JUDGMENT [ENTITY], J.
1. Heard learned Counsel for the parties.
2. The appeal is directed against the order passed by the learned Single Judge on application for interim relief. However, at the request of learned Counsel for both the parties, the petition itself has been heard finally.
3. The election for Sarpanch for Gram Panchayat Bilaniyasar of Tehsil Nokha in Bikaner Division was held on 31st January, 2005. In the said election appellant [ENTITY] was declared elected as Sarpanch and the Respondent [ENTITY] was one of the candidate who lost election behind the elected [ENTITY].
4. Election of said [ENTITY] was challenged by way of election petition by [ENTITY] inter alia on the ground that nomination papers of two other candidates viz. [ENTITY] S/o [ENTITY] R/o Dudawas Tehsil Nokha and [ENTITY] S/o [ENTITY] R/o Dudawas Tehsil Nokha, had wrongly been rejected. Apart from the aforesaid contention, it was also alleged that recounting of votes was erroneously ordered and by manipulating the counting of votes in re-computation, the present appellant was declared elected, infact the election petitioner appellant ought to have been declared elected as he had secured higher votes.
5. The election petition was decided on 23.08.2006. Issue No. 1 was about the alleged wrongful rejection of nomination papers of [ENTITY] and [ENTITY] and Issue No. 4 was about the locus of the election petitioner to raise objection about the wrongful rejection of nomination forms of [ENTITY] and [ENTITY].
6. So far the locus of the election petitioner to raise objection as to wrongful rejection of nomination forms of [ENTITY] and [ENTITY] is concerned, now there is no dispute about the right of the election petitioner to challenge the election of [ENTITY] on the said count, notwithstanding that the persons whose nomination papers were rejected have themselves not come forward to challenge the election.
7. So far issue about any error in re-computation process is concerned, the same was not pressed before the learned District Judge trying the election petition.
8. So far as Issue No. 1 was concerned, the learned District Judge found that the forms submitted by [ENTITY] and [ENTITY] were incomplete but he was of the opinion that merely because of incomplete information about the criminal record of the candidate or about the number of children and their respective dates of birth, the forms were not completely filled it was not enough to reject the nomination forms in the absence of any objection from any quarters. The Returning Officer ought to have assumed that after 23.08.1994 [ENTITY] and [ENTITY] had no child and, therefore, since, the non-fulfillment of the information did not effect the eligibility of the candidate, the nomination form ought not to have been rejected only on the basis of non-filling of certain columns of the form by treating the form to be incomplete. Such a defect in the form cannot be considered as of material character so as to warrant rejection of nomination forms by the Returning Officer. It has also been opined by the learned District Judge that according to election manual if a candidate does not declare the information about the number of children and their date of birth he is required to give a memo and it is only if after giving memo, the candidate does not submit the form or fills the incomplete form, it may be assumed that the candidate does not want to give the necessary information deliberately and his nomination form can be rejected: It is also stated in the election instructions that if during scrutiny of the form the candidate furnishes such declaration, then the nomination form cannot be rejected. On this premise, it was further found by learned District Judge that in the present case Returning Officer without requiring [ENTITY] and [ENTITY] in writing or verbally to fill those entries, it was not authorised to reject the form. Thus, finding that two of the nomination forms of [ENTITY] and [ENTITY] were rejected wrongfully and considering that had the two candidates allowed to contest the election, the election result was likely to be affected, the election petition was allowed and the election of the appellant was set aside.
9. The principal question arises for consideration in this appeal, therefore, is whether the rejection of nomination papers of [ENTITY] and [ENTITY], which undisputedly and undeniable were not completely filled and were rightly rejected by the Returning Officer at the time of scrutiny of nomination papers or defects in nomination papers were not of substantial character and could not have been rejected, without calling upon the respective candidates to complete the form.
10. We may notice that in the [ACT] [SECTION] provides for presentation of nomination forms on the day appointed under the [SECTION] for presentation of nomination forms by any person qualified under [SECTION] for election as Panch and desiring to seek such election. He is to deliver in person to Returning Officer his nomination form in Form 4 duly filled and signed by him or bearing his thumb impression.
11. So far as submission of the nomination forms in Form 4 proper is concerned, the same have not found to be incomplete. What has been found to be incomplete is as per the rejection order the requisite information required to be furnished as per self declaration as in [SECTION] pro forma forms provided alongwith nomination form seeking information and declaration in respect of concluded or pending criminal cases against the candidate in light of the [SECTION] of the Act and the pro forma fordeclaration/undertaking in respect of existing children of the candidate keeping in view the provisions of [SECTION] of the [ACT] which provides for the disqualification of a candidate for any elected office of Panchayat Institution. According to [SECTION] a person who has been convicted for any offence by a competent court and sentenced to imprisonment for six months or more, and any person who is under trial before the competent court which has taken cognizance of the offence and framed charges against him of any offence punishable with imprisonment of five years or more are disqualified to participate in the election as a candidate. Similarly, in terms of [SECTION] any person who lias more than two children is incompetent to contest the election. The Explanation to [SECTION] dilutes the provision of [SECTION] which provides that where the person has only one child from the earlier deliveries on the date of commencement of this Act and thereafter any number of children born out of a single subsequent delivery shall be deemed to be one entity. [SECTION] came into force with commencement of the [ACT] on 23.04.1994 whereas [SECTION] came into affect from 27.11.1995. The information regarding the record of conviction or pendency of criminal trial or number of children and their respective date of birth and birth of any child after specified dates in Explanation all relate to determine the question about qualification of a candidate to contest election in terms of [SECTION]. These pro forma Schedule or declaration/undertaking have been provided by the State Election Commission, to be filled and submitted along with nomination form before the Returning Officer to elicit inquiry into the qualification or disqualification of a candidate on these counts before acceptance of the nominations.
12. [SECTION] requires that the Returning Officer should inform the person delivering nomination papers about the day, hour and place appointed for the scrutiny thereof. [SECTION] provides for scrutiny of nomination papers on the day and the hour and the place appointed by the Returning Officer. [SECTION] inter alia provides that Returning Officer shall decide all such objections and may either on the basis of such objection or on his own motion reject on any of the following grounds amongst others namely [i] that the candidate is not qualified or is disqualified for the election or [ii] that there has been a failure in compliance of the provisions of [SECTION]. The other grounds of rejection of nomination papers we are not referring here as they are not relevant for the present purposes.
13. It has been contended by the learned Counsel for the appellant that to hold inquiry into the qualification or disqualification of a candidate who has filled his nomination papers is an essential duty of the Returning Office while scrutinizing the nomination papers for the purpose of making this scrutiny in discharge of this duty meaningful the Returning Officer is authorised to seek on his own about the requisite information from the candidate or his election agent. For the purpose of eliciting this information it is also permissible for the Returning Officer even without any instructions from the Election Commission to provide the pro forma to the candidate to be submitted along with nomination paper or thereafter during the scrutiny and failure to provide such information in the pro forma or during the scrutiny amounts to not allowing Returning Officer to discharge his obligation properly and such failure on the part of a candidate in furnishing complete information so required is a defect of substantial character and may result in rejection of nomination papers. Since, in the present case such informations were not furnished in the pro forma provided along with nomination papers by incomplete filling of the form and such information were not completed during the course of scrutiny, the rejection of forms of [ENTITY] and [ENTITY] were properly made by Returning Officer therefore, it is contended that the election of the petitioner appellant could not have been set aside by finding any defect in rejection of the nomination papers of [ENTITY] and [ENTITY] in the present case. The learned Election Tribunal has seriously erred in considering such defect of furnishing incomplete information to be of non-substantial character by assuming that the candidates whose forms have been rejected were not disqualified because no objection was raised in that regard was not a defect of substantial nature. It was also pointed out that instruction regarding giving of a memo by Returning Officer has been misinterpreted. Such memo was required to be given only in case nomination papers are not accompanied with pro forma provided giving requisite information referred to above as provided under the pro forma provided by the State Election Commission itself. But if pro forma has been submitted along with nomination papers, may be not completely filled, in that case no further memo is required to be issued but if during the scrutiny those informations are completely furnished, a form may not be rejected on that ground. Since in the present case the information required in the pro forma and the said pro formas were annexed with the nomination papers of [ENTITY] and [ENTITY], no memo was required to be given by Returning Officer for calling upon the candidates to furnish the information in pro forma form and since incompleteness of the forms were not cured even after the scrutiny was commenced the rejection of the forms on the basis of furnishing incomplete information cannot be faulted with. It has also been urged that for the purpose of finding whether the nomination form or the requisite pro forma requiring information about the disqualification is concerned, the inquiry into this fact whether the candidate was actually disqualified or not was wholly irrelevant and the learned Election Tribunal was not justified in determining the substantial nature of the defect by assuming nonexistence of any disqualification in favour of the such candidates. In support of the contention raised by the appellant, reliance has been placed on the Supreme Court decision in [ENTITY] Shrisvastav v. Naresh Singh Patel .
14. On the other hand it is contended by the learned Counsel for the election petitioner that since the pro formas were not part of statutorily prescribed nomination papers, mere incompleteness of the certain columns, which had vital bearing on qualification of the candidate to contest election, particularly keeping in view that no candidate has raised objection about the qualification of the candidature of [ENTITY] and [ENTITY] the blank places left in the various columns of the pro formas were of insignificant character and for such insignificance lapse on the part of the two candidates who come from rural background and were not well versed with law, the rejection of nomination papers were wholly unjustified so much so that the Returning Officer did riot give any opportunity to complete the form to the two candidates before rejecting the same either by serving a memo to that effect or otherwise by calling upon them to complete the form before rejecting the same. He, therefore, supported the reasonings that prevaifed with the learned Election Tribunal. In support of his contention he relied upon [PRECEDENT] . It is also urged by the learned Counsel for the respondent-election- petitioner that since there was no objection or questions about any child having born to [ENTITY] and [ENTITY] after 23.04.1994 and in the absence of any material to suggest that the said candidates had any child other than what was stated in the pro forma, the question of leaving the columns seeking information about any child born after 23.08.1994 is of no consequence and were of insubstantial character. A person who did not have a child after 23.08.1994, the column 'Kha' or 'Ga' were not even required to be filled in the pro forma. Therefore, for that reason, also the pro forma could not have been said to be incomplete, without holding inquiry into the fact. So also is the case for the columns remaining unfilled in the pro forma requiring information about the previous conviction or existing pendency of any trial relating to criminal offence. There being no objection on the ground of any previous conviction or pendency of criminal trial against the candidates whose nomination papers have been rejected, it was not even required to fill in those columns and, therefore, the very foundation of rejecting the candidatures of [ENTITY] and [ENTITY] without eliciting any information regarding the facts about the requisite disclosures about the qualification was not permissible. Hence the order of the Tribunal holding the rejection of nomination papers of [ENTITY] and [ENTITY] to be invalid are justified and deserve to be maintained.
15. The power of Returning Officer to scrutinize the nomination papers and require the candidates to furnish such information as is considered by him to be necessary and relevant for the purpose of scrutiny of the nomination papers and the' consequent obligation of the candidate or through his election agent to furnish such required information to Returning Officer is well settled law. On failure of a candidate to respond the required information from the Returning Officer or his conduct which can render the exercise of his power and discharge of his duty by the Returning Officer nugatory renders the nomination papers of such candidate liable to be rejected is also well settled.
16. In this connection reference may be made to decision of [ENTITY]'s case (Supra). It was a case which arose out of by election held in February 2002 to Madhya Pradesh Legislative Assembly. The nomination of one of the candidates was rejected at the time of scrutiny on the ground that he had not filled up the pro forma prescribed by the Election Commission. The said pro forma was required to be filled up to ascertain as to whether the candidate had been convicted or not for any offence mentioned in [SECTION] of the [ACT]. He submitted only a blank pro forma. He has also furnished a declaration in the prescribed form for nomination paper that the candidate was qualified and not disqualified for being chosen to fill the seat. After the completion of the election when petition was preferred against the elected candidate inter alia on the ground that nomination papers of candidate was wrongly rejected, for omission to fill up the pro forma, as neither such pro forma was statutorily provided under the Act nor the Rules framed thereunder and information about the qualification and non- existing disqualification in statutory form was sufficient. The election petition was dismissed by the High Court.
17. The Supreme Court while affirming the judgment of High Court laid down the principle that the Returning Officer is entitled to satisfy him at the time of scrutiny that the candidate is qualified or disqualified. The Returning Officer is authorised to seek such information to be furnished at the time on or before the scrutiny. The Court also held that the authority of Returning Officer to elicit such information by providing him a pro forma, eliciting necessary information about disqualification of a person to be a candidate in the election, in terms of [SECTION] of the Act of 1951. The Court further held that if the candidate fails to furnish such information and also remains absent at the time of scrutiny of the nomination papers he is presumed to be obstructing and rendering inquiry by the Returning Officer into qualification of candidature nugatory. That is a defect of the substantial character in the nomination of candidate for which Returning Officer can reject nomination of such candidate. In the case before the Supreme Court in which the candidate had failed to furnish such information, sought on the pro forma given to him and has also failed to remain present in person or through his agent at the time of scrutiny. Considering the conduct of the candidate the Supreme Court held that the statutory duty in which power of the Returning Officer for holding proper scrutiny of the nomination paper was rendered nugatory and no scrutiny of the nomination paper could be made under [SECTION] of the Act of 1994 in light of [SECTION] of the Act of 1951 which results in defect rendered of for substantial character in the Nomination and the Returning Officer then has right in rejecting the same.
At first time of scrutiny the Returning Officer is entitled to satisfy himself that a candidate is qualified and not disqualified. [SECTION] authorises him to hold an enquiry on his own motions, though summary in nature. The Returning Officer furnished a pro forma to the candidates to be filled on affidavit and filed on or before the date and time fixed for scrutiny of nomination paper. Therefore, providing a pro forma, eliciting necessary and relevant information in the light of [SECTION] of the Act to enquire as to whether the person is qualified or function fully covered under [SECTION] of the Act. The Returning Officer is authorised to seek such information to be furnished at the time or before scrutiny. If the candidate fails to furnish such information and also absents himself at the time of the scrutiny of the nomination papers, is obviously avoiding a statutory enquiry being conducted by the Returning Officer under [SECTION] of the Act relating to his being not qualified or disqualified in the light of [SECTION] of the Act. It is bound to result in defect of a substantial character in the nomination.
18. Rejecting the contention that the declaration given in the form statutorily provided as nomination paper is sufficient for the purpose of scrutiny and no further information other than one required statutorily either under the Act or the Rules can effect the validity of the nomination, the Court said as under:
Ac-cording to the petitioner, information furnished in Form 2-B prescribed under [SECTION] for the nomination is sufficient, as it contains the declaration of the candidate that he is qualified and not disqualified to be a candidate for being chosen from the constituency. In our view the bald declaration that the candidate is qualified or disqualified is not at all sufficient to scrutinize the nomination paper from the angle of [SECTION] of the Act. [SECTION] provides for scrutiny of the nomination paper to see whether he is disqualified for being chosen to fill the seat or not, amongst others in the light of [SECTION] of the Act; as indicated earlier, [SECTION] falls in [SECTION] of the Act. Therefore, the declaration in the nomination paper that the candidate is qualified and not disqualified may only be a mere basic statement necessary to fill up the nomination paper but it contains no information or facts relevant for the purposes of scrutinizing the nomination paper in the light of [SECTION] of the Act which falls in [SECTION] of the Act.
19. Thus laying down that the bare declaration that the candidate is qualified and does not suffer from any disqualification is not enough the court explained the duty and obligation of Returning Officer and his powers to seek requisite information from the candidate or their respective agents and which has not at all sufficient to scrutiny, the nomination papers from the inquiry of [SECTION] of the Act of 1951 [SECTION] provides that for scrutiny of the nomination papers to see whether he is disqualified for being chosen to fill the seat or not, amongst others in the light of [SECTION] of the Act; as indicated earlier, [SECTION] falls in [SECTION] of the Act, therefore, the declaration in the nomination paper was stated in the following terms:
For the purpose of scrutiny further information is necessary. The scrutiny may call for even suo motu inquiry by the Returning Officer though summary in nature. It is one of the statutory duties of the Returning Officer to scrutinize the nomination paper in the light of [SECTION] of the Act and he is statutorily authorised to hold a summary inquiry about the qualification and disqualification of a candidate. [See [PRECEDENT]. Such a power which vests in the Returning Officer is not dependent upon any instructions issued by the Election Commission, therefore, it is not necessary to enter into the controversy which is sought to be raised as to whether the instructions issued by the Election Commission are in exercise of its power under [SECTION] or not. The Returning Officer is supposed to have the necessary information at the time of scrutiny of the nomination paper and for that purpose he can very well require a candidate to furnish information relevant for the purpose of [SECTION] of the Act before or on the date of scrutiny. It was further desired that such a scrutiny be made by the Returning Officers looking to the menace of criminalisation of politics. It was a part of their duty to scrutinize the nomination papers in the light of [SECTION] of the Act which implies that he is authorised to seek necessary information for the purpose. It can be suo motu as well.
20. Faying down the ambit of the necessity of holding a summary inquiry into the qualification and disqualification of the candidate and Returning Officer's Authority to suo moto seek such information without instruction from Election Commission the Court accepted the power of Returning Officer to seek required information on a formal, which would became the foundation of such inquiry the Court conceded the power in the Returning Officer to provide a format performa for securing such information along with nomination form statutorily provided, when the court further added:
Since such information is necessary and relevant for the purpose of scrutiny of the nomination paper under [SECTION], in the light of [SECTION] of the Act, it can well be furnished on a format provided to a candidate by the Returning Officer and it becomes his duty to furnish such information so that Returning Officer may discharge his statutory duty to scrutinize the nomination papers effectively properly and in consequence with the provisions of law.
21. These principles must effectively close the argument of the respondent election petitioner that format or pro forma required to be submitted along with nomination papers in the prescribed form were not required to be filled by the candidate and for their incompleteness, the nomination papers could not be rejected.
22. The question which still would be important to examine is whether in a given case rejection of nomination paper of a candidate on account of incomplete pro forma furnished by a candidate by itself is sufficient to reject the candidature of a candidate for want of incompleteness of the form or something more is required to be considered.
23. Here we may notice that the basic distinction between the requirement of the completeness of the nomination form required to be filled in format being provided by Statute on the one hand and the pro forma format provided by the Election Commission or by the Returning Officer for the purpose of eliciting the information to discharge his statutorily obligation to scrutinize qualification and disqualification of a person to be a candidate in terms of the relevant provisions of law under which elections are being held on the other hand. While requirement of a full and complete nomination paper in the prescribed form in all respects is at the time of filing of the Nomination papers and any defect which remains in the statutorily prescribed nomination paper is not permissible to be cured after the nomination papers are submitted. Its acceptance or rejection would depend on its face value and the nature of the defect existing in the nomination paper as submitted in the first instance. On the other hand, as has been noticed by the Supreme Court in [ENTITY]'s Case (Supra), the requirement of furnishing information relating to qualification and disqualification in the light of the provisions contained in the relevant statute under which elections are being held, is essential part of duty to be discharged by the Returning Officer while scrutinizing the nomination papers submitted before it. Such duty includes a summary inquiry into the qualification and disqualification of the prospective candidate, beyond the declaration made in the statutorily prescribed form. This information which the Returning Officer is to secure is not wedded with the time of presentation of such information but is a part of summary inquiry to be conducted by the Returning Officer into the qualification and disqualification of the respective candidates on commencement of scrutiny and is liable to be cured until scrutiny is over and the Returning Officer decides thereon. In other words, the non-submission of such information at the threshold by itself cannot result in rejection of the nomination papers, but is curable even during the inquiry when required by the Returning Officer. Since it is a part of the duty of the Returning Officer to elicit information about requisite qualification and disqualification of the prospective candidates, and the providing of a format for securing this information is also a part of that duty to be discharged by the Returning Officer, which continues until the process of summary inquiry is over. Therefore, if during the scrutiny the candidate or his election agent is available for furnishing the required information to complete the summary inquiry by the Returning Officer and on being asked such information is furnished the nomination paper cannot be rejected on the ground of incompleteness of the per forma submitted initially. However, if the pro forma is not submitted along with nomination paper, or furnished incompletely nor thereafter the candidate or his agent is present during the time of scrutiny so as to enable the Returning Officer to discharge his duty by inquiring into the relevant information about qualification and disqualification affecting the candidature of the candidate or if such person may refuse to furnish the information which has not already been furnished when asked, it may entail the rejection of the nomination. In the former case mere non-fulfillment of any column in the format provided by the Returning Officer or the Election Commission, as the case may be, for eliciting the required information about qualification and disqualification of the candidate may be a defect of a formal character and not substantial in nature but in the later it becomes a defect of substantial character as it results an obstruction in the due discharge of duty of the Returning Officer on account of non- furnishing of information and non availability of the person thereafter during scrutiny also to supply such information. Therefore, each case has to be examined in its own facts and circumstances attached thereto to find out whether the non- furnishing of requisite information in format is of the substantial character or of non-substantial character in order to determine whether the nomination paper was rightly rejected or wrongly rejected.
24. We further find in tune with the ratio laid down by the Supreme Court in [ENTITY]'s Case, in the election guide issued for the purpose of elections of Panch/Sarpanch, Zila Parishad/ Panchayat Samiti in Rajasthan similar instructions have been contained our attention was invited to the Guide issued in February 2004 by the State Election Commission Jaipur. [SECTION] provides the guidelines about obtaining along with the nomination papers a declaration to be filed and annexed thereto in order to enable the Returning Officer to examine the qualification and disqualification of a candidate in respect of existing children on relevant date and thereafter, about conviction for a criminal-offence and about pendency of the criminal case in which charges have been framed. The candidate desirous of contesting election will have to furnish information in the format provided by the Commission. It also requires that if a candidate does not file such declaration along with nomination paper then Returning Officer shall immediately give a memo to such candidate requiring him that before scrutiny of the nomination commences to file the required information and declaration. If in spite of that undertaking or declarations are not filed the nomination paper may be rejected at the time of scrutinizing Nomination papers. The Returning Officer is also required to warn the candidates at the time of filing of nomination paper that if the undertaking and declarations are not filed the nomination paper will be rejected.
25. In this connection, the other relevant information emerging from the Election Guide is in para 10 of the aforesaid part. In [SECTION] it is envisaged that if the candidate does not file information and declaration regarding his existing children and conviction for criminal offence or pending trials of criminal offence and he does not file such declaration even after service of memo or furnishes incomplete information it shall be deemed that he does not deliberately want to furnish the information required of him. However, it further states that even where such information is submitted at the time of scrutiny then on account of nonfurnishing or incomplete information at earlier stage the Nomination may not be rejected. This is in tune with the ratio laid down by the Supreme Court in the [ENTITY]'s case as understood by us and as noticed by us above.
26. In the present case the facts about which no dispute can be raised is that the pro forma requiring information about the previous convictions or pending criminal trial as well as information in relation to the children after relevant date/dates in the light of the provisions of [SECTION] read with Explanation, to which we have eluded above were, not filled in completeness. The photo copies of the respective nomination papers along with declaration forms submitted by [ENTITY] and [ENTITY] are part of the record filed before this Court and about the correctness of which no dispute has been raised before us. It clearly goes to show that so far as [ENTITY] is concerned he has not furnished any information in [SECTION] I described as self declaration which relates to pending criminal cases, no information has been submitted positive, negative or by ticking yes or no. Similarly, in the decla- ration, in first part the candidates were required to furnish information about their assets and liabilities. The Second format was exclusively in relation to elicit information about the stated ineligibility mentioned in [SECTION] of the [ACT]. while [ENTITY] has stated negative in respect of disqualification prescribed under [SECTION] nothing has been indicated in [SECTION] of the format requiring information about the disqualification prescribed in [SECTION] of the Act of 1994. Similarly, in the third format which was for eliciting information in relation to disqualification provided under [SECTION] of the Act of 1994 in Para (Ka) the information about names of children have been furnished but instead of dates of birth only their estimated age has been stated [the Para Ka relates to children born prior to 23.04.1994). No indication or any information has been furnished in Para (Kha) and (Ga) respectively related to information sought about any child born between 23.04.1994 to 27.11.1998 and born after 28.11.1995 respectively.
27. With the aforesaid state of affairs the Returning Officer has rejected the Nomination giving reason that (sic) Factually it cannot be stated to be incorrect.
28. Similarly in the [ENTITY]'s case (Supra) nomination papers accompanied with the three forms referred to above proceeds in identical terms and there is no difference in the nature of incompleteness in the form of [ENTITY] then what has been found to be incompleteness in the form of [ENTITY] and the like endorsement has been on the form of [ENTITY] also by the Returning Officer while rejecting the nomination papers of the [ENTITY].
29. We have already noticed above that the election Tribunal has accepted the contention of the petitioner or election petitioner about the wrongful rejection of the nomination papers on the ground that the defect in the form was of insubstantial character and that opportunity was not given to candidates whose forms were rejected to complete the form before scrutiny was over whether by serving a memo or otherwise. That is to say by asking orally or in writing for completing the information.
30. Undoubtedly learned Counsel for the petitioner has urged and with some justification that memo referred to by the learned District Judge in his order was not required to be furnished after the pro forma formats in which required information for summary inquiry has to be furnished to the Returning Officer, have been filed along with nomination paper, may be incompletely filled. In Paras 4 and 10 of Part 6 of Election Guide a memo is required to be given where the nomination paper is not accompanied with the pro forma provided for furnishing such information. In the technical sense there may be no requirement of furnishing memo to fill the complete form where the performas are submitted along with nomination paper in form statutorily provided. However, incompleteness of form could be completed during the scrutiny or the required information could be elicited by the Returning Officer during the scrutiny even where no form has been filled cannot be doubted either in principle or in terms of Election Guide to which we have already referred to according to which if during the scrutiny the required information is furnished, the Nomination cannot be rejected on the ground of incomplete form.
31. This is with significant reason. The object to seek information, whether by prescribing pro forma, or by eliciting such information in writing, or by asking orally is to make effective the duty that Returning Officer has to hold summary enquiry into qualification and disqualification of the candidate in terms of the laws under which elections are being held. The process of such summary inquiry commences only with the commencement of the scrutiny and not before the stage of scrutiny. The time at which question of eliciting such information arises is only after commencement of scrutiny until scrutiny is over with acceptance or rejection of Nomination. It is only if non-furnishing of information hampers the inquiry which the Returning Officer intends to conduct, then non- furnishing of such information can said to be and considered as default of substantial character affecting the nomination process. If any information is not required by the Returning Officer for the purpose of holding such inquiry, then there is no primary obligation to furnish such information, as non-furnishing of some information which the Returning Officer does not consider necessary to elicit, does not affect and obstruct the Returning Officer in discharge of his duty to hold scrutiny of nominations. In such event the default of furnishing incomplete per forma, in our opinion, cannot be considered to be a defect of substantial character affecting the nomination process.
32. It is significant to notice that in [ENTITY]'s case the Apex Court has not rested the matter only on the ground of nonfurnishing of information in pro forma or otherwise, but has indicated that non-furnishing of the information when results in obstructing Returning Officer from holding summary inquiry into the eligibility of a candidate on all counts is obstructed and rendered nugatory.
33. At more than one place the Supreme Court emphasised that where the candidate has not furnished such information as sought on pro forma given to him and had also failed to be present personally or through his representative at the time or before scrutiny, he is obviously avoiding a statutory inquiry being conducted by the Returning Officer relating to his being not qualified or disqualified in the light of relevant provision of law. In such event the statutory duty or power of the Returning Officer for holding proper scrutiny is rendered nugatory. Both conditions viz., furnishing the information in pro forma and absence during scrutiny cumulatively affect the scrutiny. In case the candidate is present during scrutiny and he responds to inquiry there is no failure or obstruction in discharge of his duty by the Returning Officer. Hence, in such event the defect cannot be considered of substantive character. It is only to emphasise that notwithstanding that the pro forma is not duly filled if the candidate is available to respond to any queries raised by the Returning Officer to hold inquiry which he wants to hold into qualification and disqualification of the candidate then the authority of the Returning Officer is not eroded or negated. For such event only denial of the candidate is deemed to diverse the information which is required by him to be furnished that can entail his rejection of nomination papers.
34. In the light of aforesaid principles, if we examine the facts of the present case from the material available before the Election Tribunal there was no iota of evidence that the candidates whose nomination papers were cancelled were not present either personally or though their agent when scrutiny commenced. It is admitted case that neither any candidate nor the Returning Officer had raised any objection about the qualification or disqualification of the candidates [ENTITY] and [ENTITY] on the ground of any child born to them after 23.04.1994 so as to result in total number of child more than two. There is no iota of evidence that during the scrutiny any information was elicited by the Returning Officer which was refused to be diversed by the two candidates concerned. If that were so, no inference can be drawn that the candidate by their conduct rendered the authority and duty of Returning Officer to be discharged in holding a summary inquiry into their qualification and disqualification nugatory. Applying the test in [ENTITY]'s case we are unable to sustain the contention of the learned Counsel for the appellant that mere incompleteness of the pro forma submitted by [ENTITY] and [ENTITY] is of substantial character which could not have been cured by holding an appropriate inquiry by the Returning Officer during scrutiny of the nomination papers. No presumption can be drawn about the absence of the candidate during scrutiny in the absence of any pleadings or any other material to that effect. From the affidavits and cross examinations of witnesses of the appellant it is apparent that no candidate has raised any objection about the qualification of [ENTITY] and [ENTITY] either on account of their previous conviction or pendency of trial or coming into existence of any child after 23.03.1994 resulting in having more than two children in terms of [SECTION] read with Explanation, so as to render any of the candidate disqualified.
35. In the facts and circumstances of the present case the nomination papers of [ENTITY] and [ENTITY] were rejected for such defects which cannot be said to be substantial in character not affecting the result of elections. Therefore, it must be held to have been rejected erroneously.
36. This conclusion of ours accord with the conclusion reached by the Election Tribunal. Consequently, this appeal as well as writ petition fails and is hereby dismissed.
37. At this juncture, learned Counsel for the appellant prays for time to file leave to appeal in Supreme Court. Leave is granted and for a period of three months operative portion of the judgment shall remain stayed. No costs.