Case: Rajendra Kumar Meshram Vs. Vanshmani Prasad Verma

the returned candidate is liable to be declared void if, inter alia, he was not qualified for membership of Parliament or the State Legislature as may be. Section 5 of the 1951 Act deals with qualifications for membership of a Legislative Assembly of a State which, inter alia, requires a candidate to be an elector of any Assembly constituency of the State. To declare an election void under Section 100(1)(a), it must, therefore, be established that the returned candidate is not a voter of any assembly constituency of the State.12. After the receipt of nomination, the election petitioner has objected to the acceptance of the nomination of the appellant-returned candidate on the ground that the returned candidate was a Government servant and therefore disqualified from contesting the election. This was rejected by the Returning Officer on 11.11.2013 holding that the returned candidate had duly submitted his resignation which was accepted before the date of filing of nomination. No objection to the effect that the returned candidate was not qualified to contest the election as he was not a voter of any assembly Constituency of the State was raised in the objection filed. Neither was any objection taken to the effect that the returned candidate was not eligible to participate in the election as he had not furnished the electoral roll of the Constituency in which he was a voter or a certified copy thereof. However, in the election petition filed, it was pleaded in para 1.11 of the election petition, (extracted above) that the returned candidate had “failed to furnish a certified copy of the voter list to entitle him to contest the election from Devsar constituency as he is registered voter of 80, Singrauli constituency and without filing the certified copy of relevant part of voter list he was not eligible to contest from other constituency.” There was no pleading at all to the effect that the appellant is not a voter of any assembly constituency and therefore is not qualified.13. From the above, it is clear that it was not the case of the respondent-election petitioner that the appellant-returned candidate was not qualified to contest the election. It is only before this Court, and that too in the oral arguments made, that it has been urged, by relying on the order of the High Court, that the returned candidate was not qualified to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the High Court.14. The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that a candidate’s name and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.15. In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act.16. Though a number of precedents have been cited on behalf of the respondent-election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal.17.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]is clear that it was not the case of the respondent-election petitioner that the appellant-returned candidate was not qualified to contest the election. It is only before this Court, and that too in the oral arguments made, that it has been urged, by relying on the order of the High Court, that the returned candidate was not qualified to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the Hightrial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that aname and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest theview of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951a number of precedents have been cited on behalf of the respondent-election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal.