EP 1/2006 BEFORE THE HON’BLE MR JUSTICE H. N. SHARMA THIS PETITION HAVING BEEN HEARD ON THE 26 TH DAY OF SEPTEMBER, 2006, THE COURT PASSED THE FOLLOWING: JUDGMENT By this election petition filed under section 80 read with sect ion 81 of the Representation of Peoples Act, 1951, the petitioner has challenged the legality and validity of the election of the respondent No 1, the returned candidate, from No 82 Raha (SC) Legislative Constituency in the last general ele ction, held on 10.4.2006. 2. Apart from the returned candidate, the respondent No 1, the elec tion petitioner has also impleaded another candidate who contested from the afor esaid constituency as respondent No 2, challenging the acceptance of his nominat ion paper as illegal and improper. 3. As per the programme of the general election to the Assam Legis lative Assembly declared by the Election Commission of India, so far it relates to No 82 Raha (SC) Legislative Assembly Constituency were as follows: i) Last date of filing Nomination Papers : 24.3.2006 ii) Date of scrutiny of Nomination Papers : 25.3.2006 iii) Last date of withdrawal of candidature : 27.3.2006 iv) Date of Poll : 10.4.2006 v) Date of counting : 11.5.2006 4. In terms of the election notification, as many as, nine candidat es including the petitioner and the respondents submitted their nomination paper s. At the time of scrutiny, the nomination papers submitted by all the candidate s having found to be valid, the Returning Officer accepted all of them and polli ng took place as per schedule on 10.4.2006. 5. The election petitioner contested the election as a candidate sp onsored by Indian National Congress (for short the INC ) whereas the respondent No 1 was supported by the Assam United Democratic Front ( for short the AUDF ) . On the other hand, the respondent No 2 was a candidate sponsored by the Asom G ana Parishad (P), (for short the AGP(P) ). After the election was over, the cou nting of votes took place on 11.4.2006 and the election petitioner secured a tot al number of 32,585 valid votes and the respondent No 1 secured 32,972 number of valid votes. The respondent No 2 secured only 1957 No. of votes. Thus, the resp ondent No 1 having secured the highest No. of valid votes was declared elected by a margin of 387 votes over the petitioner. 6. The petitioner has challenged the election of the respondent No 1 alleging that he has not made due declaration in his nomination paper as requi red under the law and stipulated in Part III and IIIA of the nomination paper fr amed under Form- 2A of the Conduct of Elections Rules, 1961 and accordingly, his nomination paper was illegally and improperly accepted by the Returning Officer which has materially affected the results of the election and, therefore, the s ame is liable to be declared void. 7. It is also pleaded that although respondent No 2 is not a member of the Scheduled Caste community recognized in the State under the Constitution ( Scheduled Caste ) Order, 1950, he being a member of the Matak community and falls within the category of Other Backward Classes and the said constituency b eing reserved for the Scheduled Caste candidate only, the acceptance of his nomi nation paper by the Returning Officer, is illegal which has materially affected the result of the election. It is further alleged that the respondent No 2 being a member of the Kathiatoli Anchalik Panchayat of Nagaon district held an office of profit within the meaning of law and, as such, acceptance of his nomination paper was liable to be rejected on this count also and the margin of difference between the election petitioner and the returned candidate being only 387 votes and the respondent No 2 having polled 1957 votes, the acceptance of nomination o f respondent No 2 has materially affected the result of the election. 8. Pleading in the aforesaid manner, the election petitioner has pr ayed for setting aside the election of the respondent No 1 from the said constit uency declaring the same to be void under section 98(b) of the Representation of Peoples Act, 1951, by awarding costs in his favour. 9. The notice of the election petition having been served upon the respondents, they entered appearance and contested the petition by filing writt en statements categorically denying the allegations made against them in the ele ction petition. 10. The respondent No 1 has denied the allegation that he has not ma de declaration in his nomination paper as stipulated in Part III and IIIA thereo f. He further pleaded that the election petition lacks material particulars as t o how and on what manner and in which column the respondent No 1 has not made su ch declaration in the nomination paper. 11. Similarly, the respondent No 2 has also stoutly denied that he i s not a member of Scheduled Caste community not being eligible to contest the el ection from No 82 Raha (SC) Legislative Assembly Constituency and asserted that he belongs to Scheduled Caste community. He also denied the allegation that he h as been holding the office of profit within the meaning of law disentitling him from contesting the election. 12. On the basis of the pleadings of the parties, the following issu es were framed. 1). Whether the Election petition is maintainable ? 2) Whether there is any cause of action for the election petitioner ? 3) Whether the nomination paper of Respondent No.1 was improperly and i llegally accepted and if so, whether such acceptance has materially affected the result of his election rendering the same liable to be declared void ? 4) Whether the Respondent No.2 is a necessary party in the election proceed ing ? 5) Whether the nomination paper of Respondent No.2 was i mproperly accepted and if so, whether such acceptance has materially affected th e result of the election so far it relates to the election of the returning cand idate ? 6). Whether the Respondent No.2 as a member of Kathiatali Anchalik Panchayat at the time of filing of the nomination was disqualified from being chosen as a me mber of the Assam Legislative Assembly as per the mandate of Article 191 (1)(a) of the Constitution of India and if so, whether such acceptance of the nominatio n paper of the Respondent No.2 has materially affected the result of the electio n ? 7) Whether the Election petitioner is entitled to any relief and if so, to what extent ? . 13. During the course of hearing the election petitioner examined as many as seven witnesses and exhibited eight numbers of documents. The responden t No 1 examined only himself on his behalf and exhibited one document whereas th e respondent No 2 examined three witnesses including himself and exhibited eight numbers of documents. 14. Heard Mr N Dutta, learned senior Advocate assisted by Mr SS Dey, learned counsel for the election petitioner, Mr AB Choudhury, learned senior Ad vocate assisted by Mr JP Sarma, learned counsel for the respondent No 1 and Mr B C Das, learned senior Advocate assisted by Mr A Dasgupta and Ms P Barman, learne d counsel for the respondent No 2. 15. Upon hearing the learned counsel for the parties, I on the basis of the pleadings of the parties, evidence- both oral and documentary and the re levant laws, decide the issues as follows. Issue No 1: This issue relates to maintainability of the election petition. The respondents have not made any argument against the maintainability of the el ection petition. The election petition has been filed under section 80 read with section 81 of the Representation of Peoples Act, 1951, within the statutory per iod of limitation in accordance with the provisions as contained in the Represen tation of Peoples Act, 1951 and duly following the relevant provisions of the Ga uhati High Court Rules. Accordingly, in the absence of any material or ground to hold otherwise, I decide this issue in affirmative. Issue No 2: The petitioner has challenged the election of the returned candi date from No 82 Raha (SC) Legislative Assembly Constituency held on 10.4.2006. I n the said election, the election petitioner contested the election. The electio n petitioner has alleged that the nomination paper of the respondent No 1 was im properly accepted as he did not make due declaration in Part III and IIIA of the nomination paper as framed in Form No 2A under the Conduct of Elections Rules, 1961. It is also alleged that for such violation, the nomination of the responde nt No 1 ought not to have been accepted and the same should have been rejected a s per the provisions of section 36(2)(b) of the Act. It is also alleged that the respondent No 2 is not a member of recognized Scheduled Caste Community of the State. Accordingly, the acceptance of the nomination paper of the respondent No 1 was not proper and for such improper acceptance of his nomination paper the r esults of the election has been materially affected. That apart, it also alleged that the respondent No 2 has been holding the office of profit he being a membe r of the Kathiatoli Anchalik Panchayat elected from the Debnarikoli Gaon Panchay at, and hence acceptance of his nomination paper is illegal on this count also. The respondents have contested this issue and denied the allegat ions in their written statements. Consequently, I find that the assertion of fac ts made by the petitioner, if goes unrebutted, the petitioner would get the nece ssary relief and hence I find that there is cause of action for trial of the el ection petition. Accordingly, this issue is answered in affirmative. Issue No 3: This issue is one of the major issues to be decided in this elec tion petition. The election petitioner has pleaded that the respondent No 1 has not made due declaration as required under the election law as stipulated in Par t III and IIIA of the nomination paper in Form No 2A under the Conduct of Electi ons Rules, 1961. It is correct that in the election petition it has not specific ally mentioned which portion or column of Part III and IIIA of the nomination p aper has not been filled up the respondent No 1. The petitioner also has not spe cified this in his examination in chief, as PW- 1. In his cross-examination, he stated that the respondent No 1 has not signed all the required pages of the nom ination paper and he raised objection about the validity of the nomination paper of the respondent No 1 before the Returning Officer at the time of scrutiny. Bu t this fact of raising objection before the Returning Officer has not been plead ed in the petition nor stated in his examination in chief. PW- 4 is the Returning Officer. In his examination in chief he proved th e nomination of respondent No 1 as Ext- R(1) and the list of validly nominated c andidates, as Ext- P/7, where the names of the respondents also contains. In cro ss-examination, this witness stated that after the scrutiny of the nomination pa per of the respondent No 1, the same was found to be correct and proper. Accordi ngly, the same was accepted and to that effect he made an endorsement at page- 5 of the nomination paper, the Ext- R/1. He further specifically stated that no o bjection was raised before him challenging the validity of the 9nomination paper of the respondent No 1 at the time of scrutiny. The respondent No 1, RW- 1, in his evidence in chief stated that the statement that he did not make necessary declaration in Part III and IIIA i n Form No 2A is totally baseless. He further stated that no objection was raised by any of the contesting candidates or their agents regarding the validity of h is nomination paper at the time of scrutiny. He duly filled up all columns of th e nomination paper and signed in each and every page of the same. In cross- exam ination by the election petitioner, RW- 1 stated that he was a candidate from AU DF and the said party was not recognized political party at the time of submissi on of his nomination paper and this was within his knowledge. On being shown the Ext- R/1, he admitted that he has not deleted any portion of Sl No Kha(2) (unde r objection) of Ext- R/1. He denied the suggestion that he has not made due decl aration as alleged in the election petition. He also denied the suggestion that the election petition raised objection before the Returning Officer regarding th e validity of his nomination paper. These are the materials in support of the election petitioner so far the oral evidence led by him to prove this issue. In order to prove this is sue, the election petitioner has only relied on the statements of the PW- 1, PW- 4(Returning Officer ) and RW- 1 and Ext- R/1. On scrutiny of the Ext- R/1, the nomination paper (in Assamese) filed by the respondent No 1, it is evident that at Column - Kha (2) of Part III and IIIA of the nomination paper, the respond ent No 1 has not deleted / cut the unnecessary portion as instructed in the sa id column. The English version of Column - Kha (2) of Part III and IIIA of th e nomination paper reads as follows: That I am being set up in this election by the . . . . . . . . . . .party which is a registered - unrecognized political party. That I am contesting this elect ion as an independent candidate (strike out which is not applicable) and the sym bol I have chosen in order of preference are - (a) (b) . On scrutiny of the nomination paper of the respondent No 1, R/1 , I find that the candidate has put the name of the political party who has set up him in the election as AUDF and his election symbol was put on. Mr Dutta submits that the respondent No 1 not having deleted the unnecessary portion in the aforesaid portion of Part III and IIIA of the nomina tion paper as required by law, on that count alone his nomination paper was lia ble to be rejected under the provisions of section 36(2)(b) of the Act. It is su bmitted that under section 33(1) of the Act, it is the legal obligation of a can didate to present a nomination paper completed in prescribed form and the respon dent No 1 not having completed the said prescribed form by striking out the unne cessary portion, acceptance of his nomination paper was improper. Learned counse l further submits that even without raising any objection by any of the candidat es, it was the legal obligation of the Returning Officer to examine this aspect of the nomination paper regarding its validity as per section 36(2) of the Act a nd the said lapse on the part of the respondent No 1 is a defect of substantial character within the meaning of section 36(4) of the Act and hence, the same oug ht not to have been ignored by the Returning Officer. Referring to Tenth Schedul e of the Constitution leading to disqualification of a candidate for being chose n as a member of Legislative Assembly under Article 191 of the Constitution of I ndia, it is submitted that such striking out of inapplicable portion from Column - Kha (2) of Part III and IIIA of the nomination paper is a necessary factor for disqualification on the ground of defection. On such analogy, it is submitted t hat the said defect is of substantial character. Mr AB Choudhury, learned senior counsel for the respondent No 2, on the other hand, submits that a bare reading of the aforesaid Column Kha (2) would disclose that for not striking out the inapplicable portion would not mate rially alter the situation, inasmuch as, the respondent No 2 has specifically st ated that he has been set up in the election by the AUDF which is a registered - unrecognized political party and has not contested as an independent candidate . He further submits that the Assamese version of the nomination paper is slight ly deviated from the English version it is submitted that writing the name of th e party who has set up his candidature, itself excludes that he has contested th e election not as an independent candidate but on the support of an unrecognized political party mentioned in the said column. In order to categorize it as a valid nomination paper a candidat e has to submit his nomination paper as per section 33 of the Act which should b e completed in the prescribe form and signed by the candidate and by an electora te of the constituency. The nomination paper presented under section 33 of the A ct shall be completed as per the From 2A to 2E as prescribed in rule 4 of the Co nduct of Elections Rules, 1961. Admittedly, the respondent No 1 has not deleted the inapplicable portion from the said clause Kha(2) of Part III and IIIA of the nomination paper. However, in order to invalidate a nomination paper for non-co mpliance of section 33 of the Act, the defect is to be of a substantial characte r in terms of section 36(4) of the Act. Although it is submitted by Mr Dutta ref erring to proviso to Rule 4 of the Conduct of Elections Rules, 1961, that by mak ing a provision therein that failure to complete or defect in completing, the de claration as to symbols in a nomination paper in Form 2A shall not be deemed to be a defect would be of a substantial character, would certainly mean other defe cts to be of substantial character, but such a meaning is not attracted by the s aid proviso. By inserting the said proviso to rule 4 it cannot be held that the re can not be any other defect which are not substantial in nature or otherwise all defects other than that of symbol are of substantial character. There may be some other defects / defect which are also not of substantial character. The sa id proviso speaks defect relating to the election symbol only. Such an interpre tation of rules is on the face of it is not attracted. On a close scrutiny of th e said column Kha (2) of Part III and IIIA of Ext- R/1, I find that for not stri king out the inapplicable portion will not materially alter the position for whi ch the clause has been inserted. Mentioning of the name of the party which has s et up the candidate for the election would be indicative of the necessary infor mation and intention as required to be furnished by the candidate. Accordingly, I hold that the alleged defect is not of substantial character and for that co unt the nomination of the respondent No 1 was not liable to be rejected. The oth er allegation of not signing the nomination paper in each pages, etc. as alleged in the pleadings could not be proved at all and the Ext- R/1 belies such allega tion. The learned counsel has also not agitated those allegations. In view of th e aforesaid discussions, the Issue No 3 is answered in negative and against the election petitioner. Issue No 4: The respondent No 2 is a contesting but defeated candidate in th e election. The challenge to the election of a returned candidate can be made on ly by filing an election petition in the High Court as provided under Chapter II Part VI of the Act and no election can be called in question except by filing s uch an election petition in the High Court in accordance with the provisions of Part VI of the Act. Section 82 of the Act mandates that an election petitioner i s to join as respondents to his petition ¾ (a) where the petitioner, in additio n to claiming declaration that he himself or any other candidate has been duly e lected, all the contesting candidates other than the petitioner, and where no su ch further declaration is claimed, all the returned candidates and (b) any other candidate against whom allegations of any corrupt practice are made in the peti tion. The necessary requirement as to what should contain in the petit ion, relief that may be claimed and the procedure for trial of such election pet ition has also been provided in the Act. In the instant election petition there is no allegation of any c orrupt practice against anybody. Further the election petitioner has also not cl aimed for a declaration that he himself or any other candidate have been duly el ected. Consequently, in the absence of the aforesaid allegation, declaration, ex cept the returned candidate, ie, the respondent No 1, any other contesting candi date including the respondent No 2 is not statutorily required to be impleaded a s party respondent. Hence the respondent No 2 is not at all a necessary party to the election proceeding and he has been wrongly impleaded. The submission of Mr Dutta that since the respondent No 2 on receipt of the notice appeared in the p roceeding and contested the same by filing written statements, this issue has be come redundant cannot be accepted in view of the statutory requirements as provi ded under section 82 of the Act. Accordingly, this issue is answered in negative and against the election petitioner. In arriving at the aforesaid decision, I a m fortified with the law laid down by the Apex Court reported in AIR 1982 SC 383 : 1991 (2) (supp) SCC 624 and AIR 1964 SC 1545. Issue No 5: The election petitioner pleaded at paragraph- 13 of the petition , inter alia, that the respondent No 2 was illegally allowed to contest the elec tion, inasmuch as, he is not a member of the Scheduled Caste community as mentio ned in Part II of the Constitution (Scheduled Caste ) Order, 1950 (an amended ) on the face of the constituency in question being a reserved constituency for t he Scheduled Caste candidates. It is pleaded that the respondent No 2 is a membe r of Matak community and is a disciple of Sri Sri Mayamara Gorhpara Satra, Dib rugarh and Shri Padma Kanta Das, PW- 6 who is a member of the Sub-Divisional Sch eduled Caste Development Board, Nagaon, certified that the respondent No 2, is n ot a member of the Scheduled Caste community but a member of Matak community. It is also pleaded that the concerned Government Gaonburah has certified the re spondent No 2 to be a member of Matak community and a similar certificate has also been issued by Sri Durga Das, RW  2/3, who is the President of the Asom An usuchita Jati Parishad, Nagaon, certifying the respondent No 2 to be a member of Matak community, which is recognized as Other Backward Classes and not a memb er of the Scheduled Caste community. The contention of the election petitioner is that the respondent No 2 not being a member of the Scheduled Caste community of the State of Assam, is not entitled to contest the election from the said con stituency and his nomination was improperly accepted. It is further alleged that the margin of difference of votes between the election petitioner and the retu rned candidate, respondent No 1, is only 387 which is even less than … votes pol led by the respondent No