KARTIKRAM CHAUHAN Vs. PADMA
LAWS(CHH)-2010-8-6
HIGH COURT OF CHHATTISGARH
Decided on August 31,2010

KARTIKRAM CHAUHAN Appellant
VERSUS
PADMA Respondents




JUDGEMENT

- (1.)BY this election petition under Section 80/80-A read with Section 100 of the Representation of the People Act, 1951 (for short 'the Act'), the petitioner has challenged the election of returned candidate i.e. respondent No. 1 who has been elected as member of the Chhattisgarh Legislative Assembly from Sarangarh Constituency reserved for Scheduled Caste community on the ground of improper acceptance of nomination form of returned candidate respondent No. 1 by the Returning Officer which materially affected the election.
(2.)AS per the election petition, respondent No. 1 was required to submit correct nomination form for election. Respondent No. 1 has submitted nomination form as required under Section 33(1) of the Act and the forms prescribed under Rule 4 of the Conduct of Elections Rules, 1961 (for short 'the Rules') in Form 2-A to Form 2-E. Respondent No. 1 has submitted his nomination form as required under Rule 4 of the Rules in Form 2-A but the form submitted by respondent No. 1 was not correct in all respects in Part III of the form which was required for respondent No. 1 to give consent for nomination. The form which respondent No. 1 has submitted contains the words to in place of to but without correcting the form, respondent No. 1 has submitted defective form which was not proper. The petitioner has made objection before the Returning Officer, but the Returning Officer has illegally and improperly accepted the defective nomination form presented by respondent No. 1 which has substantially affected the election.
By filing application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (for short 'the Code') as I.A. No. 2, respondent No. 1 has objected the maintainability of the election petition on the ground that acceptance of nomination paper having mere clerical defect has not materially/substantially affected the result of election and therefore, the election petition for challenging the election is not maintainable.

By filing reply to I.A. No. 2, the petitioner has specifically objected that by accepting improper and defective nomination paper, result of election has been substantially and material affected.

I have heard learned counsel for the petitioner and learned counsel for respondent No. 1, perused the election petition and the alleged copy of nomination form of respondent No. 1 filed on behalf of the petitioner.

In support of I.A. No. 2, learned counsel for respondent No. 1 vehemently argued that respondent No. 1 has filed nomination form in printed format containing clerical mistake of one word as. The defect is not of substantial nature and does not materially or substantially affects the election. The petitioner has failed to show another meaning of the word contrary to the meaning of word Respondent No. 1 has filed duly filled nomination form containing detailed information as required under Section 33(1) of the Act. Only on account of misprint of one word it is not sufficient to declare the election of returned candidate as illegal and the election petition is not maintainable.

(3.)LEARNED counsel for the petitioner opposed LA. No. 2 filed for dismissal of the election petition under Order 7, Rule 11 of the Code and argued that respondent No. 1, returned candidate of the Chhattisgarh Legislative Assembly Elections, was required to submit correct nomination form in all respects, but respondent No. 1 has not submitted correct nomination form. Defect in the nomination form' is of substantial nature which has materially affected the election of the petitioner. The petitioner has objected the same at the time of acceptance of nomination form, but the Returning Officer has illegally and improperly accepted the nomination form of respondent No. 1.
Copy of the nomination form submitted on behalf of respondent No. 1 at the time of election as required under Section 33(1) of the Act and Rule 4 of the Rules in Form 2-A to Form 2-E reveals that in Part III, the word has been printed, the correct word would be and not . Except the word respondent No. 1 has submitted the duly filled nomination form containing all requirements and after verifying the same, the Returning Officer has accepted the nomination form. In Part IV & Part V the word has been printed.

As per sub-section (4) of Section 33 of the Act, the returning officer is required to satisfy himself relating to names and electoral roll numbers of the candidates in the nomination form. Proviso to sub-section (4) of Section 33 of the Act provides 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. Proviso to sub-section (4) of Section 33 of the Act further provides that the returning officer shall permit the candidate for correction of such mistake in case of necessity and direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. Provisions of sub-section (4) of Section 33 of the Act reads as follows :-

"(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."



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