Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : E. P. Against Rejection Of Nomination Of A Candidate Dismissed Because Defect Of Wrong Electoral Roll Number Is Not Of Substantial Character.
JUDGEMENT TITLE : Saleem Masood Vs. Rasheed Masood On 05/09/2008 By Allahabad High Court
CASE NO : ELECTION PETITION NO. 10 OF 2004
CORAM : Hon'ble Dilip Gupta,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Judgment Reserved On 11th August, 2008
Judgment Delivered On 5th September, 2008

Election Petition No. 10 Of 2004
Saleem Masood
Vs.
Rasheed Masood
~~~~~
Hon. Dilip Gupta, J.

An Elector Has Filed This Petition Under Sections 80 And 81 Of 'The Representation Of The People Act, 1951' (hereinafter Referred To As The ''Act') Calling In Question The Election Of The Returned Candidate Rasheed Masood From 80 Saharanpur Parliamentary Constituency On The Ground That The Nomination Of The Independent Candidate Vishwanath Had Been Improperly Rejected By The Returning Officer On The Date Of Scrutiny Of The Nomination Papers.
A Notification Dated 16th April, 2004 Was Issued Calling Upon The Electors Of 80 Saharanpur Parliamentary Constituency To Elect The Member Of The Lok Sabha. According To The Notification The Last Date For Filing Nomination Was 23rd April, 2004 And The Date Of Scrutiny Of Nomination Paper Was 24th April, 2004. Fifteen Persons Filed Nomination Papers For The Said Parliamentary Constituency. The Elections Were Held And The Returning Officer Declared Rasheed Masood Elected From 80 Saharanpur Parliamentary Constituency On 13th May, 2004. In The Nomination Paper Delivered By The Independent Candidate Vishwanath To The Returning Officer On 23rd April, The First Three Proposers Sanjay, Vishal And Satya Pal Had All Mentioned The Part Number Of The Electoral Roll Of The Constituency As 23 Instead Of 45 Though They Had Correctly Mentioned The Serial Numbers. The Returning Officer Rejected The Nomination Form Of Vishwanath On The Date Of Scrutiny Of Nomination On The Ground That The Names Of The First, Second And Third Proposers Of Vishwanath Were Not Entered In The Electoral Roll Of The Constituency.
This Election Petition Had Earlier Been Assigned By Hon'ble The Chief Justice To Another Hon'ble Judge And During The Pendency Of The Petition An Application (paper No.A-7) Was Filed By The Returned Candidate With A Prayer That The Election Petition Be Dismissed Under Section 86(1) Of The Act For Non-compliance Of The Provision Of Section 81(3) Of The Act. This Application Was Rejected By A Detailed Order Dated 25th May, 2007. Subsequently On 24th August, 2007 The Court Directed That The Petition Be Listed On 31st August, 2007 For Framing Of Issues. However, The Learned Judge Who Was Assigned This Election Petition Joined A Division Bench And An Application Was Moved By The Election Petitioner For Fresh Nomination. This Election Petition Was Then Assigned By Hon'ble The Chief Justice To This Court By The Order Dated 12th October, 2007.
On 22nd November, 2007 The Court Framed Seven Issues, But The Issues That Were Pressed By The Learned Counsel For The Parties At The Time Of Hearing Of The Election Petition Are Issue Nos.5 And 6 Which Are As Follows:-

"(5) Whether The Nomination Of Sri Vishwanath, An Independent Candidate, Has Been Improperly Rejected By The Returning Officer?
(6) Whether The Improper Rejection Of Nomination Of Sri Vishwanath Has Rendered The Election Of Sri Rasheed Masood, The Returned Candidates, As Void And The Petitioner Is Entitled To Such A Declaration?"

Sri Ravi Kiran Jain, Learned Senior Counsel Appearing For The Election Petitioner Contended That Unless Evidence Is Led To The Contrary, There Is A Presumption That The Returning Officer Had Performed All That He Was Required To Perform Under Section 33(4) Of The Act When The Nomination Paper Was Delivered By The Independent Candidate Vishwanath. Elaborating This Submission He Contended That It Should Be Presumed That The Returning Officer Had Satisfied Himself That The Names And The Electoral Roll Numbers Of The Proposers As Entered In The Nomination Paper Were The Same As Those Entered In The Electoral Rolls And It Was After Satisfying Himself That The Nomination Paper Was Valid In All Respects That The Returning Officer Issued The Receipt To The Independent Candidate Vishwanath. He, Therefore, Contended That In Such Circumstances The Returning Officer Improperly Rejected The Nomination Paper Of Vishwanath On The Date Of Scrutiny On The Ground That The Names Of The First, Second And Third Proposers Were Not Entered In The Electoral Roll. He Further Submitted That In Any View Of The Matter, The Defect Was Not Of A Substantial Character And, Therefore, The Returning Officer Could Not Have Rejected The Nomination Paper Of Vishwanath On This Ground, Particularly When The Correct Part Number Of The Electoral Roll Had Been Pointed Out To The Returning Officer At The Time Of Scrutiny. It Is Also His Submission That Once Issues Had Been Framed And The Parties Were At Variance, The Burden Of Proof Looses Significance And The Petitioner, Who Is Merely An Elector, Should Not Be Expected To Prove What Had Happened At The Time Of Filing Of The Nomination Paper Or At The Time Of Scrutiny Of The Nomination. According To Him The Returning Officer And The Returned Candidate Were The Best Persons Who Could Have Given Evidence About These Facts But They Were Not Examined By The Respondent And So Adverse Inference Should Be Drawn Against The Respondent.
Sri K.R. Singh, Learned Counsel Appearing For The Returned Candidate, However, Submitted That The Defect In The Nomination Paper Of The Independent Candidate Was Of A Substantial Character As It Could Not Be Proved By The Election Petitioner That At The Time Of Filing Of The Nomination Paper Or At The Time Of Scrutiny Of The Nomination Paper It Was Pointed Out To The Returning Officer That The Names Of The First, Second And Third Proposers In The Nomination Paper Of Vishwanath Were Contained In The Electoral Rolls In Part No.45 And, Therefore, The Returning Officer Was Justified In Rejecting The Nomination Paper Of Vishwanath And That The Averments Made In The Election Petition About What Had Transpired Before The Returning Officer At The Time Of Filing Of The Nomination Paper Or At The Time Of Scrutiny Of The Nomination Paper Are Absolutely Vague. He Further Submitted That There Can Be No Presumption Under Section 33(4) Of The Act About The Validity Of The Nomination Paper Merely Because The Returning Officer Had Issued A Receipt To The Candidate Who Had Delivered The Nomination Paper.
In Order To Appreciate The Rival Contentions Advanced By Learned Counsel For The Parties, It Would Be Useful To First Examine The Relevant Provisions Of The Act And 'The Conduct Of Election Rules, 1961' (hereinafter Referred To As The ''Rules').
Section 32 Of The Act Deals With Nomination Of Candidates For Election And Provides That Any Person May Be Nominated As A Candidate For Election To Fill A Seat If He Is Qualified To Be Chosen To Fill That Seat Under The Provisions Of The Constitution And The Act.
Section 33 Of The Act Deals With Presentation Of Nomination Paper And Requirements For A Valid Nomination. Sub-section (1) Of This Section Provides That On Or Before The Date Appointed Under Clause (a) Of Section 30 Each Candidate Shall, Either In Person Or By His Proposer, Deliver To The Returning Officer A Nomination Paper Completed In The Prescribed Form And Signed By The Candidate And By An Elector Of The Constituency As Proposer. The First Proviso, However, Stipulates That A Candidate Not Set Up By A Recognised Political Party, Shall Not Be Deemed To Be Duly Nominated For Election From A Constituency Unless The Nomination Paper Is Subscribed By Ten Proposers Being Electors Of The Constituency.
Section 33(4) Of The Act Deals With The Duties To Be Performed By The Returning Officer When The Nomination Paper Is Presented To Him And Is As Follows:-
"33(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 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."

Section 36 Of The Act Deals With Scrutiny Of Nominations And The Relevant Provisions Are As Follows:-
"36. Scrutiny Of Nominations.--(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 Authorised 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) That On The Date Fixed For The Scrutiny Of Nominations The Candidate Either Is Not Qualified Or Is Disqualified For Being Chosen To Fill The Seat Under Any Of The Following Provisions That May Be Applicable, Namely:-
Article 84, 102, 173 And 191,
Part II Of This Act And Sections 4 And 14 Of The Government Of Union Territories Act, 1963 (20 Of 1963).

(b) That There Has Been A Failure To Comply With Any Of The Provisions Of Section 33 Or Section 34; Or

(c) That The Signatures Of The Candidate Or The Proposer On The Nomination Paper Is Not Genuine.

(3) Nothing Contained In Clause (b) Or Clause (c) Of Sub-section (2) Shall Be Deemed To Authorise The Rejection Of The Nomination Of Any Candidate On The Ground Of Any Irregularity In Respect Of A Nomination Paper, If The Candidate Has Been Duly Nominated By Means Of Another Nomination Paper In Respect Of Which No Irregularity Has Been Committed.

(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 Date Fixed For Scrutiny And The Returning Officer Shall Record His Decision On The Date To Which The Proceedings Have Been Adjourned.

(6) The Returning Officer Shall Endorse On Each Nomination Paper His Decision Accepting Or Rejecting The Same And, If The Nomination Paper Is Rejected Shall Record In Writing A Brief Statement Of His Reasons For Such Rejection.

(7).................
(8)................."

Section 100(1)(c) Of The Act Provides That If The High Court Is Of The Opinion That Any Nomination Has Been Improperly Rejected, The High Court Shall Declare The Election Of The Returned Candidate To Be Void.
Rule 4 Of The Rules Provides That Every Nomination Paper Presented Under Section 33(1) Of The Act Shall Be Completed In Such One Of The Forms 2-A To 2-E As May Be Appropriate. The Relevant Form In The Present Case Would Be Form 2-A As It Relates To Election To The House Of People. The Said Form 2A Consists Of Part I, Part II, Part III, Part III-A, Part IV, Part V And Part VI.
While Part I Is To Be Used By A Candidate Set-up By A Recognised Political Party, Part II Is To Be Used By A Candidate Not Set-up By Recognised Political Party. Vishwanath, Whose Nomination Is In Issue In This Petition, Had Filed His Nomination As An Independent Candidate And So Part II Would Be Relevant And The Same Is Reproduced:-

PART-II

(To Be Used By Candidate NOT Set-up By Recognised Political Party)

We Hereby Nominate As A Candidate For Election To The House Of The People From The........................................................ Parliamentary Constituency.
Candidate's Name......................................................Father's /mother's /husband's Name................................................ His Postal Address.................................................
His Name Is Entered At S. No................................................in Part No. .......................................................... *(Assembly Constituent Comprised Within) .......................................Parliamentary Constituency.
We Declare That We Are Electors Of The Above Parliamentary Constituency And Our Names Are Entered In The Electoral Roll For That Parliamentary Constituency As Indicated Below And We Append Our Signatures Below In Token Of Subscribing To This Nomination :-

Particulars Of The Proposers And Their Signatures

Sl.
No.
Name Of Component Assembly Constituency
Elector Roll No. Of Proposer
Part No. Sl. No.
of Electoral In That
Roll Part
Full Name
Signature
Date
1
2
3 4
5
6
7
1.
2.
3.
4.
5.
6.
7.
8.
9.
10
N.B. :- There Should Be Ten Electors Of The Constituency As Proposers.

Part V Contains The Decision Of Returning Officer Accepting Or Rejecting The Nomination Paper After Examining It Under Section 36 Of The Act. Part VI Is The Receipt For Nomination Paper And Notice Of Scrutiny.
The Pleadings Of The Parties Also Need To Be Examined.
The Concise Statement Of The Material Facts On Which The Petitioner Relies For Declaring The Election Of Rasheed Masood To Be Void, As Stated In Paragraphs 8, 9, 10, 11, 12 And 13 Of The Election Petition, Are As Follows:-
"8. That Sri Vishwanath Filed His Nomination Paper On 23-4-2004, As An Independent Candidate From 80, Saharanpur Parliamentary Constituency. The Nomination Of Sri Vishwanath Was Proposed By 10 Electors Whose Names And Other Details Regarding Assembly Segment Number, Part Number And Serial Number Of The Electoral Roll Were Mentioned In The Prescribed Proforma. Sri Vishwanath Had Also Filed Required Declaration In Part 3-A Regarding His Criminal Antecedents.
9. That The Nomination Of Sri Vishwanath Was Valid In All Respects And This Fact Was Ascertained By The Returning Officer, While Receiving The Nomination Paper. In Terms Of Section 33(4) Of The Act, The Returning Officer Had Checked And Satisfied Himself That The Names And Electoral Roll Number Of The Candidate, His Proposer As Entered In The Nomination Paper Are The Same As Those Entered In The Electoral Roll. The Returning Officer After Verifying And Satisfying Himself That The Nomination Paper Of Sri Vishwanath Was Valid In All Respects, Issued A Receipt Of Nomination Paper Having Been Duly Filed And Validly Presented By Sri Vishwanath.
10. That On The Date Of Scrutiny I.e. 24-4-2004 The Nomination Of Sri Vishwanath Has Been Improperly Rejected On The Ground That The Names Of The Proposers Of Sri Vishwanath Namely Sri Sanjay, Sri Vishal And Sri Satya Pal At Serial Nos.1, 2 And 3 Are Not Entered In The Electoral Roll.
A Photocopy Of The Nomination Paper Of Sri Vishwanath Containing The Name Of His Proposers, The Receipt Issued By The Returning Officer And The Rejection Order Dated 24-4-2004 Is Filed As ANNEXURE NO.1 To This Petition.
11. That As A Matter Of Fact The Names Of Proposers Of Sri Vishwanath Namely Sri Sanjay (at Serial No.1), Sri Vishal (at Serial No.2) And Sri Satya Pal (at Serial No.3) Find Place In The Electoral Roll At Part No.45 On The Same Serials As Mentioned In The Nomination Papers. This Electoral Roll Of Part No.45 Was Very Much Before The Returning Officer At The Time Of Scrutiny And The Same Was Pointed Out To Him By The Candidates Present At The Time Of Scrutiny.
12. That It Is Relevant To Mention That No Objection Was Raised By Any Of The Candidate And No Enquiry Was Held By The Returning Officer As Provided Under Law. The Returning Officer Suo Motto Improperly Rejected The Nomination Papers Of Sri Vishwanath.
13. That Improper Rejection Of Nomination Of Sri Vishwanath Has Rendered The Election Of Sri Rasheed Mashood, Returned Candidate, As Void And The Petitioner Is Entitled To A Declaration That The Result Of The Returned Candidate Is Void."

The Returned Candidate Rasheed Masood In His Written Statement Has Stated That The Nomination Paper Of Vishwanath Had Been Rightly Rejected As He Did Not Furnish The Necessary Information In The Nomination Paper As Was Required To Be Furnished Under The Provisions Of The Act And The Rules; That The Names Of Three Proposers Of Vishwanath As Mentioned In The Nomination Paper Were Not To Be Found At The Serial Numbers Of Part No.23 Of The Electoral Roll; That The Returning Officer Was Not Supposed To And Nor Was He Duty Bound To Do Scrutiny Of The Nomination Paper At The Time Of Its Presentation; That The Scrutiny Of The Nomination Paper Is Done On The Date Of Scrutiny And At That Time If It Is Found That If There Is Any Non-compliance Of Section 33 Of The Act, Then The Returning Officer Can Reject The Nomination Paper Under Section 36 Of The Act; That The Petitioner Was Not Present At The Time Of Presentation Of The Nomination Paper Or At The Time Of Scrutiny And There Was None On Behalf Of Vishwanath Who Could Have Pointed Out To The Returning Officer That The Names Of The Three Proposers Were Entered In The Electoral Roll And Nor Has The Petitioner Disclosed The Source Of Information Or The Basis Of The Allegations Which Constitute The Material Facts.
The First Contention Of Sri Ravi Kiran Jain, Learned Senior Counsel For The Election Petitioner Is Based On The Provisions Of Section 33(4) Of The Act. It Is That The Returning Officer Should Be Presumed To Have Performed All That He Was Required To Perform Under Section 33(4) Of The Act Namely That He Had Satisfied Himself That The Names And The Electoral Roll Numbers Of The Proposers As Entered In The Nomination Paper Were The Same As Those Entered In The Electoral Roll. It Is His Contention That Only When The Returning Officer Is Satisfied That The Nomination Paper Is Valid In All Respects That He Issues A Receipt To The Candidate And, Therefore, Even Though The First, Second And Third Proposers Of The Independent Candidate Vishwanath Had Not Given Their Correct Part Number Of The Electoral Roll, It Should Be Presumed That The Returning Officer Had Been Able To Locate Their Names In The Electoral Roll Of The Constituency Since The Names Of These First, Second And Third Proposers Were Actually Contained In Part No.45 At The Serial Numbers Mentioned By Them In The Nomination Paper And Not In Part No.23. In Support Of His Contention, Learned Senior Counsel Has Placed Reliance Upon The Decisions Of The Supreme Court In Hira Singh Pal Vs. Madan Lal, AIR 1968 SC 1179 And Ram Bhual Vs. Ambika Singh, AIR 2005 SC 4333.
As Noticed Hereinabove, Under Section 33(1) Of The Act, Each Candidate Is Required To Deliver To The Returning Officer A Nomination Paper Completed In The Prescribed Form And A Candidate Not Set Up By A Recognised Political Party, Shall Not Be Deemed To Be Duly Nominated For Election From A Constituency Unless The Nomination Paper Is Subscribed By Ten Proposers Being Electors Of The Constituency. Rule 2(f) Of The Rules Defines "electoral Roll Number" Of A Person To Mean: (i) The Serial Number Of The Entry In The Electoral Roll In Respect Of That Person; (ii) The Serial Number Of The Part Of The Electoral Roll In Which Such Entry Occurs And (iii) The Name Of The Constituency To Which The Electoral Roll Relates. Rule 4 Of The Rules Provides That Every Nomination Paper Presented Under Section 33(1) Of The Act Shall Be Completed In The Appropriate Form. The Appropriate Form In The Present Case Would Be Form 2-A As It Relates To The Election Of House Of People. It Would Be Seen That In Part II Of This Form, Which Is To Be Used By A Candidate Not Set-up By A Recognised Political Party, As In The Present Case, The Proposers Must Mention The Name Of ''Component Assembly Constituency' And Also Give Their ''elector Roll Number' Which Includes Both The Part Number Of Electoral Roll And The Serial Number In That Part. It Is Obvious That Part Numbers And Serial Numbers Of The Electoral Roll Of The Constituency Concerned Of The Candidate And The Proposers Are Required To Be Given In The Nomination Form In Order To Enable The Returning Officer To Verify Whether The Candidate And The Proposers Are Registered As Electors And, Accordingly, Qualified To Be Nominated As A Candidate And For Proposing The Candidate As A Candidate For Filling The Seat. The First Three Proposers Of Vishwanath Had Not Mentioned The Correct Part Number Of The Electoral Roll In The Nomination Form As They Had Mentioned The Part Number As 23 Instead Of 45 And It Is For This Reason That The Returning Officer Had Rejected The Nomination Paper Of Vishwanath On The Date Of Scrutiny As Their Names Were Not Entered In The Electoral Roll Of The Constituency.
The Supreme Court In The Case Of Lila Krishan Vs. Mani Ram Godara & Ors., AIR 1985 SC 1073 Emphasised That It Was Important To Mention The Correct Part Number And Serial Number Of The Candidate And The Proposers In The Nomination Paper Because The Returning Officer Cannot Be Expected To Go Through The Entire Electoral Roll To Find Out The Identity Of The Candidate Or The Proposers And The Observations Are:-

"Indisputably The Insistence On Disclosure Of The Serial Number In The Prescribed Column Against The Proposer Is For The Purpose Of Identifying The Proposer And Ascertaining That He Is Competent To Propose. The Scope Of Scrutiny Is Obviously To Verify The Contents Of The Nomination Paper With A View To Ascertaining Whether The Form Is In Order And What Is Required To Be Complied With By The Election Law Has Been Duly Complied With. This Court Has Repeatedly, Held That Election Proceedings Are Strict In Nature And What Is Required To Be Performed In A Particular Manner Has To Be Done As Required And Substantial Compliance Has Ordinarily No Place While Dealing With The Act Or The Rules Made Thereunder. That Is Why An Exception Has Been Made By Inserting Sub-Section (4) Of S. 36 Of The Act.

The Returning Officer Made Reference To The Electoral Roll And Did Not Find The Name Of The Proposer Against The Disclosed Serial Number In Either Case. The High Court Has Taken The View That It Was The Obligation Of The Returning Officer To Verify The Electoral Roll And Find Out The Serial Number; The Mistake, If Any, Was Not Of Substantial Character So As To Expose The Nomination Papers To Rejection And The Rejection On Such A Ground Was Improper. To Cast The Obligation On The Returning Officer To Look Through The Entire Electoral Roll Of A Particular Part With A View To Finding Out The Identity Of The Proposer Is Not The Requirement Of The Law. To Read That As An Obligation Is Likely To Lead To An Unworkable Position. ................ To Cast The Obligation Of Verifying The Entire Electoral Roll Of A Particular Part Is Actually Requiring The Returning Officer To Do Almost An Impossible Feat. ............." (emphasis Supplied)

In Brij Mohan Vs. Sat Pal, AIR 1985 SC 847 The Supreme Court Considered Whether In The Light Of The Provisions Of Section 33(4) Of The Act An Inference Can Be Drawn That The Returning Officer Gives An Assurance To The Candidate Filing The Nomination Paper That There Is No Defect In The Nomination Paper Even If The Candidate Has Wrongly Mentioned The Part Numbers And Serial Numbers Of The Electoral Rolls In The Nomination Paper When He Gives The Receipt To The Candidate. It Is In This Context That The Supreme Court Examined The Nature Of The Enquiry That Is To Be Done By The Returning Officer At The Time Of Delivery Of Nomination Paper And Emphasised That At This Stage It Is Only A Peripheral Enquiry Since It Is At The Time Of Scrutiny Which Is Done In The Presence Of All Concerned That The Nomination Papers Come Up For Some Detailed Consideration At The Hands Of The Returning Officer Against Whom There Is No Estoppel With Regard To The Statutory Duty Of Scrutiny. The Relevant Portion Of The Decision Is :-
"...........Even According To Mr. Kacker The Enquiry By The Returning Officer At The Time Of Delivery Of The Nomination Paper Is Only A Peripheral Enquiry In Which The Returning Officer In The Present Case Seems To Have Been Satisfied By Finding Two Numbers Each Given In Regard To The Candidate And The Proposer That They Were The Serial Number And Part Number Of The Electoral Roll Which The Proposer Was Bound To Give Correctly In Regard To The Candidate And Himself In The Nomination Paper. ................... The Candidate And The Proposer Are Always Expected To Go Fully Prepared To Meet Any Objection That May Be Raised By Any Candidate Or Even By The Returning Officer Himself Suo Motu At The Time Of The Scrutiny And They Cannot Be Expected To Go Any Less Prepared Merely Because The Returning Officer Had Received The Nomination Paper Without Raising Any Objection. It Is At The Time Of Scrutiny Which Is Done In The Presence Of All Concerned That The Nomination Papers Come Up For More Detailed Consideration At The Hands Of The Returning Officer Against Whom There Is No Estoppel In Regard To The Statutory Duty Of Scrutiny." (emphasis Supplied)

It Would Thus Be Seen That In Brij Mohan (supra), The Supreme Court Held That For The Purposes Of Section 33(4) Of The Act The Satisfaction Of The Returning Officer Would Be Sufficient If The Returning Officer Finds That The Serial Numbers And Part Numbers Of The Proposers Are Mentioned In The Nomination Paper, Since The Proposers Are Duty Bound To Give The Correct Part Number And Serial Number In The Nomination Form. This Is For The Reason That At The Stage Of Filing Of The Nomination Paper Only A Peripheral Enquiry Is Required To Be Conducted By The Returning Officer. Thus, At The Time Of Delivery Of The Nomination Paper, It Is Not Necessary For The Returning Officer To Examine Whether The Part Numbers And Serial Numbers Mentioned By The Proposers In The Nomination Form Are The Same As Those Entered In The Electoral Rolls. The Supreme Court Also Observed That Such Examination Has To Be Done At The Time Of Scrutiny Of The Nomination Papers And There Can Be No Estoppel Against The Returning Officer If Such A Defect Is Not Noticed At The Time Of Delivery Of The Nomination Paper.
This Apart, It Also Needs To Be Mentioned That There Is No Deeming Clause In The Act Which Provides That Once The Receipt Is Issued By The Returning Officer To The Candidate It Should Be Presumed That The Name Of The Candidate Or His Proposers Exist In The Electoral Rolls And The Nomination Cannot Be Rejected On This Ground At The Time Of Scrutiny. On The Contrary, Under Section 36(2) Of The Act, The Returning Officer Is Required To Examine The Nomination Papers At The Time Of Scrutiny And Can Even On His Own Motion Reject The Nomination Paper On The Ground That There Has Been A Failure To Comply With Any Of The Provisions Of Section 33 Of The Act. As Seen Above, Under The First Proviso To Section 33(1) Of The Act, A Candidate Not Set Up By A Recognised Political Party Shall Not Be Deemed To Be Duly Nominated For Election From A Constituency Unless The Nomination Paper Is Subscribed By Ten Proposers Being Electors Of The Constituency.
Learned Senior Counsel For The Petitioner Has, However, Placed Great Emphasis Upon The Proviso To Section 33(4) Of The Act Which Provides That The Returning Officer Shall Permit Any Such Misnomer Or Inaccurate Description Or Clerical, Technical Or Printing Error Contemplated Under The Proviso 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.
There Is No Averment In The Election Petition That At The Time Of Delivery Of The Nomination Paper To The Returning Officer, The Independent Candidate Vishwanath Was Prevented By The Returning Officer From Making Such Corrections In The Nomination Paper And Nor Is There Any Averment That A Direction Had Been Issued By The Returning Officer That Such Inaccurate Description Or Clerical Error In The Nomination Paper Shall Be Overlooked.
Learned Senior Counsel For The Petitioner Has Also Contended That It Was The Duty Of The Returning Officer To Scrutinise The Nomination Paper When It Was Presented To Him For Finding Out Whether There Was Any Clerical Mistake In The Same And, Therefore, He Could Not Have Rejected The Nomination Paper Of Vishwanath On The Date Of Scrutiny And In Support Of This Contention He Has Placed Reliance Upon Certain Observations Made By The Supreme Court In Hira Singh Pal (supra) And Ram Bhual (supra).
In Hira Singh Pal (supra), The Supreme Court Made The Following Observation:-
"............The Returning Officer Had The Duty To Scrutinise The Nomination Papers When They Were Presented For Finding Out Whether There Were Any Clerical Mistakes In The Same. Under That Provision He Was Required To Find Out Whether The Names Of The Candidates As Well As Their Proposers And Seconders Were Correctly Mentioned In The Nomination Papers. He Was Also Required To See Whether Their Place In The Electoral Roll Was Correctly Mentioned In The Nomination Papers. Evidently The Returning Officer Failed In His Duty. Further, When He Scrutinised The Nomination Papers On January 21, 1967, He Had Before Him All The Require Information. It May Be That While Scrutinising The First Nomination Paper (marked As No.5) He Had No Material Before Him To Find Out Whether The Proposer Of The Candidate Was Really An Elector In The Constituency Or Not But When He Came To The Second Nomination Paper Where The Proposer's Name As Well As His Place In The Electoral Roll Is Correctly Mentioned, It Was Improper On His Part To Have Rejected That Nomination Paper. It Is True That In That Nomination Paper, It Had Been Mentioned That The Candidate's Name Is Found At Serial No.504 Of Part 2 Of 9-Arki Assembly Constituency Though In Fact It Is Found At Serial No.504 In Part No.12 Of That Constituency; But From The First Nomination Paper, The Returning Officer Could Have Easily Found Out The Correct Part Of The Electoral Roll. All The Required Information Was Before Him. ................ Therefore It Is Quite Clear That The Respondent's Nomination Papers Were Improperly Rejected. ..............."

In The Aforesaid Decision, The Supreme Court Found That The Candidate Whose Nomination Paper Had Been Rejected Had In Fact Filed Two Nomination Papers And While Examining The Second Nomination Paper, The Returning Officer Could Have Easily Found Out The Correct Part Number In The Electoral Roll From The First Nomination Paper. In Is In Such Circumstances That The Supreme Court Observed That The Nomination Paper Had Been Improperly Rejected. It Is True That The Supreme Court Had Observed In The Aforesaid Decision That It Was The Duty Of The Returning Officer To Scrutinise The Papers At The Time Of Presentation To Find Out Whether There Was Any Clerical Mistake In The Same And That Evidently The Returning Officer Had Failed In His Duty, But This Decision Does Not Hold That Upon Failure To Perform Such Duty, The Nomination Paper Cannot Be Rejected Under Section 36(2) Of The Act If The Returning Officer Finds That The Part Numbers And Serial Numbers Of The Proposers Mentioned In The Nomination Paper Are Not The Same As Mentioned In The Electoral Rolls Of The Constituency.
It Also Needs To Be Noticed That The Aforesaid Decision Of The Supreme Court In Hira Singh Pal (supra) Was Subsequently Distinguished By The Supreme Court In Brij Mohan (supra) And The Relevant Observations Are As Follows:-
"Learned Counsel For The Parties Invited Our Attention To Certain Decisions. We Think It Necessary To Refer To Only Three Of Them. In Hira Singh Pal V. Madan Lal, AIR 1968 SC 1179 A Candidate Had Filed Two Nomination Papers And Both Of Them Were Rejected By The Returning Officer. ..............
...............
That Was A Case Where From A Mere Look At The Two Nomination Papers And The Electoral Rolls' The Returning Officer Could Have Found Out The Correct Part Of The Electoral Roll And All The Required Materials Were Before Him And, Therefore, It Has Been Held That The Rejection Of The Nomination Papers Was Improper. But That Is Not The Case Here. There Was No Such Prima Facie Material Before The Returning Officer In The Present Case To Find Out The Correct Part Number Of The Electoral Roll In Which The Candidate Dog Ram And The Proposer P.W. 2 Were Registered As Electors. There Were As Many As 77000 Voters Registered In The 97 Parts Of The Electoral Roll In Jind Constituency And Even Amar Heri Village Had Two Part Numbers In The Electoral Roll. ................ The Returning Officer Who Is Expected To Hold Only Such Summary Enquiry As He Thinks Fit Is Not Expected To Himself Find Out The Correct Part Number Of The Electoral Roll By Making A Roving Enquiry And Questioning The Candidate Or His Proposer." (emphasis Supplied)

The Observations Made By The Supreme Court In The Case Of Ram Bhual (supra) Also Do Not Help The Petitioner As In That Case The Election-petitioner Was Able To Establish That The Independent Candidate Sita Ram Whose Nomination Paper Had Been Rejected Had Actually Pointed Out To The Returning Officer At The Time Of Scrutiny That There Was A Clerical Error In The Nomination Paper While Describing The Serial Number Of Sant Lal Who Was One Of His Proposers. It Is In This Context That The Supreme Court Examined The Provisions Of Section 33(4) Of The Act And Made The Following Observations:-
"In The Pleadings, The Election-petitioner Had In Paragraphs 7 And 16 Very Clearly Set Out What, According To Him, Transpired Before The Returning Officer At The Time Of The Scrutiny Of Nominations. It Was Specifically Pleaded That P.W.2 Had Pointed Out To The Returning Officer That When Though There Was An Error In Showing The Serial Number In The Voters' List Of Sant Lal, He Was Really The Voter, Shown At Serial No.352 And In Spite Of It Being So Shown The Returning Officer Had Rejected The Nomination Of P.W.2. This Pleading Has Not Been Denied By The Appellant In His Written Statement Either While Answering Paragraph 7 Or While Answering Paragraph 16. Of Course, If One Applies The Doctrine Of Non-traverse, It Can Be Said That On The Pleadings, The Case Of The Election Petitioner On This Aspect Stands Established. The Election-petitioner Examined Himself And Spoke To The Fact That Sita Ram At The Time Of Scrutiny Had Pointed Out That There Was Only A Clerical Error While Describing The Serial Number Of Sant Lal Who Was One Of His Proposers In The Voters' List And That There Was No Substantive Defect In The Nomination. ...........
................It Is In The Context Of The Proviso To Section 33(4), That The Case Set Up By The Appellant, Of Sita Ram Drawing The Attention Of The Returning Officer To The Defect Being Only An Error In The Serial Number And That Sant Lal, The Ninth Proposer, Was Actually At Serial No.352 On The Same Page Of The Voters' List Assumes Great Significance. It Is A Minor Defect Which Obviously Should Have Been Got Corrected By The Returning Officer Even While Accepting The Nomination And Certainly He Could Not Have Rejected The Nomination On That Ground In The Light Of Section 36(4) Of The Act. ............." (emphasis Supplied)

In View Of The Aforesaid Discussion, It Is Not Possible To Accept The Contention Of The Learned Senior Counsel For The Petitioner That The Returning Officer Had Satisfied Himself On The Date Of Presentation Of The Nomination Paper That The Names And The Electoral Roll Numbers Of The First, Second And Third Proposers As Entered In The Nomination Paper Were The Same As Contained In The Electoral Roll Of The Constituency And The Nomination Paper Was Valid In All Respects Since The Receipt Was Issued To The Independent Candidate Vishwanath.
Learned Senior Counsel For The Petitioner Then Submitted That In Any View Of The Matter, The Defect In Mentioning The Wrong Part Number Of The Electoral Roll By The First, Second And Third Proposers Of The Independent Candidate Vishwanath Was Not Of A Substantial Character And, Therefore, The Returning Officer Should Not Have Rejected The Nomination Paper Of Vishwanath. This Submission Is Based On The Provisions Of Section 36(4) Of The Act Which Provides That The Returning Officer Shall Not Reject Any Nomination Paper On The Ground Of Any Defect Which Is Not Of A Substantial Character.
It Would, Therefore, Be Necessary To Examine What Errors Would Constitute Defects Of A Substantial Character, Particularly With Regard To Errors In The Electoral Roll Numbers Of The Candidate And The Proposers.
In This Context The Decision Of The Supreme Court In Brij Mohan (supra) Needs To Be Referred Wherein It Was Observed:-
"................. It Is Not Possible To Say Generally And In The Abstract That All Errors In Regard To Electoral Roll Numbers Of The Candidate And The Proposer In The Electoral Rolls Or Nomination Papers Do Not Constitute Defects Of A Substantial Character. They Would Not Be Defects Of A Substantial Character Only If At The Time Of The Scrutiny The Returning Officer Either By Himself With The Materials Placed Before Him During The Scrutiny Or With The Assistance Of The Candidate Or His Proposer Or Any Other Person Is Able To Find Out The Correct Serial Number Of The Candidate And The Proposer By Reference To The Correct Part Number Of The Electoral Roll. If That Is Not The Case, He Would Be Committing A Grave Error By Accepting The Nomination Paper Without Verifying Whether The Candidate Is A Voter In That Or Any Other Constituency Of The State And Whether The Proposer Is A Voter In That Constituency. .............." (emphasis Supplied)

The Aforesaid Observations Were Subsequently Endorsed By The Supreme Court In Lila Krishan (supra) And The Relevant Observations Are :-
..................Defects Covered By The Proviso To S. 33(4) Could Easily Be Resolved If People Authorised Under S. 36(1) Of The Act Are Present At The Time Of The Scrutiny. What Could Be Resolved Or Overlooked In Case Proper Steps Were Taken In Due Time Has Become A Major Issue Leading To Rejection Of Nomination Papers In The Instant Case Mainly On Account Of The Absence Of The Candidates, Their Election Agents Or Persons Interested In Them At The Time Of Scrutiny. No One Was Available, For Instance, When The Returning Officer Took Up The Nomination Paper Of Mani Ram Chapola, To Indicate To The Returning Officer That His Serial Number In The Electoral Roll Was 26 And Not 126. If This Had Been Pointed Out And On Summary Enquiry The Returning Officer Was Satisfied That It Was A Mistake, Clerical In Nature, And The Identity Of Brij Bhushan Was Not In Dispute, There Would Have Been End Of The Matter. If The Correlation Has Not Been Made And The Returning Officer Has No Assistance To Fix Up The Identification It Cannot Be Said To Be A Defect Not Of Substantial Character. We Reiterate That It Could Not Be A Statutory Obligation Of The Returning Officer To Scrutinise The Electoral Roll For Finding Out The Identity Of The Proposer When The Serial Number Turns Out To Be Wrong. But If Interested And Competent Persons Point Out To The Returning Officer That It Is A Mistake, It Would Certainly Be His Obligation To Look Into The Matter To Find Out Whether The Mistake Is Inconsequential And Has, Therefore, Either To Be Permitted To Be Corrected Or To Be Overlooked.

Every Genuine Candidate Is Expected To Be Very Much Interested In Ensuring Clearance Of His Nomination Paper At The Stage Of Scrutiny. It Is Indeed Surprising That Before Scrutiny Was Done And The Nomination Papers Were Accepted By The Returning Officer, The Two Candidates And People Interested In Them Went Away From The Place Of Scrutiny And Did Not Remain Available To The Returning Officer. In The Circumstances, If The Nomination Papers Have Been Rejected For Mistakes In The Nomination Papers It Is The Candidates Themselves Who Have To Thank Their Lot And No Mistake Can Be Found With The Returning Officer. We May Not Be Understood To Say That A Mistake Of The Type If Properly Clarified Would Not Be Unsubstantial In Character. But If The Returning Officer Is Not In A Position To Correlate And Identify The Proposer The Mistake Would Indeed Be Not One Which Can Be Covered By Sub-Section (4) Of S. 36 Of The Act. That View Has Been Taken Recently By This Court In Brij Mohan V. Sat Pal Reported In AIR 1985 SC 847, To Which Two Of Us Are Parties. We Endorse The Ratio Of The Decision And Applying The Same, We Agree With Mr Sibal That The Nomination Papers Were Validly Rejected In This Case..............." (emphasis Supplied)

Observations To The Same Effect Were Also Made By The Supreme Court In Mathura Prasad Vs. Ajeem Khan, AIR 1990 SC 2274, And Are As Follows:-
"..............It Depends On The Facts And Circumstances Of Each Case To Find As To What Mistake In A Nomination Paper Can Be Considered A Mistake Of Substantial Nature. It Is Correct That The Returning Officer Should Not Reject A Nomination Paper Merely On A Mistake Of Technical Or Formal Nature, Where The Identity Of The Candidate Can Be Ascertained By Him On The Material Made Available To Him. He Should Also Give An Opportunity To The Candidate Or His Representative Present At The Time Of Scrutiny To Remove The Defect. However, In Case Neither The Candidate Nor His Representative Be Present And Without Removing Such Defect In The Nomination Paper The Identity Of The Candidate Cannot Be Ascertained, Then There Is No Statutory Duty Cast On The Returning Officer To Make A Roving Enquiry By Going Through The Material Placed Before Him And To Remove Such Defect Himself.
...................
In The Case Before Us Even If It May Be Considered For A Moment That By Making Some Effort By The Returning Officer, The Identity Of Ramprakash Could Have Been Ascertained, There Being No Statutory Duty Cast On Him To Do So Coupled With The Fact That Neither The Candidate Ramprakash Nor Any Representative On His Behalf Was Ready To Assist The Returning Officer In Curing The Defect And In Proving The Correct Identity Of Ramprakash, It, Cannot Be Said That The Returning Officer Committed Any Error In Rejecting The Nomination Paper Of Ramprakash. ............."

In This Connection, It May Also Be Useful To Refer To The Decision Of The Supreme Court In Rafiq Khan & Anr. Vs. Laxmi Narayan Sharma, (1997) 2 SCC 228, Wherein It Was Observed :-

"........... Unless The Defect Is One Which Can Be Per Se Noticed And Corrected At The Stage Of Section 33(4) Or Later At The Stage Of Section 36(4) Without The Need To Refer To Various Other Documents The Same Cannot He Said To Be Of A Non-substantial Character. In The Instant Case Also The Defect As To The Number Could Have Been Said To Be Not Of A Substantial Character If The Appellant Had Shown That The Name Of The Proposer Appeared On The Very Same Sheet At Serial Number 138 Instead Of 136 I.e. Only Two Steps Away. In That Case One Can Say That The Returning Officer Could Have Verified The Same If He Had Exercised Due Diligence. In Such A Situation Even If The Appellant And His Proposer Were Absent The Court Could Have Taken The View That The Defect Was Not Of A Substantial Nature. But The Defect Cannot Be Noticed Unless The Returning Officer Is Required To Sift Through Various Other Documents Or The Voters' List Or Is Required To Undertake An Enquiry As To Whether The Proposer's Name Appears Anywhere Else In The Voters' List. The Defect May Not Be One Capable Of Being Cured Without The Assistance Of The Candidate Or His Proposer And In Such A Situation He Would Be Justified In Rejecting The Nomination Paper. In The Instant Case Since There Is No Evidence To Suggest That The Name Of The Proposer Appeared On That Very Sheet At Serial Number 138 Instead Of 136 In The Electoral Roll, We Find It Difficult To Find Fault With The Rejection Of The Nomination Paper By The Returning Officer." (emphasis Supplied)

Learned Senior Counsel For The Petitioner Has Placed Reliance Upon The Decision Of The Supreme Court In Bhogendra Jha Vs. Manoj Kumar Jha, AIR 1996 SC 2099 But This Decision Does Not Advance The Cause Of The Election Petitioner. The Election Petition Was Filed By An Elector Challenging The Rejection Of The Nominations Of Pawan Kumar Pathak And Lal Bahadur Singh. The Nominations Of Pawan Kumar Pathak And Lal Bahadur Singh Were Rejected By The Returning Officer At The Time Of Scrutiny On The Ground That The Serial Number/part Number Of The Proposers Mentioned In Their Nomination Papers Did Not Tally With Those Mentioned In The Electoral Rolls. In The Nomination Paper Filed By Pawan Kumar Pathak, The Name Of The Proposer Was Mentioned At Serial No.113, Part No.190 But In The Electoral Roll It Was Mentioned At Serial No.413, Part No.190. In The Nomination Paper Filed By Lal Bahadur Singh, The Name Of The Proposer Was Mentioned In Part No.75 But In The Electoral Roll It Was Mentioned In Part No.74. The High Court Found That The Nomination Paper Had Been Improperly Rejected By The Returning Officer And Accordingly Declared The Election Of The Returned Candidate To Be Void. The Returned Candidate Filed An Appeal Before The Supreme Court. The Supreme Court Observed That Under Section 36(4) Of The Act, Even If No Objection Is Raised By Candidates In Respect Of The Nomination Papers, The Returning Officer On His Own Motion Can Reject The Nomination Paper If He Finds That The Defect Is Of A Substantial Character And Placing Reliance Upon The Decision Of The Supreme Court In Rafiq Khan (supra), It Was Observed:-
"Under S. 36(4) Of The Act, The Returning Officer Shall Not Reject Any Nomination Paper On The Ground Of Any Defect Which Is Not Of A Substantial Character. Under S. 36(1), The Returning Officer Has The Power To Conduct An Enquiry. It Is Settled Law That It Is A Summary Enquiry. When The Returning Officer Scrutinises The Nomination Paper, The Parties Or The Nominees Are Required To Be Present And If They Seek Liberty To Place The Necessary Material, The Returning Officer Is Enjoined To Adjourn The Case To The Next Day. In Case They Are Able To Place The Necessary Material And Satisfy The Returning Officer Of The Correctness Of The Enrolment As A Candidate Or The Address Of The Nominee, The Returning Officer Would Consider The Same. But He Is Not Expected To Sift The Evidence And Find The Placement In The Electoral Roll, The Name And Particular Of The Nominee.
In This Case, P.Ws. 4 And 6 Who Were The Candidate And Had Filed Their Nominations, Though Admittedly Were Present Did Not Ask For An Opportunity Nor Attempted To Satisfy The Returning Officer As To The Correctness Of The Particulars Furnished By Them In The Nomination Papers Of Their Proposers. Therefore, The Returning Officer Was Not Expected To Make A Roving Enquiry To Find Out Whether The Names Of The Proposers Found Place In The Electoral Roll. It Is The Duty Of The Candidate/proposer To Satisfy The Returning Officer." (emphasis Supplied)

Learned Senior Counsel For The Petitioner Has Also Placed Reliance Upon The Decision Of The Supreme Court In Ram Awadesh Singh Vs. Smt. Sumitra Devi & Ors., AIR 1972 SC 580 Wherein The Supreme Court Observed That A Mis-description As To Electoral Roll Number Of The Candidate Or Of The Proposer In The Nomination Paper Is Not A Material Defect. In This Case Ram Awadesh Singh Had Been Declared Elected In The Mid-term Election For The Bihar Legislative Arrah Assembly Constituency. Sumitra Devi Who Was The Nearest Rival Of The Returned Candidate Filed The Election Petition On The Principal Ground That The Result Of The Election Had Been Materially Affected By The Improper Acceptance Of The Nomination Paper Of Ram Awadesh Singh. The Name Of The Returned Candidate Was Entered In The Arrah Constituency When He Filed His Nomination Paper But In A Separate Supplementary List His Name Had Been Deleted Without Any Notice To Him. In Such Circumstances He Entered His Electoral Roll Number As Shown In The Electoral Roll Of Arrah Constituency. At The Time Of Scrutiny No One Objected To The Nomination Paper Of Ram Awadesh Singh And The Returning Officer Accepted His Nomination Paper. The Objection To The Acceptance Of The Nomination Paper Of The Appellant Was For The First Time Taken In The Election Petition By Sumitra Devi. It Is In This Context That The Supreme Court Observed:-
"Our Attention Has Not Been Invited To Any Decision Either Of This Court Or Of Any High Court Or Even Of A Tribunal Where The Returning Officer Had Accepted The Nomination Paper Of A Qualified Candidate, The Same Was Found To Be Improper Because Of Some Defect In The Nomination Paper. The Case Of Rejection Of A Nomination Paper By The Returning Officer Stands On A Footing Different From That Of An Acceptance Of A Nomination Paper. In The Latter Case The Main Though Not The Only Question, To Be Considered Is Whether The Candidate Is Qualified To Be A Candidate. The Very Fact That The Law Requires The Returning Officer To Look Into The Nomination Paper, When Filed And Get Any Mistake Regarding The Name Or Electoral Number Of The Candidate Or His Proposer Corrected Shows That The Mistake Regarding Them Is Not A Material Defect." (emphasis Supplied)

It Also Needs To Be Mentioned That The Aforesaid Decision Of The Supreme Court In Ram Awadesh Singh (supra) Was Considered And Distinguished By The Supreme Court In Its Subsequent Judgment Rendered In Brij Mohan (supra) Wherein It Was Observed:-
"In Ram Awadesh Singh V. Sumitra Devi, (1972) 2 SCR, 674: (AIR 1972 SC 580) The High Court Set Aside The Election Of The Appellant Before This Court On The Ground That His Nomination Paper Had Been Improperly Accepted And The Election Had Been Materially Affected Thereby. It Was Proved That The Returning Officer Did Look Into The Nomination Paper, But Unfortunately He Did Not Notice That The Appellant's Name Had Been Removed From The Arrah Constituency. ..................... This Decision Will Not Apply To The Facts Of The Present Case Where With The Serial Numbers And The Numbers Given As Part Numbers Of The Candidate And The Proposer In The Nomination Paper Their Names Could Not Be Traced In The Concerned Parts As Registered Voters. The Returning Officer, Therefore, Felt Helpless And Asked The Candidate To Point Out The Names Of Himself And His Proposer In The Electoral Roll Which He Did Not Do."

Thus, From The Decisions Of The Supreme Court Referred To Above, It Transpires That The Defects In The Nomination Paper Of A Candidate Will Not Be Of A Substantial Character If At The Time Of Scrutiny The Returning Officer Either By Himself With The Materials Placed Before Him During The Scrutiny Or With The Assistance Of The Candidate Or His Proposer Or Any Other Person Is Able To Find Out The Correct Serial Number And Part Number Of The Candidate And The Proposer By Reference To The Correct Part Number And Serial Number Contained In The Electoral Roll Of The Constituency But If The Correlation Has Not Been Made And The Returning Officer Has No Assistance To Identify The Proposers Mentioned In The Nomination Papers Then The Defect Would Be Of A Substantial Character Because In Such Circumstances There Is No Statutory Duty Cast On The Returning Officer To Make A Roving Enquiry By Going Through The Materials Placed Before Him To Remove Such Defects Himself If The Candidate Or His Representative Is Not Present And Without Removing Such Defects In The Nomination Paper, Identity Of The Proposers Cannot Be Examined.
In Such Circumstances When A Wrong Electoral Roll Number Is Mentioned In The Nomination Form, It Is Absolutely Necessary For An Election Petitioner To Establish By Cogent Evidence That The Correct Electoral Roll Number Had Either Been Found Out By The Returning Officer On His Own Motion Or It Had Been Pointed Out To The Returning Officer By The Candidate Filing The Nomination Paper Or Some Other Person Either At The Time Of Delivery Of The Nomination Paper Or At The Time Of Scrutiny Of The Nomination Paper, In Order To Succeed In His Contention That The Defect Is Not Of A Substantial Character.
In This Connection, The Election Petitioner Has Stated In Paragraph 11 Of The Election Petition That Names Of First, Second And Third Proposers Of The Independent Candidate Vishwanath Find Place In The Electoral Rolls In Part No.45 At The Same Serial Numbers As Mentioned In The Nomination Paper And That The Electoral Roll Of Part No.45 Was Very Much Before The Returning Officer At The Time Of Scrutiny And The Same Was Pointed Out To Him By The Candidates Present At The Time Of Scrutiny. There Is, However, No Averment In The Election Petition That Vishwanath Or Any Other Person Present Had Pointed Out The Correct Part Numbers Of The First, Second And Third Proposers To The Returning Officer At The Time Of Delivery Of Nomination Paper And All That Has Been Stated In Paragraph 9 Of The Election Petition Is That In Terms Of Section 33(4) Of The Act, The Returning Officer Had Checked And Satisfied Himself That The Names And The Electoral Roll Numbers Of The Proposers As Entered In The Nomination Paper Were The Same As Those Entered In The Electoral Roll. While The Contents Of Paragraph 9 Of The Election Petition Have Been Sworn On The Basis Of Records, The Contents Of Paragraph 11 Of The Petition Have Been Sworn Partly On The Basis Of Information Received And Partly On The Basis Of Records.
The Contents Of Paragraph 9 Of The Election Petition Have Been Denied In Paragraph 9 Of The Written Statement Filed By The Returned Candidate And It Has Been Stated That The Returning Officer Is Not Duty Bound To Do Formal Scrutiny Of Nomination Paper At The Time Of Its Presentation And That The Nomination Papers Are Examined On The Date Of Scrutiny On Which Date The Nomination Papers Can Be Rejected For Non-compliance Of The Provisions Of Section 33 Of The Act. It Has Also Been Stated That The Petitioner Has Not Claimed That He Was Present When The Nomination Paper Was Presented By Vishwanath. The Contents Of Paragraph 11 Of The Election Petition Have Also Been Denied In Paragraph 11 Of The Written Statement. It Has Been Stated That There Was None On Behalf Of Vishwanath Who Could Have Informed The Returning Officer About The Correct Part Numbers Of The First, Second And Third Proposers.
It Is, Therefore, Clear That The Contents Of Paragraph 9 Of The Election Petition Are Based Only On The Presumption That The Returning Officer Had Performed His Duty Under Section 33(4) Of The Act. It Is Also Clear That Paragraph 11 Of The Election Petition Does Not Disclose The Names Of The Candidates Present At The Time Of Scrutiny Whom The Petitioner Claims Had Pointed Out To The Returning Officer The Correct Part Numbers Of The First, Second And Third Proposers Of Vishwanath. There Is No Categorical Statement By The Election Petitioner That Such Candidates Had Actually Informed The Election Petitioner About This Fact. It Also Needs To Be Noticed That There Is No Averment In The Election Petition That The Petitioner Was Present When Vishwanath Delivered The Nomination Paper To The Returning Officer On 23rd April, 2004 Or When The Scrutiny Was Done By The Returning Officer On 24th April, 2004.
The Election Petitioner Saleem Masood (PW-1) Gave His Examination-in-chief Through An Affidavit. He Has Stated That To His Knowledge None Of The Candidates Had Raised Any Objection To The Nomination Paper Of Vishwanath But The Returning Officer Rejected The Nomination Paper Of Vishwanath On The Date Of Scrutiny Even Though The Ten Proposers Were Valid Electors Whose Names Were Entered In The Electoral Rolls And This Fact Was Told To Him By Badrul Who Was Also An Independent Candidate In The Said Election. In His Cross-examination, He Stated That Badrul Had Informed Him That The Nomination Paper Of Vishwanath Had Been Rejected Since The Names Of The Three Proposers Did Not Appear In The Voters' List And Badrul Had Also Informed Him That The Names Of The Said Three Proposers Were Contained In The Voters' List And That His Statement Was Based On The Information Given To Him By Badrul Since He Had No Personal Knowledge Of The Facts. He Further Stated That Since He Was Not Present When The Nomination Paper Of Vishwanath Was Filed, He Had No Knowledge Of The Proceedings That Had Actually Taken Place Before The Returning Officer.
It Is, Therefore, Clear That The Election Petitioner Has Not Stated That Badrul Or Any Other Candidate Present Either At The Time Of Delivery Of Nomination Paper By Vishwanath Or At The Time Of Its Scrutiny Had Informed The Returning Officer That The Names Of The First, Second And Third Proposers Of Vishwanath Were Actually Contained In Part No.45 And Not In Part No.23 At The Same Serial Numbers As Mentioned In The Nomination Paper.
Badrul (PW-2) In His Examination-in-chief Filed Through An Affidavit, Has Stated That At The Time Of Scrutiny He, Vishwanath And Mohd. Husain Jilani And Other Candidates Were Present And When The Nomination Paper Of Vishwanath Was Taken Up For Scrutiny, Vishwanath Told The Returning Officer That The Names Of The First, Second And Third Proposers Were Contained In Part No.45 Of The Electoral Roll Of The Constituency At The Same Serial Numbers Mentioned In The Nomination Paper. He Also Stated That No Candidate Or His Agent Who Were Present At The Time Of Scrutiny, Raised Any Objection Against The Nomination Paper Of Vishwanath. In His Cross-examination, He Stated That He Had Contested The 2004 Lok Sabha Election As An Independent Candidate From 80, Saharanpur Constituency And That He Had Met Vishwanath During The Scrutiny Of The Nomination Papers. He Further Stated That When He Reached The Office Of The Returning Officer, He Found That His Nomination Paper Had Been Scrutinised And Had Also Been Accepted But Even After Having Come To Know Of This Fact, He Stayed In The Office For Some Time To Find Out What Was Going On. Initially He Stated That He Had Not Raised Objection With Regard To The Nomination Paper Of Any Candidate, But He Immediately Thereafter Stated That He Had Raised Objections Against The Nomination Paper Of Rasheed Masood (returned Candidate). He Also Stated That He Did Not Recollect Whether The Nomination Paper Of Vishwanath Was Scrutinised Before The Scrutiny Of His Nomination Paper Or After That. He Also Stated That The Nomination Form Of Vishwanath Was Rejected In His Presence And When The Objection Was Raised That The Names Of The Proposers Were Not Contained In The Voters' List, It Was Pointed Out By "some Persons" That The Names Of The Proposers Are Contained In The Voters' List. He Also Stated That He Did Not Know The Persons Who Had Specifically Pointed Out This Fact And That The Scrutiny Of The Nomination Form Of Mohd. Husain Jilani Was Done Together With The Scrutiny Of His Nomination Paper.
Thus, In His Examination-in-chief Badrul (PW-2) Has Stated That On The Date Of Scrutiny Vishwanath Had Pointed Out The Correct Part Number To The Returning Officer But In His Cross-examination He Stated That ''some Persons' Had Pointed Out To The Returning Officer That The Names Of The Proposers Of Vishwanath Were Contained In The Voters' List But He Did Not Know The Persons Who Had Pointed Out This Fact To The Returning Officer. There Is, Therefore, A Marked Contradiction In His Statement. It Also Needs To Be Noted That Badrul Has Not Stated That He Had Pointed Out The Correct Electoral Roll Numbers Of The Three Proposers Of Vishwanath. It Also Needs To Be Mentioned That Badrul In His Cross-examination Had Stated That He Did Know The Time When His Nomination Paper Was Scrutinised Because When He Reached The Office, His Nomination Paper Had Already Been Scrutinised And It Was Found To Be In Order But Subsequently He Stated That The Scrutiny Of Nomination Form Of Mohd. Husain Jilani Was Being Done Together With The Scrutiny Of His Nomination Paper. This Apart, As Will Be Immediately Seen, Vishwanath In His Examination-in-chief Has Categorically Stated That He Did Not Go For Scrutiny And Nor Did He Authorise Any Person To Be Present At The Time Of Scrutiny. The Statement Of Badrul (PW-2), Therefore, Cannot Be Believed.
Vishwanath (DW-2), In His Examination-in-chief Which He Filed Through An Affidavit, Stated That He Had Delivered His Nomination Paper To The Returning Officer On 23rd April, 2004 Which Was The Last Date For Filing The Nomination Paper And At The Time Of Delivery Of The Nomination Paper The Returning Officer Asked Him Whether All The Facts Had Been Correctly Stated And When He Gave The Answer In The Positive, The Returning Officer Took The Nomination Paper And Kept It. He Further Stated That Thereafter The Returning Officer Gave Him A Receipt Which Mentioned That The Scrutiny Will Be Done On 24th April, 2004 But He Did Not Go For Scrutiny On 24th April, 2004 And Nor Did He Authorise Any Other Person To Be Present At The Time Of Scrutiny Since He Thought That He Had Correctly Stated All The Facts In The Nomination Paper And It Was Only The Next Day That He Learnt From The Newspaper That His Nomination Paper Had Been Rejected. He Also Stated That He Did Not Complain To Any Person About The Rejection Of His Nomination Paper And He Took Back The Security Amount Of Rs.10,000/- Which He Had Deposited. He Also Stated That He Did Not Know Saleem Masood (election Petitioner) And Nor Had He Informed Him Anything About His Election. In His Cross-examination He Stated That He Did Not Know Whether The Person Who Had Received His Nomination Paper On 23rd April, 2004 Had Checked The Same From The Voters' List And That He Did Not Go On The Date Of Scrutiny Since Whatever Was Mentioned In The Nomination Paper Was Correct. He Has Further Stated That The Names Of The Ten Proposers Had Been Written At Page 15 Of The Election Petition And All The Ten Proposers Had Signed And The Names Of All The Proposers Had Been Mentioned In The Voters' List.
It Is, Therefore, Clear That Even Vishwanath Whose Nomination Paper Had Been Rejected By The Returning Officer On The Date Of Scrutiny And Which Rejection Is Under Consideration In This Election Petition Has Not Stated That At The Time When The Nomination Paper Was Delivered He Or Any Other Person On His Behalf Had Pointed Out To The Returning Officer The Correct Part Numbers Of The First, Second And Third Proposers And Nor Has He Stated That They Were Pointed Out To The Returning Officer At The Time Of Scrutiny. In Fact, He Has Categorically Stated That He Did Not Go On The Date Of Scrutiny And Nor Had He Authorised Any Person On His Behalf To Be Present At The Time Of Scrutiny Of The Nomination Paper. The Statement Of Badrul (PW-2), Therefore, That Vishwanath Was Present On The Date Of Scrutiny And He Had Informed The Returning Officer The Correct Part Number Cannot, Therefore, Be Accepted.
The Inevitable Conclusion That Follows Is That The Election Petitioner Has Failed To Prove That Any Person Had Specifically Pointed Out To The Returning Officer Either At The Time Of Delivery Of The Nomination Paper By Vishwanath Or At The Time Of Scrutiny Of The Nomination Form Of Vishwanath That The Names Of The First, Second And Third Proposers Of Vishwanath Were Actually Contained In Part No.45 Of The Electoral Rolls At The Same Serial Numbers As Mentioned In The Nomination Paper And Not In Part No.23 Mentioned In The Nomination Paper. In Such Circumstances, In View Of The Discussion Made Above, The Defects In The Nomination Paper Of Vishwanath Would Be Of A Substantial Character.
Learned Senior Counsel For The Petitioner Also Contended That It Was For The Returned Candidate To Have Produced The Returning Officer In Evidence In Order To Establish That No Person Had At The Time Of Scrutiny Of The Nomination Paper Pointed Out To Him The Correct Part Number Of The First, Second And Third Proposers Of Vishwanath In The Electoral Rolls And Since The Returning Officer Was Not Produced In Evidence By The Returned Candidate, Adverse Inference Should Be Drawn. In Support Of This Contention He Has Placed Reliance Upon The Observations Made By The Supreme Court In Ram Bhual (supra) Wherein It Has Been Observed:-
"......... It May Also Be Noted That Even In Spite Of The Absence Of Proper Pleadings In The Written Statement On These Aspects, The Appellant Made No Attempt At Least To Examine The Returning Officer To Contradict The Assertion Of Sita Ram And The Election-petitioner That Sita Ram Had Pointed Out The Relevant Facts To The Returning Officer At The Time Of The Scrutiny Of The Nomination Of Sita Ram. We Have No Doubt In Our Minds That In The Circumstances Of The Case And In The Absence Of Proper Pleadings On The Side Of The Appellant, The Least He Should Have Done, Was To Examine The Returning Officer At Least In An Attempt To Contradict The Position Adopted By P.W.2 Sita Ram And The Election-petitioner. Thus, Even If We Overlook The Rule That ''no Amount Of Evidence Can Be Looked Into On A Plea Never Put Forward', We Have To Say That No Defence Was Put Up To The Case Set Forth By The Election-petitioner Even In The Oral Evidence Of The Appellant."

Learned Senior Counsel For The Petitioner Also Submitted That The Returned Candidate Rasheed Masood Did Not Appear In The Witness Box To State His Own Case And Did Not Present Himself For Cross-examination By The Other Side And, Therefore, A Presumption Should Be Drawn That The Case Set Up By Him Is Not Correct And In Support Of This Contention He Has Placed Reliance Upon The Decision Of The Supreme Court In Vidhyadhar Vs. Mankikrao & Anr., AIR 1999 SC 1441.
Learned Counsel For The Respondent, However, Submitted That It Was For The Election Petitioner To Plead His Case And Substantiate It By Adducing Evidence And No Adverse Inference Can Be Drawn Against The Respondent If The Returning Officer Was Not Examined By Him. He Also Submitted That The Returned Candidate Had Examined Vishwanath Whose Nomination Paper Had Been Rejected And Which Rejection Is In Issue In This Petition To Prove That None Had Pointed Out To The Returning Officer The Correct Part Number Of The First, Second And Third Proposers Of Vishwanath Either At The Time Of Delivery Of The Nomination Paper Or Its Scrutiny And It Was For The Election Petitioner To Have Examined The Returning Officer If He Wanted To Establish His Case And Contradict The Said Statement. In Support Of This Contention, Learned Counsel Has Placed Reliance Upon The Decision Of The Supreme Court In Jeet Mohinder Singh Vs. Harminder Singh Jassi, (1999) 9 SCC 386.
The Contention Advanced By The Learned Senior Counsel For The Petitioner That Adverse Inference Should Be Drawn Against The Respondent Since He Did Not Examine Himself Or The Returning Officer, Cannot Be Accepted. The Petition Had Been Filed On The Ground That The Nomination Paper Of The Independent Candidate Vishwanath Had Been Improperly Rejected. The Onus Was, Therefore, On The Election Petitioner To Raise The Necessary Pleadings And Adduce Evidence To Prove Such Averments. In An Election Petition If Nobody Adduces Evidence, It Is The Election Petitioner Who Fails. The Election Petitioner Cannot Raise A Plea About Non-examination Of Witnesses By The Returned Candidate And Derive Strength From The Weakness, If Any, Of The Returned Candidate.
In This Connection Reference May Be Made To The Decisions Of The Supreme Court In Harikrishna Lal Vs. Babu Lal Marandi, (2003) 8 SCC 613 And Jeet Mohinder Singh (supra).
In Harikrishna Lal (supra), The Supreme Court Observed:-

"It Is True That Mere Failure Of The Appellant In Raising Objection To The Validity Of The Nomination Paper Filed By The Respondent Before The Returning Officer Does Not Stop Or Exclude The Election Petitioner From Raising A Plea Before The High Court That The Nomination Paper Filed By The Respondent Was Liable To Be Rejected Or Could Not Have Been Accepted. The Enquiry Which The Returning Officer Has To Make Under Section 36 Of The Act Is Summary In Character, Which He May Make As He Thinks Necessary Either Suo Moto Or On An Objection Being Raised. Whether Such An Enquiry Was Held Or Not And If Held Whatever May Have Been The Result, The Propriety Of Rejection Or Acceptance Of A Nomination Paper Can Always Be Raised By Way Of Election Petition. (See N.T. Veluswami Thevar Vs. G. Raja Nainar And Others, AIR 1959 SC 422). But The Fact Remains That It Will Be For The Election Petitioner To Raise Necessary Pleadings And, If Traversed, To Substantiate The Same By Adducing The Necessary Evidence. This The Election Petitioner Has Failed To Do Before The High Court. The Inevitable Consequence Of The Election Petition Being Dismissed Has Rightly Followed.

Even Otherwise We Find No Substance In The Plea Raised By The Election Petitioner.

The Appellant Submitted That In The Election Petition It Was Specifically Alleged That The Respondent Was Not An Elector Belonging To The Constituency And That It Was Further Obligatory For The Respondent To Adduce Evidence To Show That He Was Qualified To Be A Candidate Without The Need Of Filing The Certified Copies Of Entries In The Electoral Roll Before The Returning Officer. Such A Submission Runs Counter To Basics Of Election Law. The Success Of A Winning Candidate Is Not To Be Lightly Interfered With. The Burden Of Proof Lies On The One Who Challenges The Election To Raise Necessary Pleadings And Adduce Evidence To Prove Such Averments As Would Enable The Result Of The Election Being Set Aside On Any Of The Grounds Available In The Law. In An Election Petition If Nobody Adduces Evidence It Is The Election-petitioner Who Fails. The High Court Rightly Framed The Issue Placing The Burden Of Proof On The Election-petitioner. As No Evidence Was Adduced By The Election-petitioner, The High Court Rightly Dismissed The Election Petition." (emphasis Supplied)

In Jeet Mohinder Singh (supra) The Supreme Court Also Made Similar Observations:-
"It Was Submitted By The Learned Senior Counsel For The Appellant That The Respondents Had Summoned Rajkumar Gupta, Tehsildar Alongwith With The Record But The Witness Was Given Up Without Being Examined. He Submitted That An Adverse Inference Should Be Drawn Against The Respondent For Non-examination Of Witness Summoned By Him. The Learned Senior Counsel For The Respondent Has Pointed Out That The Witness Was Given Up As Being Unnecessary. We Have Already Observed That The Onus Of Proving The Averments Made In The Election Petition Did Lay On The Appellant. It Was For The Appellant To Have Examined Rajkumar Gupta. If The Appellant Has Failed In Discharging His Own Onus, He Cannot Bank Upon The Plea Of Non-examination Of A Witness By The Respondent Which Witness Was Essentially A Witness To Be Examined By The Appellant In The Facts And Circumstances Of The Case. The Appellant Cannot Be Permitted To Derive Strength From The Weakness, If Any, Of The Respondent." (emphasis Supplied).

Reference Needs To Be Made To Yet Another Decision Of The Supreme Court In Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796. An Election Petition Had Been Filed In The Rajasthan High Court By An Elector To Challenge The Election Of The Returned Candidate On The Ground That The Nomination Papers Of Three Candidates, Umrao Ben, Hukmichand And Suraj Prakash Joshi Had Been Improperly Rejected. The High Court Held That The Nomination Paper Of Umrao Ben Had Been Validly Rejected As She Had Failed To Comply With The Provisions Of Section 33(5) Of The Act. However, In Respect Of Hukmichand And Suraj Prakash Joshi, The High Court Held That The Returning Officer Had Improperly Rejected Their Nomination Papers As Both The Candidates Had Attained The Qualifying Age Of 25 Years On The Date Of Nomination. The Returned Candidate Filed An Appeal Before The Supreme Court. The Supreme Court Upheld The Decision Of The High Court In So Far As The Rejection Of Nomination Paper Of Umrao Ben Was Concerned But In Respect Of The Rejection Of Nomination Papers Of Hukmichand And Suraj Prakash Joshi, The Supreme Court Set Aside The Decision Of The High Court. It Needs To Be Mentioned That The Returning Officer Had Rejected The Nomination Papers Of These Two Candidates On The Ground That In The Electoral Roll The Age Of Hukmichand Was Mentioned As 23 Years And That Of Suraj Prakash Joshi Was Mentioned As 22 Years And So These Two Candidates Did Not Possess The Requisite Qualification Of Age To Contest The Election As Was Required By Article 173 Of The Constitution. In The Nomination Papers, Hukmichand Had Given A Declaration That He Had Completed 26 Years Of Age While Suraj Prakash Joshi Gave A Declaration That He Had Completed 25 Years Of Age. Placing Reliance Upon The Oral And Documentary Evidence Produced By The Election Petitioner, The High Court Recorded A Finding That Hukmichand As Well As Suraj Prakash Joshi Had Both Attained The Age Of 25 Years On The Relevant Date And, Therefore, The Nomination Papers Had Been Improperly Rejected By The Returning Officer And This Had Materially Affected The Result Of The Election. For Coming To Such A Conclusion The High Court Had Drawn Adverse Inference Against The Returned Candidate On The Ground That Though Hukmichand And Suraj Prakash Joshi Had Been Cited As Witnesses By The Returned Candidate, But They Were Not Examined By Him. The High Court, Therefore, Proceeded On The Presumption That If These Witnesses Had Been Examined, They Would Have Supported The Respondents.
It Is In This Context That The Supreme Court Observed:-
"............... The Burden To Prove The Fact In Issue, Namely, The Dates Of Birth Of Hukmichand And Suraj Prakash Joshi Was On The Respondent Who Was The Election Petitioner. The Respondent Could Not Succeed If No Evidence Was Produced By The Appellant On The Question Of Age Of The Aforesaid Candidates And His Election Could Not Be Set Aside Merely On The Ground That The Respondent Had Made Out A Prima Facie Case That The Entry Contained In The Electoral Roll Regarding The Age Of Two Candidates Was Incorrect. It Appears That In His List Of Witnesses The Appellant Had Included The Name Of Suraj Prakash Joshi And His Father Maghdutt Joshi As Witnesses But They Were Not Examined By Him. Similarly, Hukmi Chand Was Also Cited By The Appellant But He Was Also Not Examined Instead Navratan Mal Bhandari, Brother Of Hukmi Chand Was Examined As PW 4 And Ghanshyam Chhangani Was Examined As PW 6 By The Appellant, Who Supported The Appellant's Case That Hukmi Chand And Suraj Prakash Joshi Had Not Attained The Age Of 25 Years On The Date Of Nomination. Since The Appellant Had Not Examined Hukmi Chand, Suraj Prakash Joshi Or Their Parents, The High Court Drew Adverse Inference Against Him. The High Court Committed Serious Error In Doing So. There Was No Question Of Drawing Adverse Inference Against The Appellant, As The Burden To Prove The Age Of Hukmi Chand And Suraj Prakash Joshi Was On The Election Petitioner And Since He Had Failed To Prove The Same By Cogent Evidence No Adverse Inference Could Be Drawn Against The Appellant. In Fact, Burden Was On The Respondent To Prove His Case By Producing Hukmichand And Suraj Prakash Joshi, Or Their Parents To Prove And Corroborate The Dates Of Birth As Mentioned In The School Register And The Certificate. If He Failed To Do That He Could Not Succeed Merely Because Appellant Had Not Produced Them. In The Circumstances No Adverse Inference Was At All Possible To Be Drawn Against The Appellant For Not Examining Hukmi Chand And Suraj Prakash Joshi Or Their Parents." (emphasis Supplied)

In View Of The Proposition Of Law Laid Down In The Aforesaid Decisions Of The Supreme Court, It Is Not Possible To Accept The Contention Of Sri Ravi Kiran Jain, Learned Senior Counsel For The Petitioner That Adverse Inference Should Be Drawn Against The Returned Candidate Because He Did Not Examine Himself Or The Returning Officer.
The Decision In Vidhyadhar (supra) Does Not Help The Petitioner Because Of The Decisions Of The Supreme Court In Jeet Mohinder Singh (supra), Harikrishna Lal (supra) And Birad Mal Singhvi (supra). The Decision In Ram Bhual (supra) Also Does Not Help The Petitioner As In This Case The Election Petitioner Had Led Evidence To Establish That Sita Ram Whose Nomination Form Had Been Rejected Had Pointed Out The Relevant Facts To The Returning Officer. It Was, Therefore, Observed That The Returned Candidate Should Have Examined The Returning Officer If He Wanted To Contradict This Statement But In The Present Election Petition, As Noticed Above, The Election Petitioner Could Not Prove That Any Person Had Pointed Out The Relevant Facts To The Returning Officer.
Thus, None Of The Contentions Advanced By The Learned Senior Counsel For The Petitioner Have Any Force. The Election Petition Is, Accordingly, Dismissed.

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