REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 4956 OF 2010

Ramesh Rout …. Appellant

Versus

Rabindra Nath Rout          ….Respondent

WITH

CIVIL  APPEAL NO. 4962 OF 2010

JUDGMENT

R.M. Lodha, J.  

The  returned  candidate  —  Ramesh  Rout  –  whose  

election to the 14th Orissa Legislative Assembly from 89-Athagarh  

Assembly Constituency  has been set aside by the High Court of  

Orissa has preferred these two appeals under Section 116A read  

with Section 116C of the Representation of the People Act, 1951 (for  

short, ‘the 1951 Act’). 1

2. The  Election  Commission  of  India  (for  short,  

‘Commission’)  in  order   to  constitute  14th  Legislative  Assembly  

announced  general elections in the State of Orissa to be held in two  

phases  on April  16, 2009 and April  23, 2009. Following this, the  

Governor  of  the State  of  Orissa  in  exercise  of  powers  conferred  

under Section 5(2) of the 1951 Act issued  a notification which was  

published  in  the  official  gazette  on  March  28,  2009.   The  89  –  

Athagarh  Assembly  constituency  is  one  of  the  147  Assembly  

constituencies in the State of Orissa and is ‘General’ constituency.  

The Commission  appointed the following schedule of election :

“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.”

3. On April 4, 2009, at 11.25 A.M., the respondent in Civil  

Appeal No. 4962 of 2010 –  Ranendra Pratap Swain  (hereinafter  

referred to as ‘proposed candidate’)  filed four sets of  nomination  

papers  for  89-Athagarh Assembly constituency as a candidate  of  

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Biju Janata Dal (‘BJD’) – a registered and recognized political party  

in the State of Orissa  before the Returning Officer.  Seven other  

candidates including the present appellant also filed their nomination  

papers  at  the  said  election.  The  check  list  (ticked  original)  was  

issued by the Returning Officer with his signature to the proposed  

candidate at 11.45 a.m. A copy of the check list (ticked duplicate)  

was retained by the Returning Officer.  

4. On the appointed date (i.e. April 6, 2009) and time for  

scrutiny  of  nominations,  the  Returning  Officer  rejected  the  

nomination papers of the proposed candidate on the ground that the  

Form A and Form B filed by the proposed candidate along with his  

first  set  of  nomination  paper  were  not  duly  signed  in  ink  by  the  

authorized officer of the political party (BJD).

5. Upset with the order of Returning Officer dated April 6,  

2009, rejecting his nomination, the proposed candidate filed a writ  

petition before the Orissa High Court. However, the High Court did  

not  entertain  the  writ  petition  and  directed  him  to  pursue  his  

grievance before  the  Commission or  seek appropriate  relief  after  

election  process  was  over.   The  proposed  candidate  raised  his  

grievance before the Commission but without any success.  

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6. The election to the 89-Athagarh Assembly constituency  

was held as per election schedule and the appellant who contested  

the election as an independent candidate was declared elected.  

7. Two election petitions came to be filed before the Orissa  

High Court challenging the election of the appellant to 89-Athagarh  

Assembly  Constituency.  One  by  the  proposed  candidate  being  

Election  Petition  no.  4  of  2009 and the  other  by the  proposer  –  

respondent in Civil Appeal No. 4956 of 2010 being Election Petition  

no. 6 of 2009. In both election petitions, the election of the appellant  

was challenged on the ground of improper rejection of nomination  

papers of the proposed candidate. It  was averred therein that the  

proposed candidate had filed Form A and Form B signed in ink by  

the  authorized  person  along  with  first  set  of  nomination  paper  

showing that he had been duly sponsored by the BJD to contest as  

a party nominee from 89-Athagarh Assembly constituency and with  

other three sets of nomination, he had filed xerox copies of original  

Forms A and B duly authenticated by a Notary Public. The election  

petitioners raised diverse grounds in  challenging the order  of  the  

Returning  Officer  dated  April  6,  2009  whereby  the  nomination  

papers of the proposed candidate were rejected.    

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8. The appellant  — (respondent  therein)  – contested the  

election  petitions  by  filing  separate  written  statement.  He  raised  

objections about the maintainability of election petitions on facts and  

in  law.  Inter  alia,  it  was denied that  the proposed candidate filed  

original Form-A and Form-B signed in ink by the authorized person  

of BJD as at the time of scrutiny original Form A and Form B were  

not available and the Form A and Form B on record did not contain  

ink signature.  

9. On  the  respective  pleadings  of  the  parties,  the  High  

Court initially framed four issues but later on framed additional issue  

no. 5. The relevant two issues, namely, issue no. 3 and issue no. 5  

read as follows :

“3. Whether the Returning Officer improperly rejected the  nomination  of  the  Election  Petitioner  in  violation  of  the  statutory provisions and rules?

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 exercise of  its constitutional powers and the principles of natural justice  or not?”

10. The election petitioners as well as the returned candidate  

tendered oral and documentary evidence.  On behalf of the election  

petitioners, three witnesses, namely, proposer – Rabindra Nath Rout  

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(PW-1); proposed candidate – Ranendra Pratap Swain (PW-2) and  

authorised agent – Tarani Kanta Biswal (PW-3) were examined.  On  

the other hand, the returned candidate examined himself as RW-1  

and one Magnicharan Rout as (RW-2). The Returning Officer was  

examined  by  the  Court  as  its  witness  (CW-1).  The  documents  

tendered in evidence were marked separate exhibits.

11. The High Court also called for all the original documents  

pertaining  to  the  scrutiny  of  nomination  papers  for 89-Athagarh  

Constituency  and  87-Badamba  Constituency.  We  shall  refer  to  

relevant documentary evidence appropriately wherever necessary.  

12. The  High  Court  on  hearing  the  parties,  at  the  time  of  

decision in the election petitions,  framed an additional  issue no. 6  

namely, whether the election petitioner (proposed candidate) filed the  

original  Form A and Form B duly  signed in  ink  by the authorized  

person with  the first  set  of  his  nomination paper.  The High Court  

answered issue nos. 3, 5 and 6 in the affirmative and   allowed both  

election petitions on June 23, 2010 and declared the election of the  

appellant  null  and  void.  The  High  Court  declared  that  a  casual  

vacancy is created relating to 89-Athagarh Assembly Constituency  

and the Commission was directed to conduct fresh election in respect  

of the said constituency in accordance with law.      

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13. It  is  from  this  judgment  that  these  two  appeals  have  

arisen.

14. We have heard Mr. Gopal Subramanian, learned senior  

counsel  for  the  appellant  and Mr.  K.K.  Venugopal,  learned senior  

counsel for the proposed candidate.

15. The  Returning  Officer  plays  an  important  role  in  the  

election management and to ensure that there is no scope left for any  

complaint,  the  Commission  has  issued  a  handbook  for  Returning  

Officers (for short, ‘the handbook’)  The  handbook,  as it states, has  

been designed to give to the Returning Officers the information and  

guidance which they may need in performance of their  functions; to  

acquaint  them with up-to-date rules and procedures prescribed for  

the conduct  of  elections and to  ensure that  there is  no scope for  

complaint  of  partiality  on  the  part  of  any  official  involved  in  the  

election management. We shall refer to the relevant provisions of the  

handbook  a  little  later.   The  handbook  does  not  have  statutory  

character and is in the nature of guidance to the Returning Officers.  

16. By  virtue  of  a  notification  dated  February  10,  2009  

(Exhibit 10) issued by the Commission, for the first time, the issuance  

of  check  list  to  a  candidate  filing  nomination  paper  has  been  

introduced. Prior thereto, there was no such provision. It is provided  

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that  in  respect  of  each  candidate,  the  Returning  Officer  should  

maintain, in duplicate, the check list of the documents/requirements  

filed by the candidates.  When a candidate files nomination paper, the  

Returning Officer shall indicate in the second column of the check list  

whether  the  concerned  documents  have  been  filed  or  other  

requirements fulfilled. If any of the documents has not been filed, it  

requires the Returning Officer to clearly state in the bottom of the  

check list, indicating the time limit by which such document/s can be  

submitted.  The check list in two sets with all requirements indicated  

is  needed  to  be  signed  by  the  Returning  Officer  as  well  as  the  

candidate.  The  check  list  (marked  original)  is  handed over  to  the  

candidate/proposer  who  files  nomination  paper,  while  check  list  

(marked copy) is retained by the Returning Officer. The notification  

states that the copy of the check list will serve the dual purpose of  

acknowledging the receipt of the documents submitted as well as of  

notices as directed in the handbook.   It is further provided that no  

separate notice is required to be given to the candidate in respect of  

the items mentioned in the check list. If and when a document is filed  

subsequent to filing of nomination, an acknowledgment to that effect  

is issued to the candidates, namely, mentioning the date and time at  

which it is filed and this is also indicated in the appropriate place in  

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the check list retained by the Returning Officer. The proforma of the  

check list has also been notified with the notification dated February  

10, 2009.  

17. Section  33  of  the  1951  Act  makes  provision  for  

presentation  of  nomination  paper  and  requirements  for  a  valid  

nomination.   To  the  extent  it  is  relevant  for  the  purposes  of  the  

present case, it is reproduced as follows :

“S. 33.  Presentation of nomination paper and requirements  for  a  valid  nomination.—(1)  On  or  before  the  date  appointed under clause (a) of section 30 each candidate  shall,  either  in  person  or  by  his  proposer,  between  the  hours of eleven o' clock in the forenoon and three o' clock  in the afternoon deliver to the returning officer at the place  specified in this behalf in the notice issued under section  31 a nomination paper completed in the prescribed form  and  signed  by  the  candidate  and  by  an  elector  of  the  constituency as proposer:  

xxx xxx xxx

(4) On  the  presentation  of  a  nomination  paper,  the  returning officer  shall  satisfy himself  that  the names and  electoral roll numbers of the candidate and his proposer as  entered  in  the nomination  paper  are  the  same as those  entered in the electoral rolls:  

Provided that no misnomer or inaccurate description  or clerical, technical or printing error in regard to the name  of the candidate or his proposer or any other person, or in  regard to any place, mentioned in the electoral roll or the  nomination paper and no clerical, technical or printing error  in regard to the electoral roll numbers of any such person  in the electoral roll or the nomination paper, shall affect the  full operation of the electoral roll or the nomination paper  with respect to such person or place in any case where the  

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description in regard to the name of the person or place is  such  as  to  be  commonly  understood;  and  the  returning  officer  shall  permit  any  such  misnomer  or  inaccurate  description  or  clerical,  technical  or  printing  error  to  be  corrected  and  where  necessary,  direct  that  any  such  misnomer,  inaccurate  description,  clerical,  technical  or  printing error in the electoral roll or in the nomination paper  shall be overlooked.

xxx xxx xxx”

18. Section  35  provides  for  notice  of  nominations  and  the  

time and place for their scrutiny.   

19. The provision concerning scrutiny of nomination is made  

in Section 36 of the 1951 Act. To the extent it is relevant, it reads as  

follows :

“S. 36. Scrutiny of nomination.—(1) On the date fixed for  the  scrutiny  of  nominations  under  section  30,  the  candidates,  their  election  agents,  one  proposer  of  each  candidate, and one other person duly authorized in writing  by each candidate but no other person, may attend at such  time and place as the returning officer may appoint;  and  the returning officer shall give them all reasonable facilities  for  examining  the  nomination  papers  of  all  candidates  which  have  been  delivered  within  the  time  and  in  the  manner laid down in section 33.  

(2) The  returning  officer  shall  then  examine  the  nomination  papers  and  shall  decide  all  objections  which  may be made to any nomination and may, either on such  objection  or  on  his  own  motion,  after  such  summary  inquiry,  if  any,  as  he  thinks  necessary,  reject  any  nomination on any of the following grounds:-

(a) xxx xxx xxx

(b) that there has been a failure to comply with any of the  provisions of section 33 or section 34; or  

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(c) that the signature of the candidate or the proposer  on the nomination paper is not genuine.

xxx xxx xxx

(4) The  returning  officer  shall  not  reject  any  nomination paper on the ground of any defect which is not  of a substantial character.

(5) The returning officer shall hold the scrutiny on  the date appointed in this behalf under clause (b) of section  30 and shall not allow any adjournment of the proceedings  except when such proceedings are interrupted or obstructed  by riot or open violence or by causes beyond his control:

Provided that  in  case an objection is  raised by the  returning  officer  or  is  made  by  any  other  person  the  candidate concerned may be allowed time to rebut  it  not  later than the next day but one following the date fixed for  scrutiny, and the returning officer shall record his decision  on the date to which the proceedings have been adjourned.

xxx xxx xxx”

20. The Conduct of  Elections Rules,  1961 (for  short,  ‘1961  

Rules’) have been framed under the 1951 Act. Rule 4 provides that  

every nomination paper presented under sub-section (1) of Section  

33 shall be completed in such one of the  Forms 2A to 2E as may be  

appropriate.  Proviso that follows Rule 4 makes a provision that a  

failure  to  complete  or  defect  in  completing,  the  declaration  as  to  

symbols in a nomination paper in Form 2A or Form 2B shall not be  

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deemed to be a defect of substantial character within the meaning of  

sub-section (4) of Section 36.  

21. Form 2B under Rule 4 is in three parts. Part-I  is to be  

used by a candidate set up by a recognised political party. Part-II is  

required  to  be  filled  by  a  candidate  for  election  to  the  legislative  

assembly not set up by a recognised political party and it provides  

that there should be ten electors of the constituency as proposers.  

Part-III  of  Form 2B is  a declaration to  be made by the candidate  

giving  assent  to  his  nomination.  Clause  (b)(i)  is  applicable  to  a  

candidate who has been set up by a recognised political party with a  

request that symbol reserved for such party be allotted to him. Clause  

(b)(ii),  on the other hand is applicable to a candidate not set up by  

any  registered  recognised  political  party  or  a  candidate  who  is  

contesting the election as an independent candidate. A recognised  

political party means a political party recognised by the Commission  

under the 1968 Order.

22. Rule 5 of the 1961 Rules makes a provision for symbols  

for elections in parliamentary and assembly constituencies.  Rule 10  

of  1961  Rules  provides  for  preparation  of  list  of  contesting  

candidates.  

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23. In exercise of the powers conferred by Article 324 of the  

Constitution of India read with Section 29A of the 1951 Act and Rules  

5 and 10 of the 1961 Rules, the Commission made Election Symbols  

(Reservation  and  Allotment)  Order,  1968  (for  short  ‘1968  Order’).  

Unregistered political  parties are out of its purview.  The registered  

recognized  and  unrecognized  political  parties  and  independent  

candidates are dealt with by the 1968 Order. 1968 Order came to be  

amended by  notification  no.  56/2000/Judl.  III  dated  1st December,  

2000. Para 13 of the 1968 Order is relevant for consideration of the  

present matter. It reads as follows :

“13. When a candidate shall be deemed to be set up by a  political party.—For the purposes of an election form any  Parliamentary  or  Assembly  Constituency  to  which  this  Order applies, a candidate shall be deemed to be set up by  a  political  party  in  any  such  Parliamentary  or  Assembly  Constituency, if, and only if—

(a) the candidate has made the prescribed declaration to  this effect in his nomination paper,

(aa) the candidate is a member of that political party and  his  name  is  borne  on  the  rolls  of  members  of  the  party;

(b) a notice by the political party in writing in Form B, to  that effect has, not later than 3.p.m. on the last date  for  making  nominations,  been  delivered  to  the  Returning Officer of the constituency;

(c) the said notice in Form B is signed by the President,  the Secretary or any other office-bearer of the party,  and  the  President,  Secretary  or  such  other  office  bearer sending the notice has been authorised by the  party to send such notice;

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(d) the name and specimen signature of such authorised  person are communicated by the party, in Form A, to  the Returning Officer of the constituency and to the  Chief Election Officer of the State or Union Territory  concerned, not later than 3 p.m. on the last date for  making nominations; and

(e) Forms A and B are signed, in ink only,  by the said  office-bearer or person authorised by the party:

Provided that no fascimile signature or signature by  means of rubber stamp, etc. of any such office bearer  or authorised person shall be accepted and no form  transmitted by fax shall be accepted.”   

24. Chapter  VI  of  the  handbook  deals  with  the  scrutiny  of  

nominations  by  the  Returning  Officer.  Para  2  emphasises   that  

scrutiny of nomination papers is an important quasi-judicial function  

and the Returning Officer has to discharge this duty with complete  

judicial  detachment  and  in  accordance  with  the  highest  judicial  

standards. Para 6 provides that even if no objection has been raised  

to a nomination paper, the Returning Officer has to satisfy himself  

that the nomination paper is valid in law. If any objection is raised to  

any nomination paper, the Returning Officer has to hold a summary  

inquiry to decide the same and treat the nomination paper to be either  

valid or invalid. It states that brief reasons in support of the decision  

must be set out, particularly, where an objection has been raised or  

the  nomination  paper  has  been  rejected.  Para  7  provides  for  

presumption of validity of every nomination paper unless the contrary  

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is prima facie obvious or has been made out. In case of a reasonable  

doubt, as to the validity of a nomination paper, the benefit of such  

doubt must go to the candidate concerned and the nomination paper  

should be held to be valid.  Para 7 seeks to remind the Returning  

Officer that whenever a candidate’s nomination paper is improperly  

rejected and he is prevented from contesting the election, there is a  

legal presumption that the result of the election has been materially  

affected by such improper rejection and the election is liable to be set  

aside.   Para 9.6 sets out some of the defects which may be treated  

by the Returning Officer as defects of substantial nature.  It, inter alia,  

provides  that  failure  to  submit  written  authorisation  form from the  

political party, within prescribed time and in prescribed form, where a  

candidate claims to have been set up by a national or state party, is a  

defect of substantial nature. Para 10.3 says that the nomination paper  

filed by a candidate claiming to have been set up by a recognised  

national/state party subscribed by only an elector as proposer is liable  

to  be  rejected,  if  a  notice  in  writing  to  that  effect  has  not  been  

delivered  to  the  Returning  Officer  of  the  Constituency  by  an  

authorised office-bearer of that political party by 3 p.m. on the last  

date  for  making  nominations  in  Forms  A  and  B  devised  by  the  

Commission for the purpose under para 13 of the 1968 Order.

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25. In light of the above provisions, particularly Sections 33(1)  

and 36(1) of the 1951 Act, Rule 4 of the 1961 Rules, Part-III of Form  

2B, para 13(e) of the 1968 Order and Forms A and B appended to  

1968 Order and the guidelines issued to the Returning Officers in the  

handbook,  Mr. Gopal Subramanian, learned senior counsel for the  

appellant  submitted  that   where  a  candidate  for  the  election  to  

Assembly has been set up by a recognised political party, the filing of  

original  Forms A and B duly signed in ink by an authorised person of  

such political party is  non-negotiable and non-filing of original Forms  

A  and  B  signed  in  ink  constitutes  a  defect  of  substantial  nature.  

Learned senior counsel argued that proviso to Rule 4 carves out an  

exception in respect of declaration in relation to symbol by candidates  

of  unrecognised political  party and independent  candidates as per  

clause (b)(ii)  of Part-III  of  Form 2-B and has no application to the  

case of a candidate belonging to a recognised political party who has  

to make a declaration as required by clause(b)(i) thereof. According  

to Mr. Gopal Subramanian, the proviso appended to Rule 4 and para  

13 of the 1968 Order operate in completely different fields without any  

overlap or conflict.  He vehemently contended that the present case  

squarely falls under Section 36(2)(b)  of the 1951 Act for failure to  

comply  with  the  requirement  of   nomination  paper  completed  in  

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prescribed form.  He would argue that the nomination having been  

subscribed by one proposer, basing on the declaration given by the  

election petitioner, it is intrinsic mandatory requirement of the 1968  

Order that ink signed Forms A and B were filed prior to 3 P.M.  on the  

last date of making nomination  so as to sustain the declaration of the  

candidate having been set up by a recognised political party.   

26. On the other hand, Mr. K.K. Venugopal,  learned senior  

counsel for the proposed candidate contended that  Section 36(4) of  

the 1951 Act read with proviso to Rule 4 of the 1961 Rules and  Form  

2 B (Part III) would make the filing of xerox copy of Form A and Form  

B permissible (assuming that xerox copy of Form A and Form B were  

filed only) and cannot form the basis of the rejection of the nomination  

paper. He submitted that failure to file original Form A and Form B  

signed in  ink  was  not  defect  of  a  substantial  character  within  the  

meaning of Section 36(4) of the 1951 Act.  According to him, para  

13(e) of the 1968 Order that states “Forms A and B are signed, in ink  

only, by the said office bearer or person authorised by the party” is  

only an expression of hope and is not mandatory as it does not use  

the expression ‘shall  be signed’.  He referred to  a  decision of  this  

Court in the case of Jagan Nath v. Jaswant Singh & Ors.1 in support  

of  his  submission  that  the  election  law  is  technical  and  unless  1 1954 SCR 892

17

express provision is found, one cannot read the word “are” as “shall”.  

With reference to Section 33(1) of the 1951 Act, Mr. Venugopal would  

submit  that  the  expression  “a  nomination  paper  completed  in  the  

prescribed form and signed by the candidate and by an elector of the  

constituency as proposer” did not require the nomination paper to be  

accompanied  by  specified  documents.  Rule  4  of  the  1961  Rules  

deals with  the nomination paper  while  para 13 of  the 1968 Order  

deals with the political party’s authorisation.  The two are separate  

and distinct and para 13 of 1968 Order cannot be read into Rule 4 of  

the 1961 Rules.  

27. Mr.  K.K.  Venugopal,  learned  senior  counsel  submitted  

that neither Section 33 nor Section 34 of the 1951 Act required that  

the  nomination  should  be  accompanied  by  the  sponsorship  or  

authorisation of a political party. Section 36(2) of the 1951 Act sets  

out the grounds on which nomination paper can be rejected. Neither  

clause (a)  which  deals  with  qualifications and disqualifications nor  

clause  (b)  that  deals  with  failure  to  comply  with  Section  33  nor  

Section 34 or clause (c) which deals with signature of the candidate  

or his proposer is relevant to the present controversy.

28. On the above contentions, the question presented for our  

consideration is,  whether it is mandatory for a candidate set up by a  

18

recognised political party to file original ink signed Forms A and B  

appended to para 13 of the 1968 Order.

29. Before we consider the above question, it is important to  

recapitulate  the general  rule  relating to  election law stated by the  

Constitution Bench of  this  Court  in  the case of  Jagan Nath1.  This  

Court (at page 895) stated :

“The  general  rule  is  well  settled  that  the  statutory  requirements of election law must be strictly observed and  that an election contest is not an action at law or a suit in  equity but is a purely statutory proceeding unknown to the  common law and that the court possesses no common law  power. It is also well settled that it is a sound principle of  natural  justice that  the success  of  a candidate  who  has  won at an election should not be lightly interfered with and  any petition seeking such interference must strictly conform  to the requirements of the law. None of these propositions,  however,  have  any  application  if  the  special  law  itself  confers authority on a tribunal to proceed with a petition in  accordance with certain procedure and when it  does not  state  the  consequences  of  non-compliance  with  certain  procedural requirements laid down by it. It is always to be  borne  in  mind  that  though  the  election  of  a  successful  candidate  is  not  to  be  lightly  interfered  with,  one of  the  essentials of that law is also to safeguard the purity of the  election process and also to see that  people  do not  get  elected  by  flagrant  breaches  of  that  law  or  by  corrupt  practices.  In  cases  where  the  election  law  does  not  prescribe the consequence or does not lay down penalty  for non-compliance with certain procedural requirements of  that law, the jurisdiction of the tribunal entrusted with the  trial of the case is not affected.”

30. Section 33 of the 1951 Act enacts that a candidate shall  

file  nomination  paper  on  or  before  the  appointed  date  in  the  

19

prescribed  form.   The  form  in  which  nomination  paper  shall  be  

presented and completed is provided in Rule 4 of the 1961 Rules.  

According to Rule 4,  every nomination paper presented under sub-

section (1) of Section 33 shall be completed in such one of the forms  

2-A  to  2-E,  as  may  be  appropriate.  Proviso  that  follows  Rule  4  

provides  that  a  failure  to  complete  or  defect  in  completing,  the  

declaration as to symbols in  a nomination paper in Form 2-A or Form  

2-B shall not be deemed to be a defect of substantial character within  

the meaning of  Section 36(4) of  1951 Act.  The controversy in the  

present case relates to a candidate set up by a recognised political  

party of the State and, therefore, the relevant form in this regard is  

Form 2-B. Form 2-B is in three parts.  Part-II  is  not  relevant and,  

therefore,  it  is  not  necessary to refer  to that.  Part-I  and Part-III  of  

Form 2-B are relevant. Part-I of Form 2-B is required to be completed  

by a candidate set up by a recognised political party. Part-III of Form  

2-B is a declaration to be made by the candidate giving assent to his  

nomination.  The  candidate  is  required  to  declare,  in  case  of  a  

candidate set up by a recognised State party in terms of para b(i),  

“that  I  am  set  up  at  this  election  by  the  ………party,  which  is  

recognised national party/state party in this State and that the symbol  

reserved for the above party be allotted to me”. Para b (ii) of Part-III is  

20

applicable  to  a  candidate  set  up  by  any  registered  unrecognised  

political  party or  a candidate who is contesting the election as an  

independent candidate.  A plain reading of proviso that follows Rule 4  

leaves no manner  of  doubt  that  a failure to complete or  defect  in  

completing, the declaration as to symbols in a nomination paper in  

Form 2A or Form 2B by a candidate set up by a recognised political  

party or a candidate set up by registered unrecognised political party  

or a candidate who seeks to contest the election as an independent  

candidate is not a defect of substantial nature. It is not possible to  

catalogue defects contemplated by the proviso. However, to illustrate  

the few;  wrong description of  symbol,  omission to  fill  blank space  

given in proforma in respect of choice of symbols, selecting a symbol  

which  is  reserved,  etc.,  fall  in  the  category  of  defects  not  of  a  

substantial character. We are fortified in our view by a decision of this  

Court in  Krishna Mohini  (Ms) v.  Mohinder Nath Sofat2 wherein this  

Court said in para 32 (Pg. 159) :  

“32. Though  Rule  4  of  the  Conduct  of  Elections  Rules  requires  every  nomination  paper  presented  under  sub- section (1) of Section 33 to be complete in such one of the  Forms 2-A to 2-E as may be appropriate and, therefore, the  blank space meant for showing three symbols in order of  preference as symbols of the candidate's choice, has to be  filled in; however, non-filling of the space as to choice of  symbol  is  not  a  defect  of  a  substantial  character.  Such  deficiency in the nomination paper is saved by the proviso  to Rule 4 of the Conduct of Elections Rules, 1961 which  

2  (2000) 1 SCC 145 21

provides that failure to complete or defect in completing the  declaration as to symbols in a nomination paper shall not  be deemed to be a defect of a substantial character within  the meaning of sub-section (4) of Section 36. Choosing a  wrong symbol, leaving blank the space meant for filling the  choice of symbols and an error in describing the symbol —  are  all  defects  not  of  a  substantial  character.  An  independent candidate may mention as his preference the  symbol reserved for a recognised political  party,  but that  again  will  not  be  a  defect  of  a  substantial  character.  Dealing with such cases, this Court has held in K.S. Abdul   Azeez v.  Ramanathan Chettiar (AIR 1967 SC 85) that the  question  of  symbols  should  not  play  an  important  part  because symbols can be assigned by political  parties till  the date for withdrawal and nomination paper should not be  cancelled, on this ground, during the interval.”

31. The applicability of proviso that follows Rule 4, however,  

is  limited  to  defect  in  the  declaration  as  to  symbol  made  by  a  

candidate in Form 2-A or 2-B appended to 1961 Rules. Its operation  

does  not  extend  to  the  defects  in  forms  required  to  be  filled  or  

completed  by a  candidate  set  up  by a   recognised  political  party  

under 1968 Order or non-fulfilment of requirements set out in clauses  

(a) to (e) of para 13 of the 1968 Order.

32. 1968 Order has been made by the Commission to provide  

for  specification,  reservation,  choice  and  allotment  of  symbols  of  

elections  in  Parliamentary  and  Assembly  Constituencies  for  the  

registered  political  parties  (recognised  or  unrecognised)  and  the  

independent candidates. Para 13 provides in unmistakable terms that  

for a candidate to be considered to have been set up by a political  22

party in a parliamentary or assembly constituency, he has to comply  

with the conditions set out in clauses (a) to (e) thereof.  In  Krishna  

Mohini (Ms)2, this Court held that in order to be a candidate set up by  

a registered and recognised political party so as to take advantage of  

being proposed by a single elector, all the four requirements set out  

in  clauses (a),  (b),  (c)  and (d)  of  para 13 of  1968 Order must be  

satisfied. The Court went on to say that if  any one or more of the  

requirements  are  not  satisfied,  the  benefit  of  nomination  being  

proposed by a single elector is not available to him. Clause (e) of  

para 13 of the 1968 Order is equally important. It reads, “Forms A  

and B are signed, in  ink only,  by the said office-bearer  or  person  

authorised  by  the  party”.  Proviso  appended  to  para  13  makes  a  

provision that no facsimile signature or signature by means of rubber  

stamp, etc. of any such office-bearer or authorised person shall be  

accepted and no form transmitted by fax shall be accepted. In other  

words,  for  a candidate,  proposed by a single elector  alone,  to  be  

treated as a candidate set up by a recognised political party, the filing  

of notice and communication in Forms A and B referable to clauses  

(b), (c) and (d) and in accord with clause (e) of para 13 of the 1968  

Order is essential and on its non-compliance, the nomination of such  

candidate is liable to be rejected.  

23

33. That clause (e) of para 13, 1968 Order does not use the  

expression “shall be signed” is obvious from the bare reading of the  

provision but  the significance of  the word “only”  therein cannot be  

ignored.   

34. In  Concise  Oxford  English  Dictionary  (Tenth  Edition,  

Revised), the word ‘only’ is explained :

Only ● adv. 1 and no one or nothing more besides.. . . . . .  ● adj.  alone of its or their kind; single or solitary. . . . . . . .   

35. In  Webster  Comprehensive  Dictionary,  International  

Edition (Volume Two), the word ‘only’ is defined thus :

Only (δn'lē) adv. . . . . . . .  2  In one manner or for one  purpose alone. . . . . .  4 Solely; merely; exclusively: limiting  a statement to a single defined person, thing, or number. –  adj. 1  Alone in its class; having no fellow or mate; sole;  single; solitary:  

36. The word ‘only’ is ordinarily used as an exclusionary term.  

In the American case of Henry R. Towne v. Mark Eisner (245 US 418  

at  425),  the  court  said,  “A  word  is  not  a  crystal,  transparent  and  

unchanged;  it is the skin of a living thought and may vary greatly in  

colour and content according to the circumstances and the time in  

which it is used”. In ascertaining the meaning of the word ‘only’, its  

placement is material and so also the context in which the word  has  

been used.  The use of the word ‘only’ in clause (e), para 13, 1968  

24

Order emphasises that Forms A and B are to be signed in ink by the  

office bearer or person authorised by the recognised party and in no  

other way. Thus, it excludes any other mode of filing Forms A and B  

when a candidate is set  up by a recognised political  party.  In our  

view,  therefore,  the  word  ‘only’  used  in  clause  (e)  of  para  13  is  

indicative of the mandatory character of that provision.

37. Where a candidate is  set  up by  a recognised political  

party,  clause  (b)(i),  Part-III  of  Form  2-B  becomes  relevant  as  by  

making  declaration  therein  the  candidate  makes  a  request  that  

symbol reserved for such party be allotted to him. It is for this reason  

that the requirements of para 13 of the 1968 Order become integral  

part of Form 2-B, Part-III under Rule 4 of the 1961 Rules where a  

candidate is set up by a recognised political party.  We are unable to  

accept the submission of Mr. K.K. Venugopal  that para 13 of the  

1968  Order  cannot  be  read  into  Rule  4.  Non-compliance  of  

requirements of para 13 of the 1968 Order, in our view, is a defect of  

substantial  character  and  the  nomination  paper  of  a  candidate  

proposed by a single elector set up by a recognised political party  

having such defect is liable to be rejected under Section 36(2)(b) as it  

tantamounts  to  non-compliance  of  the  provisions  of  Section  33,  

25

namely,  the  nomination  paper  having  not  been  completed  in  the  

prescribed form.  

38. The proposed candidate admittedly filed his nomination  

paper proposed by a single elector having been set up by BJD, a  

recognised political party in the State of Orissa, and, therefore, it was  

incumbent upon  him that the requirements of para 13 of the 1968  

Order were fully complied with. In other words, it was necessary for  

the proposed candidate that Forms A and B referable to clauses (b),  

(c) and (d) of para 13, 1968 Order were submitted to the Returning  

Officer duly signed in ink by the authorised person of BJD not later  

than 3.00 p.m. on April 4, 2009.  

39. Having  held  so,  the  other  questions  that  need  to  be  

considered by us in these appeals are, whether the High Court erred  

in framing issue no. 6 at the time of decision in the election petitions,  

i.e., whether the election petitioner Ranendra Pratap Swain filed the  

original  Form-A  and  Form-B  being  duly  signed  in  ink  by  the  

authorised person with the first set of his nomination and whether the  

finding recorded by the High Court  on that  issue suffers from any  

illegality.

40. The pleadings of the parties as well as the evidence let in  

by them clearly show that the parties were seriously in issue whether  

26

the original Form-A and Form-B duly signed in ink by the authorised  

person of BJD were filed by the proposed candidate with the first set  

of  his  nomination  paper.  The  election  petitioners  (in  both  election  

petitions)  asserted  that  the  proposed  candidate  had  filed  original  

Forms A and B duly signed in ink by Shri Navin Patnaik (authorised  

person of BJD) before the Returning Officer on April 4, 2009 at the  

time of presentation of nomination paper and check list was issued  

acknowledging  receipt  of  these  forms.   The  returned  candidate  

disputed  the  said  assertion  made  in  the  election  petitions.  The  

evidence  of  the  Returning  Officer,  who  was  examined  as  court  

witness no. 1, and his cross-examination on behalf of the proposed  

candidate as well  as the returned candidate also indicate that  the  

factual controversy in the election petitions centered around on the  

filing of  the original  Form-A and Form-B duly signed in ink by the  

authorised person of BJD with the first set of his nomination. It follows  

that by framing issue no. 6 at the time of final decision of the election  

petitions, no prejudice has been caused to the returned candidate. As  

a  matter  of  fact,  no  ground  of  prejudice  has  been  raised  in  the  

appeals nor such argument was advanced before us by the learned  

senior counsel for the returned candidate. We, accordingly, hold that  

the High Court did not commit any error in framing issue no. 6 which  

27

was quite vital and material for decision in the election petitions. We  

further  hold  that  no  prejudice  has  been  caused  to  the  returned  

candidate by framing such additional issue at the time of the decision  

in the election petitions.

41. The  proposed  candidate  PW-2  deposed  that  he  had  

contested Orissa Assembly Elections held in 1990, 1995, 2000 and  

2004  from  89-Athagarh  Constituency  and  had  won  all  these  four  

elections.  While  giving  the  details  of  nomination  papers  and  the  

documents presented personally by him on April  4,  2009 at  11.25  

a.m., he stated that in the first set of nomination, Rabindra Nath Rout  

(PW-1) was the proposer and along with the first set of nomination  

paper,  original  Form-A and Form-B signed in  ink  by Shri  Naveen  

Patanaik, President and the authorised signatory of BJD were filed.  

He deposed that he had presented four sets of nominations as the  

nominee of BJD for 89-Athagarh Assembly Constituency and all his  

four  sets  of  nominations  were  complete  in  all  respect.  He  also  

deposed  that  immediately  after  he  presented  four  sets  of  

nominations, as a nominee of BJD, the Returning Officer asked him  

to take oath before him and he, accordingly,  took oath before the  

Returning  Officer.  From  11.25  a.m.  to  11.45  a.m.,  the  Returning  

Officer examined the four sets of nominations presented by him and  

28

thereafter the Returning Officer personally prepared the check list of  

documents;  put  his  signature  on  that  and  asked  him  (proposed  

candidate)  to  sign  on  the  said  documents.  The  Returning  Officer  

retained with him one of such check list ticked duplicate   (Ex. 22) and  

handed over  another  to  him  (proposed  candidate)  ticked  original  

(Ex. 11).

42. The  deposition  of  the  proposer—Rabindra  Nath  Rout  

(PW-1) is not of much help as he has stated that he was not present  

in  the  office  room  of  the  Returning  Officer  when  the  proposed  

candidate filed his nomination.  

43. Significantly,  the  Returning  Officer  (CW-1)  in  his  

deposition  has  not  specifically  denied  that  Form-A and Form-B in  

original duly signed in ink by the authorised officer of BJD were not  

filed by the proposed candidate. Rather he stated that had it come to  

his  notice  that  Form-A  and  Form-B  duly  signed  in  ink  by  the  

authorised signatory were not  filed by the proposed candidate,  he  

would have made an endorsement on the bottom of the check list to  

that effect and asked the proposed candidate to file the original ink  

signed forms within time. He admitted that no such endorsement was  

made  in  the  check  list.  The  Returning  Officer  also  stated  in  his  

deposition that the nomination papers filed by the proposed candidate  

29

were examined by him only from technical stand point and it was not  

his duty to examine the correctness or validity of the documents at  

the time of filing of the same.

44. Although there is voluminous documentary evidence, in  

our view, the three documents viz; the check list (Ex. 11), Form 3-A  

(Ex. 42/F) and the consolidated list of nominated candidates (Ex. 44)  

are important. The check list marked ‘original’ (Ex. 11) given to the  

proposed candidate is as follows :

Sl. No.

Documents Whether  filed  (write yes/no)

1. Affidavit in Form-26 yes 2. Affidavit as per the Commission’s order  

dated 27.03.03 yes

3. Certified extract  of  electoral  roll  (when  candidate  is  an  elector  of  a  different  constituency)

Not  needed

4. Forms A and B (applicable in the case  of candidates set up by political parties)

yes

5. Copy  of  caste  certificate  (if  the  candidate claims to belong to SC/ST)

Not needed

6. Security deposit (whether made) yes 7. Oath/affirmation (whether taken) yes

30

The following documents which have not been filed should  be filed as indicated below :

(a) ____________should be filed latest by __________. (b) ____________should be filed latest by __________.

Received. ………………………. (Signature of candidate)

Date & time : 04.04.2009  -- 11.45 a.m.   Place : ATHAGARH”

45. List  of  nominated candidates—Checks If  (Ex.44)  to  the  

extent it is relevant is as follows :   

   Name of Parliamentary/Assembly Constituency -89 Athagarh

No .

Name of the  candidate

Address  of  candidate

Symbols  chosen  in  Order  of  preference  by  the  candidate.

Name  of  political  Party  (National/State  or  registered)  by  which  the  candidate  claims  to have been set  up/independent  candidate

Whether Forms  ‘A’ and ‘B’ have  been  received  by 3.00 p.m. on  the last date for  making  nominations  in  respect of the  candidate

Whether  main  candidate or  substitute  candidate of  the party (as  per  Party’s  intimation  in Form B)

1 2 3 4 5 6 7 1 Ranendra  

Pratap  Swain

At- Radhago  vindapur  P.O.- Dhaipur,  P.S.  Athagarh  Dist.- Cuttack

Cunch Biju  Janata  Dal

Yes Main  Candidate

31

46. On April 4, 2009, the Returning Officer published a notice  

in  Form  3A  on  the  notice  board  of  his  office  in  respect  of  the  

nomination papers presented before him on that day. In that notice –  

Form 3A (Ex. 42/F), it was mentioned in column no. 6 that proposed  

candidate was nominee of BJD. Pertinently, April 4, 2009 was the last  

day of nominations. Form 3A was displayed on the notice board after  

3  p.m.  Had  the  proposed  candidate  not  filed  Forms  A  and  B  as  

required, i.e., duly signed in ink by an authorised person of BJD, he  

would not have been shown as a nominee of that party in Form 3A.

47. On  behalf  of  the  returned  candidate  it  was  contended  

before the High Court and reiterated before us that  none of these  

documents indicate that Forms A and B were filed in original. It was  

submitted that these documents only indicate that Forms A and B  

were filed as endorsed in the check list  and were received before  

3.00  p.m.  on  the  last  date  of  making  nominations  but  these  

documents do not prove that original Forms A and B signed in ink by  

the authorised signatory of the party were filed.  

48. It  is  true that  neither  in  the check list  nor in  the list  of  

nominated candidates, the word ‘original’ before Forms A and B is  

mentioned but it was not required to be mentioned as in the case of  

candidates set up by political parties; the requirement is that such  

32

candidates  file  Form  A  and  Form  B  duly  signed  in  ink  by  the  

authorised officer of the concerned political party. In the event of filing  

of Form A and Form B otherwise, an endorsement would obviously  

be made against  that  column in the check list  and time would be  

given  to  make up  the  deficiency by 3.00  p.m.  on  the  last  day  of  

nomination. In the circumstances, having regard to the significance of  

the check list,  if  Forms A and B were  not  filed  in  original  by the  

proposed candidate, an endorsement would have been made by the  

Returning Officer that only xerox copies of Forms A and B were filed.  

No doubt under Section 33(4) of the 1951 Act, the Returning Officer  

is not expected to make a detailed scrutiny of the nomination paper  

presented before him but in the case of a candidate who has filed his  

nomination paper  as a  candidate  set  up  by a  recognised  political  

party and in view of para 13 of the 1968 Order, the Returning Officer  

would  surely  check whether  Form A and Form B suffer  from any  

defect.

49. As a matter of fact, to obviate unnecessary dispute about  

presentation of nomination paper by a candidate, the Commission in  

the handbook has  provided for  guidelines  pertaining to  check  list.  

Accordingly, a check list is required to be prepared duly certified by  

the Returning Officer that all documents have been received. Such  

33

check  list  is  signed  by  the  Returning  Officer  as  well  as  by  the  

candidate. Where a check list certifies that Forms A and B (in the  

case of  candidates set  up by a  recognised political  parties),  have  

been filed, such certificate leads to presumption that the procedural  

requirement of filing the documents as prescribed in para 13 of the  

1968 Order has been complied with. The presumption is of course  

rebuttable but there must be sufficient evidence by the other side to  

displace  such  presumption.  In  the  present  case,  the  check  list  

(Ex.11), Form 3A (Ex. 42/F) and the list of the nominated candidates

—checks  IF  (Ex.  44)  give  rise  to  presumption  in  favour  of  the  

proposed candidate that he had filed Form-A and Form-B duly signed  

in  ink  by  the  authorised  person  of  BJD  with  the  first  set  of  his  

nomination  paper.  The  question  is  whether  this  presumption  has  

been rebutted by the returned candidate? We do not think so. The  

oral evidence of the returned candidate (RW-1) and his witness (RW-

2)  is  not  of  much  help  insofar  as  this  aspect  is  concerned.  The  

Returning  Officer  has  not  stated  firmly  and  with  certainty  in  his  

evidence  that  the  proposed  candidate  had  not  filed  Form-A  and  

Form-B signed in ink by the authorised person of the BJD. Rather he  

stated that  had it  come to his notice that  the original  Form-A and  

Form-B duly signed in ink were not filed along with the nomination  

34

paper  by  the  proposed  candidate,  he  would  have  made  an  

endorsement to that effect in the check list. Moreover, between 11.46  

a.m. when the check list was prepared by the Returning Officer and  

given to the candidate and 3.00 p.m. on April 4, 2009 (last date of  

nominations)  no intimation was issued by the Returning Officer  or  

received by the candidate with regard to non-filing of original Forms A  

and  B.  No  doubt,  the  burden  is  on  the  candidate  set  up  by  a  

recognised political party to prove that he had filed Forms A and B  

duly  signed in  ink by the authorised person of  that  party  but  that  

burden  gets  discharged  on  production  of  evidence  that  raises  

presumption  in  his  favour.  In  the  present  case  the  proposed  

candidate  has  been  successful  in  discharging  the  burden  placed  

upon him.  

50. The evidence  of  the  Returning  Officer  is  the  important  

part of the case. He admitted in his evidence that the xerox copies of  

the nomination papers and documents were got prepared through his  

officials for the purpose of displaying on the notice board. He also  

admitted  that  since  proposed  candidate  had  filed  all  documents  

required in the nomination form, no further endorsement was made in  

the check list that he (proposed candidate) was required to file any  

documents. Moreover, with regard to another candidate, Janaki Rout  

35

in  respect  of  89-Athagarh  Assembly  Constituency,  the  Returning  

Officer stated that he asked him to file the document which he had  

not filed along with the nomination paper by 3.00 p.m. at the latest. In  

respect of yet another candidate Bijaya Kumar Biswal, in the check  

list, he had endorsed therein that the certified extract of the electoral  

roll was not filed and asked him to file the same at 11.00 a.m. on April  

6, 2009 at the latest. It is, thus, seen that the Returning Officer was  

conscious  of  his  duties  as  per  the  statutory  provisions  and  the  

guidelines  issued  by  the  Commission  by  way  of  handbook.  On  

presentation of nomination papers by respective candidates wherever  

deficiencies were found, he made endorsement in the check list and  

gave  them time  to  make  up  the  deficiency  as  per  law.  A  careful  

consideration of the evidence of Returning Officer leaves no manner  

of doubt that he has not distorted the facts nor withheld anything from  

the court  with  regard to presentation of  nomination papers  by the  

candidates  including  the  proposed  candidate.  The  evidence  on  

record, i.e, the evidence of the Returning Officer, the documentary  

evidence, namely,  the check list,  Form 3A displayed on the notice  

board,  the  consolidated  list  of  nominated  candidates  and  the  

evidence of PW-2 clearly establish that original Form-A and Form-B  

signed in ink by authorised officer of the party (BJD) were presented  

36

by the proposed candidate along with 1st set of nomination paper on  

April 4, 2009. The finding returned by the High Court in this regard  

cannot be said to be wrong or unjustified.

51. It  is  a  fact  that  the  original  Forms  A  and  B  were  not  

available on record before the Returning Officer on April 6, 2009 at  

the  time  of  scrutiny.  However,  we  are  not  persuaded  by  the  

submission  made  on  behalf  of  the  returned  candidate  that  in  the  

absence of original Forms A and B on record, the Returning Officer  

had to proceed on the basis of records available before him on that  

day and he had no option but  to reject  the nomination.  The least  

expected of the Returning Officer, when he found that original forms  

A and B were not  available on record,  was to make brief  enquiry  

about  non-availability  of  the forms A and B.   It  was  all  the  more  

necessary  as  the  nomination  papers  along  with  accompanying  

documents were sent for xeroxing.  

52. Section  83  of  the  1951  Act  requires  that  an  election  

petition shall  contain a concise statement  of  the material  facts on  

which the petitioner relies. It has been repeatedly held by this Court  

that  Section  83  is  peremptory.  In  Samant  N.  Balakrishna,  etc. v.  

George Fernandez and others etc. 3,  this Court observed in para 29  

(Pg. 1212) of the Report thus:  3  AIR 1969 SC 1201

37

“………The  section  is  mandatory  and  requires  first  a  concise statement of material facts and then requires the  fullest possible particulars. What is the difference between  material  facts and particulars? The word ‘material’  shows  that the facts necessary to formulate a complete cause of  action must be stated. Omission of a single material  fact  leads to an incomplete cause of action and the statement  of  claim  becomes  bad.  The  function  of  particulars  is  to  present as full  a picture of the cause of action with such  further information in detail as to make the opposite party  understand the case he will have to meet. There may be  some overlapping  between material  facts  and particulars  but the two are quite distinct……….”

53. In Azhar Hussain v. Rajiv Gandhi4, this Court held that an  

election petition must  be dismissed if  the mandatory requirements  

enjoined  by  Section  83  to  incorporate  the  material  facts  and  

particulars relating to alleged corrupt practice in the election petition  

are not complied with.

54. In  Hari  Shanker  Jain v.  Sonia  Gandhi5,  this  Court  

reiterated the mandatory provision contained in Section 83(1)(a) of  

the 1951 Act and  observed therein that the material facts required to  

be  stated  are  those  facts  which  can  be  considered   as  materials  

supporting the allegations made. In other words, this Court said that  

they must be such facts as would afford the basis for the allegations  

made in  the  petition  and  would  constitute  the  cause  of  action  as  

understood in the Code of Civil Procedure, 1908.

4  AIR 1986 SC 1253 5  (2001) 8 SCC 233

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55. A 3-Judge Bench of this Court in  Pothula Rama Rao v.  

Pendyala Venakata Krishna Rao and Others6,  stated in paragraph 8  

(at Pg. 6) of the Report as follows :

“If  an election petitioner wants to put  forth a plea that a  nomination  was  improperly  rejected,  as  a  ground  for  declaring an election to be void, it is necessary to set out  the averments necessary for making out the said ground.  The reason given by the Returning Officer for rejection and  the  facts  necessary  to  show  that  the  rejection  was  improper,  should be set out.  If  the nomination had been  rejected for non-compliance with the first proviso to Sub- section  (1)  of  Section  33,  that  is,  the  candidate's  nomination  not  being  subscribed  by  ten  voters  as  proposers,  the election petition should contain averments  to  the  effect  that  the nomination  was  subscribed by ten  proposers  who  were  electors  of  the  Constituency  and  therefore,  the  nomination  was  valid.  Alternatively,  the  election petition should aver that the candidate was set up  by a recognized political party by issue of a valid 'B' Form  and that his nomination was signed by an elector of the  Constituency  as  a  proposer,  and  that  the  rejection  was  improper as there was no need for ten proposers. In the  absence  of  such  averments,  it  cannot  be  said  that  the  election petition contains the material facts to make out a  cause of action.”   

56. In  a  recent  decision  in  Nandiesha  Reddy v.  Kavitha  

Mahesh7,  this Court observed that where election petitioner alleges  

improper  rejection  of  his/her  nomination  paper  by  the  Returning  

Officer, he/she must set out in election petition reasons given by the  

Returning Officer for  refusal  to  accept  nomination paper  and facts  

necessary to show that refusal was improper. In paragraphs 36 and  

37 of the Report (at Pg. 734), this Court held as under : 6  (2007) 11 SCC 1 7  (2011) 7 SCC 721

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“36.  Section 83 (1)(a) inter alia provides that an election  petition shall  contain a concise statement of the material  facts. Further, Section 87 of the Act provides that subject to  the provisions of the Act and the Rules framed thereunder  every election petition shall be tried in accordance with the  procedure applicable under the Code of Civil Procedure to  the trial of suits. Order VI of the Code of Civil Procedure is  devoted to the pleadings generally and Rule 2(i) thereof,  inter  alia,  provides  that  every  pleading  shall  contain  a  statement  in  a  concise  form of  all  the  material  facts  on  which  the  party  pleading  relies  for  claim.  In  an  election  petition, which does not contain material facts, no relief can  be granted.

37.    The phrase “material fact” as used in Section 83 (1)  (a)  of  the  Act  or  Order  6  Rule  2  of  the  Code  of  Civil  Procedure has not been defined in the Act or the Code of  Civil Procedure. In our opinion all specific and primary facts  which are required to be proved by a party for the relief  claimed are material facts. It is settled legal position that all  material facts must be pleaded by the party on which the  relief  is founded. Its object and purpose is to enable the  contesting party to know the case which it has to meet. An  election petition can be summarily dismissed if it does not  furnish the material facts to give rise to a cause of action.  However, what are the material facts always depend upon  the facts of each case and no rule of universal application  is possible to be laid down in this regard.”

57. In view of the above legal position, there is no doubt that  

in a case under Section 100(1)(c)  of  the 1951 Act,  the only issue  

before the Court is improper rejection of nomination paper and the  

court  is  required  to  examine  the  correctness  and  propriety  of  the  

order by which the nomination paper of a candidate is rejected. The  

grounds  set  out  in  the  election  petition  challenging  the  order  of  

rejection of nomination paper, thus, form the basis of adjudication in  

the election petition. 40

58. The learned senior  counsel  for  the appellant  submitted  

that the material facts relating to the ground on which election of the  

returned candidate has been set aside have neither been pleaded in  

the  election  petition  nor  have  been  proved  by  leading  cogent  

evidence. We do not find any merit in this contention.

59. In  the  Election  Petition  No.  4  of  2009  filed  by  the  

proposed candidate, the order of rejection of nomination has been  

assailed, inter alia, on the following grounds:

“5(C) That  the  reasonings  given  in  the  decision  of  the  Retuning  Officer,  in  his  order  of  rejection  dtd.  06.04.2009  is  also  not  legally  sustainable  for  the  following reasons :-

(a) The  Nominee  of  B.J.D.  Nominee  for  87-BARAMBA  Assembly  Constituency  was  submitted  on  03.04.2009.  The  Returning Officer had the occasion to examine the same and grant  the Check List on 03.04.2009 i.e. one day before the submission  of the Nomination of the Election Petitioner, whereas the Election  Petitioner submitted his Nomination on 04.04.2009. If according to  the Returning Officer, “from comparison of two sets of Form A & B  submitted in 87- BARAMBA, he came to conclusion that the set of  Form A & B, submitted by the Election Petitioner along with his  first set of Nomination was not original and not signed in ink but a  xerox copy, then in ordinary course of human conduct and in view  of  instruction  of  the  Election  Commission”,  he  would  have  recorded an endorsement to that effect in the CHECK LIST which  he  himself  gave  at  11.45  AM on  04.04.2009,  and  would  have  further called upon the Election Petitioner to produce the same by  3 PM on the same day.

(b) The Returning Officer instead of making a comparison  with the Form A & B submitted along with the Nominations of 87- BARAMBA, should have referred to the Form A & B, which was  communicated both to him & to the CEO under the provisions of  Election Symbol (Reservation & Allotment) Order – 1968.  

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5(D) That  a  plain  reading  of  four  Orders  of  rejection  recorded  by  the  Returning  Officer  on  four  sets  of  Nominations  submitted  by  the  Election  Petitioner  spells out so much so discrepancy that the same itself  is  sufficient  to  conclude that  the  order  suffers  from  inconsistency and is an outcome of non application of  mind.

5(E) That on the date of scrutiny no objection was raised  by any of the contesting candidates or any person on  their behalf present at the time and place of scrutiny  to the effect that the Form A & B, filed by the Election  Petitioner with his first set of “NOMINATION” were not  original not it contains the signature of the authorised  person IN INK were Xerox copies.

The  complaint  was  raised  by  the  Returning  Officer  himself  who  had  received  all  the  four  sets  of  Nominations,  along with  other  affidavits,  documents  original money receipt and original Form A & B, duly  signed  in  ink,  by  the  authorised  person,  and  had  signed  the  CHECK  LIST  which  is  a  document  required to be signed & delivered to the candidate in  exercise of his statutory powers on 04.04.2009. The  partisan attitude and hostility of the Returning Officer  towards  the  Election  Petitioner  emanates  from  his  own conduct, when he refused minimum opportunity  to  the  Election  Petitioner  to  REBUT  the  so  called  allegations regarding non-submission of original Form  – A & B containing signature of authorised person in  ink, which a candidate is entitled to as of right under  the Rules of Election Law.”

60. The  High  Court,  inter  alia,  considered  the  evidence  of  

PW-2  and  also  the  evidence  of  the  Returning  Officer,  the  

documentary evidence,  namely,  the check list  (original-exhibit  11),  

Form 3-A (exhibit 42/F) and consolidated list of nominated candidates

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—checks  IF  (exhibit-44)  and  the  contentions  of  the  returned  

candidate and held as under :

“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  Swain.  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 04.04.2009 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 effected,  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 filed to detect the Xerox  

43

copies of  the original  ink signed Form A and Form B, if  filed. 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.”   

61. The  High  Court  finally  concluded  that  the  proposed  

candidate had filed the original Form-A and Form-B duly signed in ink  

by the authorised person of BJD with the first set of his nomination  

and, accordingly, decided Issue No. 6 in favour of election petitioners.  

The consideration of the matter by the High Court in para 14 of the  

judgment may be reproduced as it is.

“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  

44

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  04.04.2009 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 authorised person with the  1st set  of  his  Nomination.  Accordingly,  issue  no.  6  is  answered in affirmative.

62. In what we have already discussed above, we do not find  

any error in the consideration of the matter by the High Court.  

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63. The election petitioner, as noticed above, in ground 5(E)  

set up the case that the objection of non-filing of original Forms A and  

B signed in ink by the authorised officer of the party was not raised by  

any  of  the  contesting  candidates  or  any  person  on  their  behalf  

present at the time and place of scrutiny. It was the Returning Officer  

who raised the issue of non-filing of original Forms A and B but he  

refused minimum opportunity to the election petitioner to rebut the  

same. In our view, the Returning Officer ought to have acted in terms  

of  proviso  to  Section  36(5)  of  the  1951  Act  and  afforded  an  

opportunity  to  the  election  petitioner  until  next  day  to  rebut  the  

objection  and  show  to  the  Returning  Officer  that  the  proposed  

candidate  had  filed  Forms  A  and  B  duly  singed  in  ink  by  the  

authorised person of BJD. PW-3, the authorised representative of the  

election petitioner did state in his evidence that he requested to the  

Returning Officer, when he raised the objection that original Forms A  

and B were not filed, to enquire into the matter about the missing  

Forms A and B. It was not necessary to state in the election petition  

the evidence of PW-3 in support of ground 5(E).

64. The proviso that follows sub-section (5) of Section 36 of  

the 1951 Act  provides   that  in  case an objection is  raised by the  

returning  officer  or  is  made  by  any  other  person  the  candidate  

46

concerned may be allowed time to rebut it not later than the next day  

but one following the date fixed for scrutiny, and the returning officer  

shall record his decision on the date to which the proceedings have  

been adjourned.

65. In Rakesh Kumar v. Sunil Kumar8, this Court held in para  

21 (Pg. 500) as under:

“21. ………The use of the expression "not later than the  next  day  but  one  following  the  date  fixed  for  scrutiny"  under the proviso to Sub-section (5) of Section 36 of the  Act  un-mistakably shows that  the Returning Officer  has  been  vested  with  the  discretion  to  fix  time to  enable  a  candidate  to  rebut  an  objection  to  the  validity  of  his  nomination paper and such a discretion has to be fairly  and  judicially  exercised.  The  refusal  to  grant  an  opportunity to the respondent and rejecting his nomination  paper was clearly an arbitrary exercise of the discretion  vested in the Returning Officer. The Returning Officer has  also not given any cogent reasons for his refusal to grant  an  opportunity  as  prayed  for  by  the  respondent.  The  Returning Officer appears to have been labouring under  some misconception when he recorded that the political  party  "cannot  be  given  further  time  to  change  such  authorisation after scrutiny". Under the proviso to Section  36(5)  of  the  Act,  the  scrutiny  itself  would  have  been  postponed to the adjourned time and, therefore, it was not  a  case  of  meeting  the  objection  after  scrutiny  of  the  nomination papers. The failure to exercise his jurisdiction  to  postpone  the  decision  as  to  the  validity  of  the  nomination  paper  of  the  respondent,  even  after  the  respondent had sought time to meet the objection, indeed  rendered  the  rejection  of  the  nomination  paper  of  the  respondent  as both improper and illegal.  The Returning  Officer  is  not  expected  to  reject  a  nomination  paper,  without  giving  an  opportunity  to  the  candidate  or  his  representative present at the time of scrutiny to meet an  objection, capable of being met, particularly where such  an  opportunity  is  sought  for  by  the  candidate  or  his  

8 (1999) 2 SCC 489 47

representative and no one present on behalf of the other  candidates  had  opposed  the  claim  made  by  the  respondent.  Having  raised  the  objection  suo  motu,  the  request of the respondent who was present and sought  time in writing to seek clarification from the BJP as to who  was  its  official  candidate,  the  Returning  Officer  in  all  fairness was obliged to grant time to the respondent as  prayed for by him and postponed the scrutiny to the next  day  but  he  ought  not  to  have  rejected  his  nomination  paper in hot haste. The Returning Officer, obviously, failed  to exercise his jurisdiction under Section 36(5) of the Act  properly and thereby fell in a grave error in rejecting the  nomination paper of the respondent……….”          

66. In  the  facts  and  circumstances  of  the  present  case,  

which have already been noticed above, the Returning Officer erred  

in  acting  in  hot  haste  in  rejecting  the  nomination  paper  of  the  

proposed candidate and not postponing the scrutiny to the next day,  

particularly,  when  a  request  was  made  by  the  authorised  

representative of the proposed candidate. The election petitioners  

have  been  successful  in  proving  the  improper  rejection  of  the  

proposed candidate’s nomination paper.  In other words, they have  

been able to prove the ground for setting aside appellant’s election  

to 89-Athagarh Assembly Constituency under Section 100(1)(c) of  

the 1951 Act.    

67. The consideration of the matter by the High Court does  

not  suffer  from any factual  or  illegal  infirmity.  In  this  view of  the  

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matter – and the factual and legal position discussed above – we  

see no ground to interfere with the impugned judgment.  

68. The appeals, accordingly, fail and are dismissed with no  

order as to costs.

………………………J (R.M. LODHA)   

               ….…………………………….J.        (JAGDISH SINGH KHEHAR )

NEW DELHI DECEMBER 9, 2011.           

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