Case: Rajendra Kumar Meshram Vs. Vanshmani Prasad Verma

2. On a reading of the election petition filed by the respondent No.1, it would appear to us that several grounds were urged to invalidate the election in question. According to the respondent-election petitioner, one of the nominations filed by him as a candidate of the Indian National Congress Party was wrongly rejected on the ground that the symbol allotment letter was submitted by the election petitioner after the stipulated time. However as two other nominations filed by the respondent-election petitioner as an independent candidate was accepted, he contested the election in which he lost. Consequently, he challenges the rejection of his nomination as a Indian National Congress Party candidate as being wrongful. Apart from the above ground, the election petition was also filed alleging that the appellant-returned candidate was a government servant. In addition to the above, it was pleaded that the appellant-returned candidate had failed to furnish, along with the nomination paper, a copy/certified copy of the electoral roll of No.80 Singrauli constituency in which electoral roll his name was claimed to be appearing against serial No.118. According to the election petitioner on account of the aforesaid omission the returned candidate was not eligible to participate in the election. His nomination, therefore, was wrongly accepted.3. The High Court answered the first two questions in favour of the returned candidate. However, insofar as the third question set forth above is concerned, the conclusion of the High Court is adverse to the returned candidate. In this connection the High Court came to the conclusion that the returned candidate had not filed the electoral roll or certified copy thereof of No.80 Singrauli Constituency and therefore the returning officer had committed an illegality in accepting the nomination of the returned candidate and in not rejecting the same on account of non-compliance of Sections 33(5) and 36(2)(b) of the Representation of People Act, 1951 (For short,). On the said basis the High Court came to the conclusion that the election of the returned candidate was liable to be declared void under Section 100(1)(a) along with Section 100(1)(d)(i) of the 1951 Act. Consequential directions therefore have been issued. Aggrieved this appeal has been filed.

Reasoning:
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.