S.K.LODHA, J. - (1.)THIS is a petition under 80 and 81 of the Representation of the People Act, 1951 (No. XLIII of 1951)(for short 'the Act' herein) filed by Shri Shrilal Janva, challenging the election of respondent Shri Udai Ram Dhakad to Rajasthan Legislative Assembly from Badi Sadri Constituency.
(2.)THE result of the election was declared on June 1, 1980 and the respondent was declared elected as having secured the highest number of votes Petitioner Shrilal Janva has questioned the election of the respondent on the ground that the Returning Officer of Badi Sadri Constituency wrongly rejected his (petitioner's) nomination paper. The petitioner has prayed that the election of the respondent may be declared void.
A Notification under Section 15 of the Act calling the electors of Badi Sadri Constituency to elect a representative, was issued. The Election Commissioner of India, by Notification dated April 27, 1980. issued a programme of election. According to that, the nomination papers were to be filed from April 27, 1980 to May 2. 1980 and the poll was to take place on May 28, 1980. In pursuance of the Notification, it is alleged, that the petitioner and 19 others, filed their nomination papers. The case of the petitioner is that he appeared before the Returning Officer (Sub -Divisional Officer, Nimbehara) at 2.45 p.m. on May 2, 1980 and delivered his nomination paper duly filed and completed in the prescribed form and signed by him as Candidate and by Shri Rajendra Kumar Porwal, elector of the constituency as proposor in person at the specified place with the amount of Rs. 250/ - in cash as deposit. The Returning Officer did not accept the nomination paper and the amount and asked him to submit an application and obtain order from him for depositing the amount of Rs. 250/ - with the Nazir. He submitted an application Ex. 2 on which the Returning Officer passed an order and below his signatures put the date 2nd May, 1980. In the application (Ex. 2) below the signatures of the Returning Officer, time mentioned is 2.56 p.m., whereas, the case of the petitioner is that he did not note any time under his signatures at that time. The, petitioner deposited amount at 2.56 p.m. with the Nazir, who was sitting in a room adjacent to the room, in which the Returning Officer was sitting and obtained the Receipt No. 82/182938. Thereafter, the petitioner presented himself before the Returning Officer at 2.57 p.m. to accept his nomination paper, which he had already filed before him. The nomination paper was not accepted by the Returning Officer. The Returning Officer instead, asked the petitioner to go out of his room as he was going to administer oath to the candidates. The petitioner went out of his room in the hope that the Returning Officer would accept his nomination paper and call him for taking oath. When the Returning Officer did not call him and administered oath to the other candidates, the petitioner again approached the Returning Officer to accept his nomination paper and administer oath to him. As the request of the petitioner was not heeded to, the petitioner submitted an application Ex. 1, in which it was stated that he had filed his nomination paper at 2.45 p.m. and that he had deposited the amount at 2.56 p.m. and so his nomination paper should be considered to have been filed within time and it should be accepted. Since the nomination paper of the petitioner was not accepted by the Returning Officer, there was no question for him to attend the scrutiny, scheduled to be held before the Returning Officer on May 3, 1980. The Returning Officer rejected the petitioner s nomination paper on May 3, 1980. As the respondent was declared elected, the petitioner filed election petition on July 16, 1980 on the ground that the rejection of the nomination paper of the petitioner by the Returning Officer was illegal.

(3.)THE respondent filed the written statement contesting the election petition on September 20, 1980. It has been stated in the reply that the petitioner neither appeared before the Returning Officer nor delivered the nomination paper complete in all respects at 2.45 p.m. on May 2, 1980. It was denied that the amount of Rs. 250/ - in cash was tendered to the Returning Officer by the petitioner. On the basis of the endorsement made on the nomination paper (Ex. 3), it was stated that the petitioner appeared before the Returning Officer at 3.03 p.m. on May, 2, 1980 and that he did not deliver the nomination paper to the Returning Officer and simply left it on the table of the Returning Officer without delivering the same to him and obtaining a proper receipt as prescribed. The application Ex. 1 is said to have been presented by the petitioner before the Returning Officer at 4.30 p.m. on May 2, 1980 and the Returning Officer passed necessary orders that application recording the true facts. In substance, the election petition is contested on the ground that the nomination paper was rightly rejected by the Returning Officer as the petitioner had failed comply with the provisions of Sections 33 and 34 pf the Act. An objection was also raised that in the absence of the Returning Officer as a party, the election petition cannot be tried as non -joinder of the Returning Officer is fatal and the petition should be rejected.