R.N.BISWAL, J. ELECTION PETITION Nos. 4 & 6 of 2009 (Decided on 23.6.2010) RANEDRA PRATAP SWAIN & ANR. ……… Petitioners. .Vrs. RAMESH ROUT ………. Respondent. REPRESENTATION OF PEOPLE ACT, 1951 (ACT NO.43 OF1951) – SEC,36 (5). For Petitioner – M/s. Bidyadhar Mishra, G.Agarwal, A.K.Mishra, P.K.Nayak, S.Satapathy. For Respondent – M/s. Subir Palit, A.K.Mohapatra, A.K.Mishra S.K.Satpathy, A.K.Mahana, A.Dey, B.Biswal, A.Mishra, H.K.Ratsingh, D.N.Patnaik,A.Kejriwal. For Petitioner – M/s. Pitambar Acharya, P.K.Ray, B.Bhadra, J .R.Chhotray, S.Rath. For Respondent – M/s.Subir Palit, a.K.Mohapatra, A.K.Mishra, S.K.Satpathy, a.K.Mahana, A.Dey, D.Biswal, A.Mishra, H.K.Ratsingh, D.N.Patnaik, A.Kejriwal. R.N.BISWAL,J. The petitioner, in Election Petition No.4 of 2009 challenges the declaration of result dated 16.05.2009 declaring the sole Respondent, Ramesh Rout, to have been elected as Member of the Orissa Legislative Assembly from 89-Athagarh Assembly Constituency on the ground that rejection of his nomination by the Returning Officer is illegal and improper. He has prayed to: i) declare the election of the respondent to be void; ii) declare that a casual vacancy has been created so far as it relates to 89-Athagarh Assembly Constituency and iii) direct the appropriate authority to conduct election with respect of 89-Athagarh Assembly Constituency within the time specified/prescribed under law and other ancillary reliefs. In Election Petition No.6 of 2009, Rabindra Nath Rout has also challenged the said election on the same ground substantially with the same prayer. So, both the election petitions were heard analogously and as such a common judgment is passed there under. 2. The schedule of election relating to 89-Athagarh Assembly Constituency is as follows: 28.3.2009 to 04.04.2009 Period prescribed for filing of “NOMINATIONS” 06.04.2009 : Date fixed FOR SCRUTINY OF NOMINATIONS 08.04.2009: : Last date for WITHDRAWAL OF NOMINATIONS 23.04.2009 : Date of POLLING 16.05.2009 : Date of COUNTING OF VOTES 28.05.2009 : Date before which the Election shall be completed During the period prescribed, eight candidates including the petitioner in E.P. No.4 of 2009, Sri Ranendra Pratap Swain filed their respective nominations. As per the election petitions on 4.4.2009 at 11.25 A.M., Sri Ranendra Pratap Swain presented four sets of Nomination along with the required documents before the Returning Officer. In the 1st set of Nomination, he filed the original Form-A and Form-B, signed by the authorized person in ink, showing that he had been set up by Biju Janata Dal to contest as party nominee, whereas with the other three sets of Nomination, he filed three sets of Xerox copies of the original of Forms-A and Form-B duly authenticated by notary, Shri Ambika Prasad Ray, Advocate. The Returning Officer carried out preliminary examination of the Nomination and all accompanying documents then and there and granted Check List in token of receipt of the four sets of Nomination including the required documents at 11.45 A.M. on the same date. According to the election petitioners, if any of the documents was not filed along with the Nomination, it was obligatory on the part of the Returning Officer to mention the same in the bottom of the Check List, indicating the time limit by which, it would be submitted. No such endorsement was made in the Check List granted to the petitioner. On the date of scrutiny, no objection was raised by any of the contesting candidates or any person on their behalf that Form-A and Form-B filed by Sri Ranendra Pratap Swain with his first set of Nomination, were not in original, containing the signature of the authorized person in ink. The complain was raised by the Returning Officer himself that Forms-A and Form-B were two Xerox copies and that the same were not signed in ink by the authorized person. The representative of the election petitioner, Sri Ranendra Pratap Swain requested the Returning Officer in writing to allow some time to rebut the allegation regarding non-submission of the original Form-A and Form-B, containing the signatures of the authorized person in ink, but, he rejected the same illegally. Due to the illegality committed by the Returning Officer, the Petitioner could not contest the election. The result of the election was declared on 16.05.2009 and respondent was declared elected. Thereafter, within the statutory period, the petitioner filed the present election petition with the prayer as here-in- before stated. 3. The respondent in his written statement denied the averments of the petitioners that election petitioner, Sri Ranendra Pratap Swain filed Form-A and Form-B in original in his first set of Nomination. According to him, at the stage of filing the Nomination along with other documents, Returning Officer is required only to make a preliminary examination of the same; detailed scrutiny is not required at that stage. All that is required at that stage is disclosure by the candidate as to what documents he has filed. A Check List is issued to the candidate by the Returning Officer as a proof of the fact that the documents disclosed by the candidate have been filed along with the Nomination. It can not prove the genuineness or the correctness of the documents referred to in it. Non-filing of original Form-A and Form-B signed in ink being a defect of substantial nature, the Returning Officer has rightly rejected the Nomination of Sri Ranendra Pratap Swain. Since it is the case of the election petitioner that he had filed the original Form-A and Form-B, the question of granting him opportunity, to rebut the objection raised by the Returning Officer, did not arise. The Respondent has also taken the plea that the election petitions are bad for non-joinder of necessary party. According to him, eight candidates contested the election for 89-Athagarh Assembly Constituency, out of whom, petitioners only chose the respondent to array him as a party. As such election petitions are bad for non-joinder of necessary party. Furthermore, he has taken the plea that the election petitions are not maintainable. 4. On the basis of above pleadings of the parties, the following issues are framed. 1) Whether the Election Petition is maintainable? 2) Whether it is bad for non-joinder of necessary parties? 3) Whether the Returning Officer improperly rejected the Nomination of the Election Petitioner in violation of the statutory provisions and rules? 4) Relief if any, the Election Petitioner is entitled to? 5) Whether the Returning Officer improperly rejected the Nomination of Sri Ranendra Pratap Swain, the official candidate of Biju Janata Dal in violation of the instructions issued by the Election Commission of India in exercising of its constitutional powers and the principles of natural justice or not ? As per the pleadings of the petitioners, election petitioner, Sri Ranendra Pratap Swain, filed original Forms-A and Form-B being duly signed by ink by the authorized person with his 1st set of Nomination, which is denied by the respondent. The parties led evidence to establish their stands in this regard, but no specific issue has been framed there under. So it would be just and proper to add the following issue as issue no.6. Issue No.6 Whether the Election Petitioner Sri Ranendra Pratap Swain filed the original Form-A and Form-B being duly signed in ink by the authorized person with the 1st set of his Nomination? 5. In order to establish their case, the petitioners examined three witnesses- P.W.1 is election petitioner in E.P. No.6 of 2009 and also the proposer of Sri Ranendra Pratap Swain in the 1st set of Nomination, P.W.2 is Sri Ranendra Pratap Swain and P.W.3 is his authorized agent to the scrutiny of his Nomination along with the required documents. Respondent examined 4 witnesses- R.W.1 is the respondent himself, R.W.2 is a witness to a scooter accident, caused by Ranendra Pratap Swain, on the date of filing Nomination, R.W.3 is a witness to the filing of Nomination by Sri Ranendra Pratap Swain and R.W.4 is a witness who heard the Returning Officer enquiring about B.J.D. Party ticket. The Returning Officer was examined as Court Witness No.1. 6. Issue No.6. For the sake of convenience, issue no.6 is taken up for consideration first. It transpires from the evidence of P.Ws.1 and 2 that on 04.04.2009 at 11.25 A.M. the Election Petitioner, Sri Ranendra Pratap Swain submitted four sets of Nomination along with the required documents including original Form-A and Form-B signed in ink, by Shri Nabeen Patanaik, President, Biju Janata Dal, who was the authorized signatory to sign such forms on behalf of Biju Janata Dal, before the Returning Officer. All the four sets of Nomination together with accompanying documents were thoroughly verified by the Returning Officer in their presence and in presence of others whereafter he granted the Check List to the election petitioner, Sri Ranendra Pratap Swain at 11.45 a.m. on 04.04.2009. 7. It further transpires from their evidence that while handing over the Check List to Sri Ranendra Pratap Swain, the Returning Officer said “what ever original Forms and documents that you have given/submitted and I have received from you, have been clearly mentioned by me in this “Check List, You preserve this Check List with you”. No suggestion was given to P.W.1 that the original Form A and and Form B singed in ink by Shri Nabeen Patanaik, President of Biju Janata Dal were not filed in the 1st set of Nomination. On perusal of the evidence of witness no.1 for the Respondent (Respondent himself), it is found that he has specifically stated on oath that he was not present in the office room of the Returning Officer while Sri Ranendra Pratap Swain filed his Nomination. As such, he could not say whether he filed the 1st set of Nomination along with other original documents, including Form-A and Form-B. Similarly, Court witness No.1, the Returning Officer in his evidence, could not positively say that Ranendra Pratap Swain did not file original Forms A and Form B signed in ink. He specifically stated that in case it had come to his notice that Form A and Form B were not signed by the authorized signatory in ink, he would have endorsed it on the bottom of the Check List and asked the candidate to file the original ink signed copy of the said forms within time. Admittedly, there was no such endorsement in both the Check Lists-original and the duplicate, marked as Exhibits 11 and 22. Of course, in his evidence, Court witness No.1 has stated that he examined the Nomination along with the required documents from technical stand point only. It was not his duty to examine the correctness or validity of the documents at the time of filing the same. On 6.4.2009, during scrutiny of the Nomination along with other required documents, he came to know that Sri Ranendra Pratap Swain did not file the original Form-A and Form-B signed in ink, instead he filed the Xerox copies thereof. Since he had filed the Nomination along with all required documents, he did not endorse in the Check List indicating that he was required to file any document. 8. Learned senior counsel, Sri B.Mishra appearing for the Election Petitioner, Ranendra Pratap Swain submitted that as found from the evidence of P.W.1, the proposer of Ranendra Pratap Swain, with respect to first set of Nomination, since his signature in the Nomination was partially effaced by coming in contact with sweat while handling the documents, the Returning Officer asked him to put another signature and accordingly, he put his second signature. When confronted to the Court Witness No.1, he failed to recollect the same. But the Nomination in Ext.4 shows that P.W.1, Rabindra Rout has put two signatures in the space meant for signature of proposer and that one of the signatures has been partially effaced. This shows that the Returning Officer meticulously examined the Nomination and the accompanying documents. The Returning Officer has specifically stated in his evidence that he can distinguish between a original document and the Xerox copy thereof. According to Mr. Mishra the Returning Officer did not make any endorsement in the Check Lists, marked Exts.11 and 22 because Form A and Form B were filed in original. 9. Mr. Mishra further submitted that as per para 22, Chapter-V of the Hand Book of Returning Officer, after 3 P.M. on each day between the date of notification and the last date for making nominations, the Returning Officer is required to publish on his notice board a notice of the Nomination Papers presented before him on that date in Form 3-A. In the instant case, on 4.4.2009, the Returning Officer duly notified the same in Form-3 A (Ext.42/f) indicating under column No.6 thereof that the election petitioner, Ranendra Pratap Swain is the nominee of Biju Janata Dal. So, he must have verified Form-A and Form-B. 10. Mr. Mishra further submitted that again as required under para-29.1 Chapter-V of the Hand Book of Returning Officer and the instruction issued by the Election Commission of India, immediately after the last date and time fixed for filing Nomination Papers, the Returning Officer is duty bound to submit the consolidated “List of Nominated Candidates-Checks If”, in the prescribed formant to the Chief Electoral Officer of the State and other Statutory Authorities including Election Commission of India. In the case at hand, the Returning Officer submitted the consolidated “List of Nominated Candidates-Checks If”, (Ext-44), to the Chief Electoral Officer of Orissa and other Statutory Authorities, where at Column No.4 against the name of Shri Ranendra Pratap Swain, the symbol “Conch” has been mentioned. With regard to political party affiliation, the Returning Officer mentioned in column no.5 of Ext.44/f that he was set up by “Biju Janata Dal”. He has also endorsed in Column No.6 thereof as “Yes” meaning thereby that he received Form A and Form B from Ranendra Pratap Swain by 3.00 P.M. dated 4.4.2009. He has also endorsed as “Main Candidate” in column No.7 of the said document, thereby indicating that Shri Ranendra Pratap Swain was the main candidate set up by Biju Janata Dal. According to Mr. Mishra, the Returning Officer must have verified Form A and Form B, before he filled up column Nos.4 to 7 of the consolidated List of Nominated Candidates-Checks If”. So, according to him, it is clearly established that after verifying Form A and Form B of the Election Petitioner, Ranendra Pratap Swain carefully and being satisfied that he submitted the original Form A and Form B, duly signed in ink by the authorized signatory of Biju Janata Dal, the Returning Officer mentioned the details in the above Statutory Form and submitted the same to the Statutory Authorities. He further submitted that Exts 11,22 and 42/f,43 and 44 are all statutorily maintained documents being prepared by a public officer in due discharge of his public duty. So their probative value is very high. In support of his submission, he relied on the decision State of Bihar Vs. Sri Radha Krishna Singh & Others, AIR 1983 SC, page-684. 11. Mr. Palit, learned counsel appearing for the sole Respondent contended that at the stage of filing of Nomination Papers, the Returning Officer is required to only make a preliminary examination of the same and no detailed scrutiny is required at that stage. All that is required at that stage, is the disclosure by the candidate of the documents he has filed. Check List is issued to a candidate as proof of the documents disclosed by him to have been filed along with the Nomination papers. It does not prove the genuineness and correctness of the documents referred to in it. Had it been the intention of the Legislature requiring the Returning Officer to conduct a detailed enquiry at the stage of filing of the Nomination papers, then there was no need of inserting Section 36 to the Representation of the People Act, 1951 which envisages about scrutiny of such documents. In the instant case, the Returning Officer has rightly stated on oath before this court that he did not verify the validity or genuineness of the documents accompanied with the Nomination at the stage of filing of the same. So according to learned counsel for the Respondent, only because the Check List was issued showing receipt of documents filed by the election petitioner, Ranendra Pratap Swain without any endorsement below it, it would not confirm that original ink signed Form A and Form B were filed. Similarly, the information given in Form 3A, marked as Ext 42/f and the consolidated “List of Nominated Candidates-Checks If” marked as Ext 44 cannot confirm that original Form A and Form B signed in ink were filed. He further submitted that no averment was made in either of the election petitions with regard to Form 3A and the Consolidated “List of Nominated candidates-Checks If”. So, in absence of such averment in the pleadings, the evidence with regard to form 3A and the consolidated “List of Nominated Candidates-Checks If”, cannot be relied upon. 12. Learned counsel appearing for the sole respondent further submitted that P Ws 1 and 2 in their evidence in affidavit stated that, while handing over the Check List on 4.4.2009 at 11.45 A.M. to Shri Ranendra Pratap Swain, the Returning Officer said that “whatever original forms and documents that you have submitted and I have received from you have been clearly mentioned by me in the Check List, you preserve the Check List with you.” But there is no pleading to that effect. So, the same cannot be relied upon. 13. As found from the evidence of P.Ws 1 and 2, the latter filed four sets of Nomination along with other accompanying documents. In the 1st set of Nomination Papers, he filed original ink signed Form A and Form B. Accordingly, the Returning Officer issued the Check List to Sri Ranendra Pratap Swan. They further deposed that while handing over the Check List, the Returning Officer stated that “whatever original forms and documents that you have submitted and I have received from you have been clearly mentioned by me in the Check List. You preserve the Check List with you. If in fact the Returning Officer had stated so, it being a material fact, the same should have been averred in the election petition. In absence of pleading this part of evidence of P.Ws 1 and 2 cannot be relied upon. According to the evidence of Returning Officer, on examining the documents on technical stand point, he found the election petitioner, Sri Ranendra Pratap Swain to have filed all required documents and accordingly he issued the Check List marked Ext 22 to him. He fairly admitted in his evidence that he can distinguish a Xerox copy from its original. He further deposed that had it come to his notice that Sri Ranendra Pratap Swain filed the Xerox copies of the original ink signed Form A and Form B, he would have endorsed it in the bottom of the Check List and directed him to file the original ones. Again on 4.4.2009 after the time fixed for filing the Nomination Papers was over, he prepared copy of those documents in Form 3A to publish in the notice board. At that time also he could not detect the filing of Xerox copies of the original ink signed Form A and Form B. Furthermore, when he prepared the consolidated “List of Nominated Candidates-Checks If”, he could not detect the so called defect. He mentioned the symbol ”Conch” in the appropriate column of the said form so also the name of political party, which set up the candidate, Sri Ranendra Pratap Swain. Since the signature of P.W.1 the proposer of Ranendra Pratap Swain, partially got effaced, the Returning Officer asked him to put another signature and accordingly he did it. When the Returning Officer was alive to find out an effaced signature in the Nomination, it appears some what fishy how he failed to detect the Xerox copies of the original ink signed Form A and Form B, if filed. The contention of learned counsel for the respondent that there was no pleading with regard to Form 3A and consolidated “List of Nominated Candidates-Checks If” in either of the election petitions and as such the same cannot be relied upon cannot be accepted. It is the fundamental rule of pleadings that pleading must contain a statement of the material facts, but not the evidence by which they are to be proved. In the present case, it has been averred in the election petitions that Shri Ranendra Pratap Swain filed the Nomination along with required documents including original Form A and Form B ink signed, before the Returning Officer. Moreover, Form 3A and consolidated “List of Nominated Candidates-Checks If” have been admitted as Exts.42/f and 44 respectively without objection. So their validity cannot be questioned. As per the decision State of Orissa and others (supra) their probative value is also very high. Even if those documents were not referred to in the election petitions, the evidence led in that respect can be accepted. 14. No doubt at the time of filing of Nomination, the Returning Officer is not required to scrutinize the Nomination and the accompanying documents in minor details, but he is duty bound to examine the same on technical stand point. Now the pertinent question is whether he was expected to examine whether the original ink signed Form A and Form B were filed, while examining the Nomination Paper along with the accompanying documents, on technical stand point. In my considered opinion, he had to do so, particularly when he deposed that had it come to his notice that Sri Ranendra Pratap Swain filed the Xerox copies of the original ink signed Form-A and Form-B, he would have endorsed it in the bottom of the Check List and directed him to file the original ones. At this stage Mr. Palit, learned counsel for the respondent submitted that unless, an election petitioner fully established his case, it would not be proper to set aside the election. In support of his submission, he relied on the decision in the case of Ram Phal Kundu vs. Kamal Sharma, AIR 2004 Supreme Court 1657, where the apex Court held as follows:- “Therefore, unless the election petitioner fully established his case, it will not be legally correct to set aside the election of the appellant.” As found from the evidence of P.Ws. 1 and 2 the latter filed the original ink signed Form A and Form B in his 1st set of Nomination. This part of their evidence could not be shaken. Even no suggestion was given to P.W.1 that P.W.2 did not file original ink signed Form A and Form B in his 1st set of Nomination. So, the above decision is not applicable to the present case. The Returning Officer has admitted in his evidence that the Nominations along with all the accompanying documents of all the eight candidates were Xeroxed outside in Anand Xerox of Athagarh. He has also admitted that on 4.4.2009 all the four sets of Nomination papers of Sri Ranendra Pratap Swain were xeroxed to display the same in his Notice Board. The possibility that, in the process the original ink signed form A and Form B were inadvertently exchanged for the Xerox copies thereof, cannot be ruled out. Under such premises, in my considered opinion, Sri Ranendra Pratap Swain had filed the original Form-A and Form-B duly signed in ink by the authorized person with the 1st set of his Nomination. Accordingly, issue no.6 is answered in affirmative. 15. Issue Nos.3 and 5. It transpires from the evidence of P.Ws 1 and 3 that the latter was authorized by the election petitioner, Sri Ranendra Pratap Swain, in writing as per Ext.46 to represent him at the time of scrutiny of his Nomination Papers. Scrutiny of Nomination Papers in respect of 89- Athagarh Assembly Constituency continued from 1.45 P.M. to 2 P.M. on 6.4.2009. No objection was raised to the Nomination of election petitioner, Ranendra Pratap Swain, by any of the candidates or their proposers or agents. The Returning Officer himself raised suo-motu objection that the original ink signed Form A and Form B were not filed by Shri Ranendra Pratap