held by their Lordships as follows (Para 5) :

'Coming to the question of improper acceptance of nomination papers of Sri Sanjib Baxi and Sri Shiv Lal Manjhi, the High Court has held that the election-petitioner did not file the certified copy of the voters' list of the constituency from which he was an elector. The Respondent No. 1 in his deposition has categorically stated that both Sri Baxi and Sri Manjhi were voters in the Nirsa Constituency. He has also stated that both Sri Baxi and Sri Manjhi had shown the relevant entry showing their names in the voters' list to the returning Officer at the time of scrutiny. It has been held by the learned Judge that there is no documentary evidence from the side of the petitioner to establish that the certified copies of the relevant entries in the voters list were not filed by the said candidates with their nomination papers or at the time of scrutiny. There is also no evidence that any objection against acceptance of nomination papers of the said candidates was raised by the election patitloner or by any other candidate at the time of scrutiny. The learned Judge has not placed reliance on the depositions of P.W. 2 Srilal because of contradictions in his statements in examination In-chief and cross-examination about examination of relevant entries in the voters' list at the time of acceptance of his nomination paper for Sindri constituency. The High Court has indicated that there is evidence on the side of the respondent No. 1 vide deposition of R.W. 1, R.W. 10, R.W. 14, and R.W. 15 that Sri Baxi and Sri Manjhi had produced and had shown the voters list to the Returning Officer. The learned Judge has also held that the presumption of proper performance of duties by Returning Officer in accepting nomination papers on scrutiny of relevant records has not been rebutted by any convincing evidence adduced by the election petitioner, it has also been held by the High Court that even if it is assumed that the said nomination papers were improperly accepted, in view of Section 100(b) of the Representation Act, unless the petitioner was able to establish that such improper acceptance of nomination papers had materially affected the election result, the same is not liable to be quashed. The High Court has come to the finding by indicating reasons that the election petitioner has failed to establish by any convincing evidence that in view of contest of the election by Sri Baxi and Sri Manjhi, the polling prospect of the election petitioner was materially affected. We agree with the said findings of the High Court. It may be indicated here that although an appeal lies to this Court from a decision of the High Court in an election petition filed under the Representation Act and although in such appeal, this Court can interfere with the findings of fact by making its own assessment of evidence, as a rule of prudence this Court has shown disinclination to interfere with the finding of fact unless it can be established by cogent, convincing and unimpeachable evidence that the finding of fact by the High Court is unjustified and against the weight of the evidence.'

21. Considering the decisions quoted above, it becomes clear that neither it was a case of acceptance of nomination papers of Sri Parmanand Choudhary by the Returning Officer Improperly and Illegally nor there is satisfactory evidence on behalf of the petitioner that the result of this improper acceptance of the nomination paper of Sri Parma Nand Choudhary materially affected the result of the case, because the entire evidence is based on hypothesis and conjectures. In such a case, it will not be proper to disturb the will of the people who voted for the respondent in the election in question. The two Issues are accordingly decided and are answered in the negative.

Issue No. 3

22. As it has been held that the result of the election in question has not been materially affected in this case, even though the plea of the petitioner is accepted that the acceptance of the nomination papers of Sri Parma Nand Choudhary was illegally accepted, the petitioner does not have any cause of action in this petition, The result of the election cannot be set aside and declared void. The petitioner, therefore, is not entitled to any relief claimed by him in the present petition.

23. Accordingly, this election petition is dismissed on contest with costs.