Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
CASE NO.:
Appeal (civil) 6521 of 2004
PETITIONER:
Anil Baluni
RESPONDENT:
Surendra Singh Negi
DATE OF JUDGMENT: 14/07/2005
BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
G.P. Mathur, J.
1. This appeal under Section 116-A of the Representation of the
People Act, 1951 (hereinafter referred to as the ’Act’) has been
preferred by a candidate against the judgment and order dated
3.9.2004 of the High Court of Uttaranchal by which the election
petition filed by him challenging the election of the respondent
Surendra Singh Negi was dismissed.
2. The Election Commission of India issued a notification calling
upon the electors of Uttaranchal to elect members of Uttaranchal
Vidhan Sabha including those from 29 Kotdwar Legislative Assembly
Constituency. According to the notification the schedule of the
election was as under: -
i) Last date for filing of nomination paper 23.1.2002
ii) Date of Scrutiny of nomination paper 24.1.2002
iii) Date for withdrawal of nomination 28.1.2002
iv) Date of poll, if any 14.2.2002
v) Date for counting of votes and
Declaration of result 24.2.2002
The appellant filed four sets of nomination papers, which were
rejected by the Returning Officer on the ground that Forms ’A’ and
’B’ were submitted by the appellant at 4.10 p.m. on 23.1.2002, i.e.,
after the time fixed for filing of the nomination papers. On account of
rejection of his nomination papers, the appellant could not contest the
election and the respondent Surendra Singh Negi was declared to have
been elected from the 29 Kotdwar Constituency.
3. The appellant then filed an Election Petition under Sections 80
and 81 of the Act challenging the election of the respondent Surendra
Singh Negi to the Uttaranchal Legislative Assembly from 29 Kotdwar
Legislative Assembly Constituency of District Pauri Garhwal. The
election petition was filed on the grounds inter alia that the appellant
was official candidate of Bhartiya Janata Party (for short ’BJP’) and
as the decision in that regard had been taken by the high command of
the party on 17.1.2002, he was handed over duly filled in Forms ’A’
and ’B’ as prescribed by the Election Symbols (Reservation and
Allotment) Order, 1968 (for short ’Symbols Order’). Form ’A’ was
issued by Shri Jana Krishnamurti, National President of BJP
authorizing Shri Puran Chandra Sharma, the President of Uttaranchal
State BJP to intimate the name of the candidate to be set up by the
Party. Form ’B’ was issued by Shri Puran Chand Sharma and was
addressed to the Returning Officer of 29 Kotdwar Assembly
Constituency notifying the appellant to be the official candidate of the
Party from the aforesaid Constituency in the said election. The
appellant in person filed four sets of nomination papers on 22.1.2002
as a candidate of BJP along with aforementioned Forms ’A’ and ’B’
issued under the Symbols Order before the Returning Officer of 29
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
Kotdwar Assembly Constituency. The nomination papers were duly
filled up and fully complied with all the requirements and formalities
prescribed by Section 33 of the Act and the Rules made thereunder.
Similarly Forms ’A’ and ’B’, which had been filed along with the
nomination papers were duly filled up and contained the requisite
signatures and thus complied with all the requirements of law. The
Returning Officer commenced the scrutiny of the nomination papers
in his office at about 11.30 A.M. on 24.1.2002 where the appellant
along with his proposer Shri Mohan Singh was present. The
appellant’s nomination papers, which had been placed at serial
numbers 18 to 21, were taken up for scrutiny at about 11.45 A.M.
The Returning Officer, after careful scrutiny of the nomination papers,
found them to be valid and after stating orally that the same were
valid he passed orders in Hindi on all the nomination papers to the
effect "after scrutiny found valid". After some time the appellant left
the office of the Returning Officer and proceeded to his Constituency,
which is approximately 100 kilometers from Pauri Garhwal where the
scrutiny had been done. While on way to Kotdwar the appellant
contacted his election office on phone and came to know that
subsequent to his leaving the office of the Returning Officer, his
nomination papers had been rejected. The appellant immediately
returned but by the time he reached the office of the Returning
Officer, it had been closed. The appellant then approached the
Observer appointed by the Election Commission on 24.1.2002 and
apprised him of the illegal and improper rejection of his nomination
papers. He also sent written complaints to the Chief Election
Commissioner and other authorities. It was specifically pleaded that
the Returning had made interpolations by adding the Hindi word "Aa"
before the word "vaidh". Subsequently on 25.1.2002 the appellant
received a communication dated 24.1.2002 from the Returning Officer
intimating him that his nomination papers, which had been filed on
22.1.2002 had been rejected on the ground that Forms ’A’ and ’B’
were filed at 4.10 P.M. on 23.1.2002. Certain other pleas were also
taken which are not very relevant for the decision of the appeal.
4. The respondent Surendra Singh Negi contested the election
petition by filing a written statement on the ground inter alia that the
appellant had filed his nomination papers before the Returning Officer
on 22.1.2002 but Forms ’A’ and ’B’ issued under the Symbols Order
were not submitted on the said date. He was informed by his party
workers and associates that the appellant had not submitted Forms ’A’
and ’B’ till 3.00 P.M. on 23.1.2002 and had submitted the same at
4.10 P.M. on the said date before the Assistant Returning Officer.
Since Forms ’A’ and ’B’ were not submitted by the appellant till 3.00
P.M. on 23.1.2002 his nomination papers were rejected by the
Returning Officer. Subsequently, the appellant tried to pressurize the
Returning Officer for declaring the nomination papers submitted by
him as valid. It was further pleaded that the respondent had polled
more than double number of votes than those secured by Shri
Bhuvnesh Khakral, who was a BJP supported candidate.
5. On the pleadings of the parties the High Court framed several
issues and issue Nos. 1 and 3, which are the principal issues, read as
under: -
"(1) Whether the nomination paper of the petitioner
was improperly rejected as alleged by the
petitioner? If so, its effect?
(3) Whether any manipulation in the nomination paper
of the petitioner has been made as alleged? If so,
its effect?"
After appraisal of oral and documentary evidence produced by the
parties the High Court held that no interpolation had been done in the
appellant’s nomination papers and consequently there was no merit in
the case set up by him. It was further held that as the Forms ’A’ and
’B’ of the Symbols Order had been submitted by the appellant at 4.10
P.M. on 23.1.2002, which was beyond the time prescribed by the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
relevant statutory provisions and the order of the Election
Commission, the same were rightly rejected. The election petition
was accordingly dismissed.
6. We have heard Shri Subodh Markandey, learned Senior
Advocate for the appellant and Shri V.A. Mohta, learned Senior
Advocate for the contesting respondent. Before examining the
contentions raised by the learned counsel for the parties it will be
convenient to set out the relevant statutory provisions. Para 13 of the
Symbols Order reads as under: -
"13. When a candidate shall be deemed to be set up by
a political party. \026 For the purpose of an election from
any parliamentary or assembly constituency to which this
Order applies, a candidate shall be deemed to be set up
by a political party in any such parliamentary or
assembly constituency, if and only if \026
(a) the candidate has made the prescribed declaration
to this effect in his nomination paper;
(b) a notice by the political party in writing, in Form
B, to that effect has, not later than 3 P.M. on the
last date of making nominations, been delivered to
the Returning Officer of the constituency;
(c) the said notice in Form B is signed by the
President, the Secretary or any other office-bearer
of the party, and the President, Secretary or such
other office-bearer sending the notice has been
authorized by the party to send the notice;
(d) the name and specimen signature of such
authorized person are communicated by the party,
in Form A, to the Returning Officer of the
constituency, and to the Chief Electoral Officer of
the State or Union Territory concerned, not later
than 3 p.m. on the last date for making
nominations; and
(e) Forms A and B are signed, in ink only, by the said
office-bearer or person authorized by the party:
Provided that no facsimile signature or signature
by means of rubber stamp etc. of any such office-bearer
or authorized person shall be accepted and no form
transmitted by fax shall be accepted."
7. The evidence adduced by the appellant may be noticed in brief.
The appellant Anil Kumar Baluni examined himself as PW-1 and
deposed that he was declared the official candidate of Bhartiya Janata
Party on 17.1.2002 and had been given Forms ’A’ and ’B’ by the
State President of the Party Shri Puran Chandra Sharma on 19.1.2002.
Thereafter, he had filed his nomination papers accompanied with
Forms ’A’ and ’B’ at 2.57 P.M. on 22.1.2002 in the Office of the
Collector at Pauri Garhwal. The scrutiny of the nomination papers
commenced at 11.30 A.M. on 24.1.2002 and after scrutiny the
Returning Officer had orally announced that all the four nomination
papers filed by him were valid and had also made an endorsement
thereon that the same were valid. After some time he left the office
for his constituency, which is about 100 kilometers from there. While
on the way he rang up his election office in Kotdwar and then came to
know that his nomination papers had been declared as invalid. He
immediately returned but by the time he reached the office of
Returning Officer, the same had been closed. He then met the
Observer in the Circuit House to whom he gave a written complaint
and also gave a written complaint to the Assistant Returning Officer.
PW-2 Mohan Singh Rawat, who was election agent of the appellant
Anil Kumar Baluni, has corroborated the version of the appellant and
has deposed that Forms ’A’ and ’B’ had been filed along with the
nomination papers of the appellant on 22.1.2002. He has further
deposed that after scrutiny the Returning Officer had orally
announced that the same were valid and had made an endorsement to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
that effect with his own hand. After some time they had left the office
for going to Kotdwar. PW-3 M.L. Sharma, Deputy Government
Examiner in the Forensic Science Laboratory of Government of India
at Shimla has proved his report. The report has considerable bearing
in the case and we will advert to it later on.
8. The respondent examined Anil Kumar Yadav, who was Deputy
Collector, Kotdwar, District Pauri Garhwal and had performed the
duties of Returning Officer of Kotdwar Assembly Constituency. He
has deposed that the appellant had filed four nomination papers on
22.1.2002, but Forms ’A’ and ’B’ had not been filed along with them
on that day. The Forms ’A’ and ’B’ were filed by the appellant at
4.10 P.M. on 23.1.2002 on which he had mentioned the time and date
of filing. He has further deposed that after scrutiny on 24.1.2002 he
passed the order whereby the nomination papers of the appellant were
declared to be invalid. Another witness examined by the respondent
is DW-2 Bhagwati Prasad Ghildiyal, who was Revenue Ahalmad in
the Office of Deputy Collector, Kotdwar. He deposed that the
appellant filed Forms ’A’ and ’B’ at 4.10 P.M. on 23.1.2002, which he
placed before the Returning Officer and had made an endorsement to
that effect. DW-3 Mahendra Prasad, SDM Lensdown has deposed
that he had performed the duties of Returning Officer of Lensdown
Assembly Constituency. On 23.1.2002 he had seen DW-1, Anil
Kumar Yadav in his office till about 5-5.30 P.M. and thereafter he had
left for Kotdwar as his wife was ill. The respondent did not appear in
the witness box nor examined anyone else, who may have actually
witnessed the filing of the nomination papers by the appellant.
9. There is no dispute that the appellant filed his nomination
papers on 22.1.2002. In their depositions the appellant Anil Baluni
and also his election agent Mohan Singh Rawat have categorically
stated that Forms ’A’ and ’B’ were filed along with the nomination
papers on 22.1.2002. The appellant has further deposed that he had
been declared as the official candidate by the party high command on
17.1.2002 and he had been given Forms ’A’ and ’B’ by the State
President Shri Puran Chandra Sharma on 19.1.2002. This part of the
statement of the appellant has not been shaken in any manner in his
cross-examination. Shri Mohta has submitted that one Shri Bhuvnesh
Kharkwal had also submitted his nomination paper as a candidate of
BJP and this shows that there was a dispute as to who would be the
official candidate of the said party and, therefore, Forms ’A’ and ’B’
had not been given to the appellant till 22.1.2002. It is not possible to
accept the contention as the specific statement of both PW-1 Anil
Baluni and PW-2 Mohan Singh Rawat is that the appellant had been
declared to be the official candidate of BJP on 17.1.2002 and Forms
’A’ and ’B’ had been given to the appellant on 19.1.2002. In fact
Form ’B’, which was issued in favour of the appellant also bears the
date 19.1.2002. The respondent has lead absolutely no evidence to
show that there was any doubt or dispute in the Party high command
regarding the candidature of the appellant on account of which the
Forms ’A’ and ’B’ could not have been given to the appellant on
19.1.2002 or till the time when he filed his nomination papers on
22.1.2002. In such circumstances it does not appeal to reason that
though he had been declared as the official candidate of the BJP and
had been given Forms ’A’ and ’B’ on 19.1.2002 yet he would not file
the same along with his nomination papers on 22.1.2002 and would
choose to file the same subsequently on 23.1.2002, which was the last
date.
10. Chapter V of Handbook for Returning Officers relates to
’NOMINATIONS’. Paragraphs 30.1 and 30.3 of said Chapter, which
are relevant for the purpose of present case, are being reproduced
below: -
"Preparation of consolidated list of nominated
candidates
30.1 Immediately after 3.00 p.m. on the last date for
making nominations, or as soon as possible after you
have received all the nomination papers from the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
specified Assistant Returning Officer(s) under para 28
above, you should prepare a consolidated list of all the
nomination papers, presented either before you or before
the specified Assistant Returning Officer(s). Such
consolidated list of nominated candidates shall be
prepared in the following form: -
LIST OF NOMINATED CANDIDATES
Name of the
State...................................................................................
Name of Parliamentary/Assembly
Constituency......................................................................
__________________________________________________________________
Sl. Name of Address of Symbols Name of Political Whether Whet
her main
No candidate candidate chosen in party (National)/ Forms ’A’ an
d candidate or
order of State or registered) ’B’ have been substitute
preference by which the received by 3.00 candidate of
by the candidate claims p.m. on the last the party (a
s
candidate to have been set date for making per party’s
up/Independent nominations in intimation in
candidate. respect of the Form B)
candidate
___________________________________________________________________________________
1 2 3 4 5 6 7
___________________________________________________________________________________
(i) Candidates of recognized National and State
Political Parties
(ii) Candidates of registered political parties (other
than recognized National and State Political
Parties).
(iii) Other candidates (Independent candidates)
Place...............................
Date................................ Returning Officer"
"30.3 Even if more than one candidate has claimed to be
set up by the same party, the names of all such candidates
should be included in the relevant category, i.e., category
(i) or (ii), as may be relevant. However, suitable remarks
should be given in respect of each such candidate in
columns 6 and 7 of the above list, taking into
consideration the intimation received, if any, from the
party concerned in the prescribed Forms A and B by 3.00
P.M. on the last date for making nominations. This will
facilitate your task at the time of scrutiny of nomination
papers of the concerned candidates."
Paragraph 30.6 of the Handbook enjoins that the list has to be
prepared in triplicate and copies thereof are to be sent to Election
Commission, Chief Electoral Officer and Manager of the State
Government Press forthwith. A certified copy of the consolidated list
of all the candidates of Kotdwar Assembly Constituency sent under
the signature of the Returning Officer Shri Anil Kumar Yadav to the
Election Commission of India in accordance with para 30.6 of the
Handbook, has been placed on record and has been marked as Ex.-5.
This list has been prepared strictly according to para 30.1 of the
Handbook and the name of the appellant Anil Baluni has been shown
under the heading "Candidates of Recognised National and State
Political Parties". Against the name of the appellant in column 5
"Bhartiya Janata Party" is written and in column 6 "Yes" word has
been written. Thus, in the list, which was sent to the Election
Commission on 23.1.2002 under the signature of the Returning
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
Officer, it was clearly mentioned against the name of the appellant
that Forms ’A’ and ’B’ have been received by 3.00 P.M. on the last
date for making nomination regarding his candidature. This
contemporaneous document, which had been prepared on 23.1.2002
itself fully establishes that the appellant had submitted Forms ’A’ and
’B’ by the prescribed time.
11. The specific case of the appellant is that at the time of the
scrutiny the Returning Officer had not only orally announced that his
nomination papers were valid but had also made an endorsement to
the same effect by his own hand and had signed the same. But,
subsequently interpolation has been done by which Hindi word ’Aa’
was added to the word ’vaidh’ making it ’avaidh’ and it was further
written that the Forms ’A’ and ’B’ had been filed at 4.10 P.M. on
23.1.2002 before the Assistant. Paragraphs 12.1 and 12.2 of Chapter
V of the Handbook read as under: -
"Time and place of filing Nomination Papers
12.1 Nomination papers may be presented either before
you or before any of your Assistant Returning Officers
specified by you in the public notice, on any of the
notified days at the place or places specified in the notice
at any time between 11.00 a.m. and 3.00 p.m. and not at
any other hours at any other place. If a candidate or his
proposer seeks to present a nomination paper either
before 11.00 a.m. or after 3.00 p.m., you should not
accept the nomination paper saying that under the
provisions of the law neither the candidate has the right
to deliver, nor the Returning Officer has the right to
accept, a nomination paper outside the hours prescribed
for the purpose. You may, however, point out that if he
so desires, he may present it within the prescribed hours
on the following day, provided it is one of the days
notified for presenting nomination papers.
12.2 It may so happen that some intending candidates
and/or their proposers are physically present in the
Returning Officer’s office at 3.00 p.m. for presenting
their nominations, but because of their large number and
because of the reason that nominations are to be received
one by one, it may not be possible for the Returning
Officer to physically receive all such nominations before
3.00 p.m. In such cases, the Returning Officer shall
accept nominations of all intending candidates who are
present in the office of the Returning Officer at 3.00 p.m.
for filing nomination and treat these nomination papers to
have been delivered within the prescribed time under the
law. For this purpose, if considered necessary, you may
close the entry to your office room exactly at 3.00 p.m.
and distribute slips to those present at that time."
Paragraph 29 of the Handbook clearly says that only such Forms ’A’
and ’B’, which are submitted by 3.00 p.m. on the last date for making
nomination, shall be accepted and not thereafter. DW-1, Anil Kumar
Yadav has deposed that the appellant submitted Forms ’A’ and ’B’
before his Revenue Assistant Shri Bhagwati Prasad Ghildiyal at 4.10
p.m. on 23.1.2002. He immediately came on the dias and after noting
the time and date of filing, put his signature thereon. It is not possible
to accept this statement of the witness in view of paras 12.1, 12.2 and
29 of the Handbook. The outer time limit for acceptance of
nomination papers and Forms ’A’ and ’B’ was 3.00 p.m. on 23.1.2002
and, therefore, the Returning Officer could not have received any such
Forms if the same were presented after 3.00 p.m. If the appellant had
really presented the aforesaid Forms at 4.10 p.m., the Returning
Officer should have declined to receive the same. The Handbook
does not lay down that the Returning Officer can physically receive
such documents even if they are presented after 3.00 p.m. on the last
date for making nominations and thereafter to mention the time and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
date of filing. In fact paras 12.1 and 12.2 clearly state that the
Returning Officer should not accept any document after 3.00 p.m. and
if the number of candidates is large, the entry to the office room
should be closed exactly at 3.00 p.m. The statement of the Returning
Officer that he accepted the Forms ’A’ and ’B’ submitted by the
appellant even though they were filed at 4.10 p.m. on 23.1.2002 and
then noted the time and date of their filing is not worthy of credence
on account of the clear prohibition contained in the Handbook not to
receive any such document after 3.00 p.m. This shows that Forms ’A’
and ’B’ had already been filed along with nomination papers before
the last date and time fixed for the purpose.
12. The specific case of the appellant is that at the time of the
scrutiny the Returning Officer, after examination of the Forms, orally
announced that his nomination papers were valid and then made an
endorsement to the same effect and put his signature thereon. The
appellant and also his witness PW-2 Mohan Singh Rawat have
deposed to that effect in their oral testimony. According to the
appellant after he and his election agent had left the office of the
Returning Officer interpolation was done and ’valid’ was made
’invalid’ by writing Hindi word ’Aa’ before the word ’vaidh’. The
nomination papers were sent to the Laboratory of the Government
Examiner of Questioned Documents, Shimla, of the Directorate of
Forensic Science, Ministry of Home Affairs, Government of India.
According to the report of the Laboratory the Hindi word ’vaidh’ was
originally written and the word ’Aa’ appears to have been added
subsequently to the word ’vaidh’ in a different operation of writing
making it to be read as ’avaidh’ in the first line of all the
endorsements. The report further says that apart from the letter ’Aa’
the further addition of the lines wherein it is written in Hindi that the
candidate has submitted Forms ’A’ and ’B’ on 23.1.2002 at 4.10 p.m.
before the Assistant was also subsequently written "for the manifest
reason that the shade and luster of ink of the letters of the
subsequently executed lines appear intense and different vis-‘-vis
those in the originally written first line and the signatures". In the
final conclusion the report says that the endorsement in each case
along with the signature was originally written as ’vaidh’, which was
subsequently altered by addition of letter ’Aa’ to the original word
’vaidh’ and also by addition of subsequent lines in different operation
of writing as are present in each of the endorsement marked Q1 to Q4
contained in part ’5’ of the nomination papers. The report has been
signed by two persons, viz., Shri Amar Singh, Government Examiner
of Questioned Documents and P.W. 3 Shri M.L. Sharma, Deputy
Government Examiner of Questioned Documents, who appeared as a
witness and proved the report. Shri M.L. Sharma is also an
experienced person having put in 33 years of service. The report is a
fairly long one and contains reasons for arriving at the conclusion that
the word ’Aa’ and the last two lines were written subsequently.
Nothing much was put to him in his cross-examination and there is
hardly any reason not to place reliance upon the said report. A look at
the enlarged photographs, which form part of the report of the
laboratory, with the help of a magnifying glass shows that horizontal
line above the Hindi word ’Aa’ is not only separate but is at some
distance from the horizontal line, which has been placed over the
word ’vaidh’. Had there been no interpolation, the horizontal line
over the word ’avaidh’ would have been drawn in one stroke. The
manner in which the sentence "Forms ’A’ and ’B’ have been
submitted at 4.10 p.m. on 23.1.2002 before the Assistant receiving the
nomination papers" has been written, creates a serious doubt that they
were originally not there but were written subsequently.
13. As mentioned earlier the list of nominated candidates (Ex.-5)
was sent to the Election Commission and Chief Electoral Officer
under the signature of the Returning Officer on the same day, i.e., on
23.1.2002 in accordance with paragraph 30.1 of the Handbook,
which clearly mentioned that Forms ’A’ and ’B’ of the appellant had
been received by 3.00 p.m. In his cross-examination Shri Anil Kumar
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
Yadav admitted that the entries made in Ex.-5 are correct. However,
he has given a very strange explanation to get over the obvious
contradiction between this list (Ex.-5) and the endorsement made by
him on the nomination papers of the appellant that Forms ’A’ and ’B’
were submitted at 4.10 p.m. on 23.1.2002. He himself volunteered
towards the end of his cross-examination and stated that he handed
over blank forms after putting his signatures thereon to his Revenue
Assistant Bhagwati Prasad Ghildiyal and left for Kotdwar as his wife
was ill and was admitted in a nursing home there and later on Shri
Ghildiyal filled in the forms and sent the same to the concerned
authorities. However, Bhagwati Prasad Ghildiyal has not deposed a
single word about making the relevant entries in the form or sending
the same to the Election Commission or the Chief Electoral Officer.
In his cross-examination he has admitted that he had not sent any
information to any authority in accordance with para 30.1 of Chapter
V of the Handbook. The person who made the necessary entries and
filled in the forms, which had already been signed by the Returning
Officer Shri Anil Kumar Yadav, as per his statement, has not been
examined nor his name has been disclosed. He would have been the
best person to depose that Shri Anil Kumar Yadav had given him a
blank signed form for the purpose of filling in the relevant columns.
DW-3 Shri Mahendra Prasad, SDM, who was performing the duty of
Returning Officer of another constituency, has merely stated that he
saw Anil Kumar Yadav in the office up to 5-5.30 p.m. and thereafter
the latter left for Kotdwar as his wife was ill. His testimony does not
lend any kind of assurance to the case put forward by Shri Anil
Kumar Yadav that he had put his signature on a blank form and had
then left for Kotdwar. If he was present in his office upto 5-5.30 p.m.
there was enough time available to him for filling in the forms.
14. There is another piece of evidence, which creates serious doubt
regarding the conduct of the Returning Officer. Ex. C-1 is a copy of
notice which Shri Anil Kumar Yadav issued to Shri Bhagwati Prasad
Ghildiyal on 23.1.2002 calling his explanation within three days to
show cause as to why disciplinary action be not taken against him for
having received Forms ’A’ and ’B’, which were submitted by the
appellant at 4.10 p.m. on 23.1.2002. It is a fairly long notice running
into about 16 lines. A reply of this notice was given by Shri Bhagwati
Prasad Ghaldiyal on 24.1.2002, which is Ex.-C-2 on the record. It
looks not only doubtful but also highly improbable that though Shri
Anil Kumar Yadav did not perform a very important official duty
which was cast upon him by virtue of being the Returning Officer,
namely, of himself sending the list of nominated candidates as
prescribed in para 30.1 of Chapter V of the Handbook and after
signing the blank forms he left it to his Assistant to make the
necessary entries therein and to send to the Election Commission and
Chief Electoral Officer, etc. on the supposed ground that his wife was
ill and he had to rush to Kotdwar, yet he took pains to issue a notice
on the same day, i.e., 23.1.2002 to Shri Bhagwati Prasad Ghildiyal to
show cause as to why disciplinary action may not be taken against
him. There was hardly any urgency in the matter and the show cause
notice could have been issued later at any point of time. Anyone who
has been assigned the important work of Returning Officer would first
perform his official duty of sending the list of nominated candidates to
the concerned authorities and would not waste time in issuing show
cause notice to a subordinate employee regarding the proposed
disciplinary action. The issuance of show cause notice on the same
day, i.e., 23.1.2002 creates a serious doubt on the bonafides of Shri
Anil Kumar Yadav and in fact shows that evidence was being
manufactured in order to justify the interpolations made in the
nomination papers whereby they were rejected.
15. Shri V.A. Mohta, learned counsel for the respondent has
submitted that Shri Anil Kumar Yadav would not have had the
courage to make interpolations in the nomination papers as at the
relevant time it was the Bhartiya Janata Party, which was in power in
the State of Uttaranchal. Shri Yadav has admitted in his cross-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
examination that he is an officer of U.P. cadre and he had not opted
for Uttaranchal State. It is, therefore, obvious that he was bound to
come back to U.P. and was not to serve in the State of Uttaranchal.
16. Shri Mohta has also submitted that the result of the election
should not be lightly interfered with and the election petitioner must
lead strong and cogent evidence to establish his case for setting aside
the election of a returned candidate. This principle is not of universal
application. This is not a case where the election petition may have
been filed on the ground of corrupt practice or improper acceptance or
rejection of ballot papers or any error in counting of votes. The
election petition has been filed on the ground that the appellant’s
nomination papers had been improperly rejected, which is a ground
contemplated by Section 100(1)(c) of the Act. In such a case the only
issue before the Court is to examine the correctness and propriety of
the order by which the nomination papers of a candidate are rejected
and the scope of inquiry is limited to the said consideration.
17. Having given our careful consideration to the evidence on
record and the submission made by the learned counsel for the parties
we have no hesitation in holding that the appellant has succeeded in
establishing that he had filed his nomination papers along with Forms
’A’ and ’B’ on 22.1.2002 and his nomination papers were improperly
rejected. In view of this finding the election of the respondent
Surendra Singh Negi has to be declared as void.
18. In the result the appeal is allowed with costs throughout. The
election petition filed by the appellant is allowed and the election of
the respondent Surendra Singh Negi is declared to be void. The
Election Commission of India shall hold a fresh election for 29
Kotdwar Assembly Constituency of Uttaranchal Legislative Assembly
at the earliest.