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    Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 888 OF 2009

Balram Singh Yadav@ Balram Yadav        …  Appellant

Versus

Abhay Kumar Singh     …Respondent

J U D G M E N T

Dipak Misra, J.

In  this  appeal,  the  question  that  is  required  to  be  

determined is whether the High Court by the order impugned  

was justified in invalidating the election of the appellant who  

was elected as a member of Bihar Legislative Assembly in the  

election held on 10.7.2003.

2. Bereft  of  unnecessary  details,  the  facts  which  are  

essential  to  be  stated  are  that  the  respondent  filed  his  

nomination  paper  along  with  fifty  others  to  enter  into  the  

contest as the member of Bihar Legislative Council  from 20-

Saharsha-cum-Medhepura-cum-Supaul Local Authority Election  

Constituency.    The  Returning  Officer,  while  accepting  the  

nomination  papers  of  all  the  candidates,  rejected  the  

nomination paper of the respondent on the ground that he had

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not filed the relevant electoral roll  which was required to be  

done, for he belonged to another constituency.   

3. After  the  election  was  over,  the  respondent  instituted  

Election  Petition  No.  4  of  2003  in  the  High  Court  of  Patna  

seeking a declaration that  rejection of  his  nomination paper  

was incorrect and inappropriate, and hence, the election of the  

elected candidate was void.   Challenge to the rejection was  

based on two counts, namely, that he had filed the requisite  

voters’  list  as  contemplated  under  Section  33(5)  of  the  

Representation of the People Act, 1951 (for brevity, ‘the Act’)  

and second, the Returning Officer, at the time of scrutiny, had  

not pointed out the defect to him for which he was deprived of  

the opportunity of rectifying the mistake.

4. In  the  election  petition  it  was  asseverated  that  the  

Returning  Officer  accepted  the  electoral  roll  for  other  

candidates for the year 1998, but as far as the respondent was  

concerned,  there  was  insistence  for  production  of  the  valid  

electoral  roll  as  on  1.1.2002  which  was  not  essential.   The  

stand  and  stance  put  forth  by  the  election  petitioner  was  

seriously  controverted  by  the  present  appellant  on  many  a  

ground including the one that in the absence of any pleadings  

in the petition to substantiate the fact his contesting in  the

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election  would  have  materially  affected  the  results  of  the  

election,  the  election  petition  was  totally  devoid  of  any  

substance.

5. The  High  Court  framed  the  following  four  issues  for  

adjudication:

“(1) Whether  this  election  petition,  as  framed  is  maintainable?

(2) Whether this election petition is vitiated by non- joinder of necessary parties?

(3) Whether the nomination paper of the petitioner  was  improperly  rejected  by  the  Returning  Officer?

(4) Whether the petitioner is entitled to any relief  or reliefs?”

6. Both  the  parties  adduced  oral  evidence  and  marked  

certain documents as exhibits.  The High Court treated issue  

No.  3  as  the  principal  issue  and  the  issue  No.  4  as  

consequential  to  it.   The  respondent  brought  on  record  the  

order of rejection passed by the Returning Officer as Ext. P-2.  

There  was  no  dispute  before  the  High  Court  that  the  first  

respondent did not belong to the constituency and, therefore,  

he was required to comply with Section 33(5) of Act.  The High  

Court, adverting to the said aspect, observed as follows: -

“Petitioner does not deny that he had filed an extract  of 1995 electoral roll and even in the electoral roll of  1998  the  Part  and  Serial  Number  where  the  petitioner’s  name  figured  was  identical.   If  the  Returning Officer had bothered to turn the pages of  1998 electoral roll at the time of scrutiny then the

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above declaration of the petitioner in the nomination  paper would have stood verified and corroborated.  But then the reason for rejection of the nomination  of the petitioner is  not that the petitioner had not  annexed 1998 electoral roll.  The reason assigned is  that he did not have the Aharta as on 1.1.2002 and  he had not annexed Styapit (certified) extract of the  electoral roll in the regard.”

7. Thereafter, considering the oral evidence, the High Court  

opined thus: -

“The Court also decides to have a look at the oral  evidences which have been adduced on this score.  Five  witnesses  were  produced  on  behalf  of  the  petitioner.  P.W. 1 is the petitioner himself where he  has stated that he was one of the candidates for the  “Constituency” of the Local Body and was a voter of  110-Raghopur  Assembly  Constituency.   He  stated  that  his  nomination  papers  were  illegally  rejected.  He filed two sets of nomination papers which were  duly signed by him and his proposers.  In one of the  nomination  papers  a  detailed  reason  for  rejection  was recorded but  in  the  second nomination  paper  the  word  “Aswikrit  Karta  Hun”  (rejected)  only  mentioned.   He  has  furnished  the  details  of  his  name,  the  Part  and  the  Serial  Number  of  110- Raghopur Assembly Constituency which is reflected  in the voter list of 1998.  His name figured at serial  no. 444 in Part 11.  He also states that a demand of  voter  list  for  the  year,  2002  was  made  from him  orally  but  there  was  no  voter  list  of  the  year  available to his knowledge.  He also denied that he  had received any kind of memo much less memo no.  10.   He  does  accept  that  he  was  personally  not  present at the time of scrutiny but he had authorized  one Sri Prabhakar Singh, Advocate to participate in  the same but he was not allowed to go to the place  of scrutiny.”

8. We have heard Mr. Nagendra Rai, learned senior counsel  

for  the  appellant.   Despite  service  of  notice,  there  is  no

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appearance on behalf of the respondent.

9. To appreciate the controversy from a proper perspective,  

it is apposite to refer to Section 100 of the Act.  It reads as  

follows:-

“100.  Grounds  for  declaring  election  to  be  void.- (1) Subject to the provisions of sub-section (2)  if the High Court is of opinion- (a) that  on  the  date  of  his  election  a  returned  

candidate was not qualified, or was disqualified, to  be chosen to fill the seat under the Constitution or  this  Act  or  the  Government  of  Union  Territories  Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed  by a returned candidate or his election agent or by  any other person with the consent of a returned  candidate or his election agent; or

(c) that  any  nomination  has  been  improperly  rejected; or

(d) that the result of the election, in so far as it  concerns  a  returned  candidate,  has  been  materially affected –

(i) by  the  improper  acceptance  of  any  nomination, or

(ii) by any corrupt practice committed in the  interests of the returned candidate by an  agent other than his election agent, or

(iii) by  the  improper  reception,  refusal  or  rejection of  any vote or  the reception of  any vote which is void, or

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(iv) by any non-compliance with the provisions  of the Constitution or of this Act or of any  rules or orders made under this Act,

the  High  Court  shall  declare  the  election  of  the  returned candidate to be void.”

10. Be it stated, before this provision was incorporated by the  

Representation  of  the  People  (2nd amendment)  Act,  1956,  

Section 100(1)(c) read as follows:-

“If  the Tribunal  is of opinion that the result of  the  election  has  been  materially  affected  by  the  improper acceptance or rejection of any nomination,  the Tribunal shall declare the election to be wholly  void.”

Interpreting the said provision, the Constitution Bench in  

Surendra Nath Khosla and another v. S. Dalip Singh and  

others1 ruled thus:-

“It appears that though the words of the section are  in general terms with equal application to the case  of  improper  acceptance,  as  also  of  improper  rejection of a nomination paper, case law has made  a distinction between the two classes of cases. So  far as the latter class of cases is concerned, it may  be pointed out that almost all the Election Tribunals  in the country have consistently taken the view that  there  is  a  presumption  in  the  case  of  improper  rejection  of  a  nomination  paper  that  it  has  materially affected the result of the election. Apart  from the practical difficulty, almost the impossibility,  of demonstrating that the electors would have cast  their votes in a particular way, that is to say, that a  substantial  number of them would have cast their  votes in favour of the rejected candidate, the fact  that one of several candidates for an election had  been  kept  out  of  the  arena  is  by  itself  a  very  material  consideration.  Cases  can  easily  be  

1  AIR 1957 SC 242

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imagined where the most desirable candidates from  the  point  of  view  of  electors  and  the  most  formidable candidate from the point of view of the  other candidates may have been wrongly kept out  from  seeking  election.  By  keeping  out  such  a  desirable  candidate,  the  officer  rejecting  the  nomination paper may have prevented the electors  from voting for the best candidate available. On the  other hand, in the case of an improper acceptance  of  a  nomination  paper,  proof  may  easily  be  forthcoming  to  demonstrate  that  the  coming  into  the arena of  an additional  candidate has not  had  any effect on the election of the best candidate in  the  field.  The  conjecture  therefore  is  permissible  that the legislature realising the difference between  the  two  classes  of  cases  has  given  legislative  sanction to the view by amending Section 100 by  the  Representation  of  the  People  (Second  Amendment) Act, 27 of 1956, and by going to the  length of providing that an improper rejection of any  nomination paper is conclusive proof of the election  being void. For the reasons aforesaid, in our opinion,  the  majority  decision  on  the  fourth  issue  is  also  correct.”

11. After the amendment, a three-Judge Bench in  Mahadeo  

v. Babu Udai Partap Singh and others2,  after referring to  

the  decision  in  Surendra  Nath  Khosla (supra),  opined  as  

follows:-

“11. This  position  has  now  been  clarified  by  the  Legislature itself by amending S. 100 in 1956. The  amended  S.  100(1)(a),  (b)  and  (c)  refer  to  three  classes of cases where the election is set aside on  proof of facts enumerated in the said clauses. Clause  (a) refers to a case where a returned candidate was  not qualified, or was disqualified, to be chosen to fill  the  seat  under  the  Constitution  or  this  Act  at  the  

2  AIR 1966 SC 824

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date of his election. As soon as this fact is proved,  his election is  set aside.  Similarly,  under Cl.  (b),  if  any  corrupt  practice  is  shown  to  have  been  committed by a returned candidate or his election  agent or by any other person with the consent of a  returned candidate or his election agent, the election  of the returned candidate is set aside and declared  void. Likewise, Cl. (c) provides that the election of a  returned  candidate  shall  be  declared  void  if  it  is  shown  that  any  nomination  has  been  improperly  rejected. It would thus be seen that the view which  the  Election  Tribunals  and  the  Courts  had  been  consistently  taking  in  dealing  with  the  question  about  the  effect  of  the  improper  rejection  of  any  nomination  paper,  has  been  confirmed  by  the  Legislature and now, the position is that if it is shown  that at any election, any nomination paper has been  improperly  rejected,  the  improper  rejection  itself  renders the election void without any further proof  about the material effect of this importer rejection.”

12. In  view  of  the  abovestated  enunciation  of  law,  the  

submission that there was no pleading and no evidence was  

adduced to establish that the election of the elected candidate  

was materially  affected,  is  sans  substance.   Once the  court  

comes to the conclusion that the nomination paper had been  

improperly rejected, it is obliged in law to declare the election  

void.   

13. Presently, we shall proceed to deal with the issue whether  

the  High  Court  was  justified  in  accepting  the  plea  of  the  

respondent that his nomination paper was improperly rejected.  

In this regard, reference to Section 33(5) of the Act is seemly.

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It reads as follows: -

“”Where the candidate is  an elector  of  a  different  constituency,  a  copy  of  the  electoral  roll  of  that  constituency  or  of  the  relevant  part  thereof  or  a  certified  copy  of  the  relevant  entries  in  such  roll  shall,  unless  it  has  been  filed  along  with  the  nomination paper, be produced before the returning  officer at the time of scrutiny.”

14. The  said  provision  came  to  be  interpreted  in  B.  

Dandapani  Patra  v.  Returning  Officer-cum-Sub-

Divisional Officer, Berhampur and others3, wherein a two-

Judge  Bench  placed  reliance  on  Ranjit  Singh  v.  Pritam  

Singh4 and came to hold as follows: -

“… it has been held that when Section 33(5) of the  said Act refers to a copy of the relevant part of the  electoral roll, it means a part as defined in Rule 5 of  the said Rules of 1960.  The complete copy would  carry the various amendments made in the roll  to  enable  the  Returning  Officer  to  see  whether  the  name of the candidate continues in the roll.”

15. The facts of the aforesaid decision would show that unless  

the  current  electoral  roll  is  filed  along  with  the  nomination  

paper,  that  would  tantamount  to  non-compliance  of  Section  

33(5) of the Act.  In the instant case, on a perusal of evidence  

of PW-1, the respondent herein, and the Returning Officer, it is  

perceptible that the said respondent had not filed the electoral  3  (1990) 1 SCC 505 4  (1996) 3 SCR 543

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roll of 1998 which was the latest electoral roll as on 1.1.2002.  

On the date of scrutiny, the respondent was absent.  The High  

Court, as noticeable, has referred to the order of rejection of  

nomination  paper  by  the  Returning  Officer  and  opined  that  

none had filed the electoral roll of 1.1.2002 and, therefore, the  

nomination paper could not have been rejected.  The aforesaid  

view  is  the  resultant  of  erroneous  perception  of  fact.   The  

ground that was indicated by the Returning Officer was that  

the valid electoral roll as on 1.1.2002 had not been filed.  It has  

come in the evidence that no electoral roll  was prepared on  

that date and the latest electoral roll was that of 1998.  The  

respondent had not filed the same.   In fact, he had filed the  

electoral roll of 1995.  It is also clear from the evidence that at  

the time of scrutiny, he was not present.   

16. In view of the foregoing analysis, we have no scintilla of  

doubt  that  the  High  Court  has  fallen  into  serious  error  by  

setting aside the election of the appellant and, accordingly, we  

set aside the judgment of the High Court, treat the election of  

the appellant as valid and further direct that the appellant shall  

get the entire remuneration for the period for which he was  

elected as a member of the legislative Council and we say so

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on  the  basis  of  the  Constitution  Bench  decision  in  Kirpal  

Singh, M.L.A. v. Uttam Singh and another5.

17. The  appeal  is  accordingly  allowed.   There  shall  be  no  

order as to costs.

………………………..J. [Dipak Misra]

………………………..J. [N.V. Ramana]

New Delhi; May 13, 2014.

5  (1985) 4 SCC 621