ANAND - (1.) THIS appeal, under Section 116-A of the Representation of the People Act, 1951 (hereinafter the 'Act'), is directed against the judgment and order of the High Court of Punjab and Haryana dated 5/11/1997. By the impugned judgment a learned single Judge of the High Court allowed Election Petition No. 3 of 1997 filed by the respondent herein and set aside the election of the appellant herein, the returned candidate, from 57, North Ludhiana Assembly Constituency of the Punjab Vidhan Sabha.
(2.) THE Election Commission of India notified the holding of elections to the Punjab Vidhan Sabha. THE election programme for 57, North Ludhiana Assembly Constituency was fixed as under : JUDGEMENT_489_2_1999Html1.htm THE Election Commission of India, however, rescheduled the programme, as 23/01/1997 was declared as a National Holiday. THE re-scheduled programme was as follows :- JUDGEMENT_489_2_1999Html2.htm The appellant contested the election as a candidate of the Indian National Congress (Congress-I). Respondent, Sunil Kumar filed his nomination paper for contesting the election as a candidate of Bhartiya Janata Party (hereinafter 'BJP'). Vir Abhimanyu also filed his nomination paper as a candidate set up by BJP while Harish Kumar filed his nomination paper as a 'substitute' candidate of BJP. According to the case set up by respondent in his Election Petition he had submitted his nomination paper on 20/01/1997 at 12.10 p.m. as a candidate set up by BJP and along with the nomination paper he had also submitted Forms A and B as envisaged by paras 13(c) and 13(d) of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter 'Election Symbols Order'). Forms A and B had been signed by Shri L. K. Advani, President of the BJP and Shri Balramji Dass Tandon, President of Punjab State BJP, who had been authorised by BJP to intimate the names of the candidates set up by the party to the returning officer. Shri Vir Abhimanyu also filed his nomination paper as a BJP candidate on 20/01/1997 at 12.50 p.m. supported by Forms A and B also duly signed by Shri L. K. Advani and Shri Balramji Dass Tandon, who had been authorised by BJP to intimate the names of the candidates set up by BJP to the Returning Officer. Shri Harish Kumar had similarly filed his nomination paper on the same day as a 'substitute' candidate of the BJP. On 21st of January, 1997 when the nomination papers came up for scrutiny before the Returning Officer, a suo motu objection was raised by the Returning Officer to the effect that BJP had set up more than one candidate in the election and, therefore, none could be treated as a candidate set up by a recognised political party - BJP. He, therefore, rejected the nomination papers of respondent Sunil Kumar as well as Vir Abhimanyu and Harish Kumar, in spite of the fact that respondent Shri Sunil Kumar had made an application, at the time of the scrutiny, stating that he was the official BJP candidate and requesting that his nomination paper be accepted and the symbol reserved for BJP be allotted to him. He requested for 24 hours time to produce an official confirmation of his candidature. Aggrieved by the rejection of his nomination paper, the respondent filed a Civil Writ Petition in the High Court challenging the order of the Returning Officer dated 21st of January, 1997. The Writ Petition was, however, dismissed on the ground that the remedy available to the writ petitioner was to file an Election Petition, if so advised.
(3.) ON the last date of withdrawal of the candidature, the appellant and 9 other candidates remained in the fray. After the polling, the counting of ballots took place on 9/02/1997 and the appellant was declared elected having secured 33614 votes. After the declaration of the result of the election, the respondent filed an Election Petition (No. 3 of 1997) challenging the election of the returned candidate on the ground that his nomination paper as well as those of S/Shri Vir Abhimanyu and Harish Kumar had been wrongly and illegally rejected. It was alleged by the respondent that the Returning Officer had wrongly rejected his application, filed under Section 36(5) of the Act, seeking an opportunity to meet the objection raised by the Returning Officer. The Election Petitioner was contested and the appellant resisted the same asserting that the nomination papers of the respondent as well as of S/Shri Vir Abhimanyu and Harish Kumar had been rightly rejected for non-compliance with the mandatory provisions of Section 33(1) of the Act as amended by Act No. 21 of 1996. It was maintained that since no intimation had been given to the Returning Officer till 3.00 p.m. on the date of the scrutiny about the official candidate by BJP, the Returning Officer was justified in rejecting their nomination papers. From the pleadings of the parties, following issues were raised : "1. Whether the order of rejection of nomination papers filed by the petitioner Sunil Kumar was illegal and improper, if so, its effect? OPP 2. Whether the order of rejection of nomination paper filed by Shri Vir Abhimanyu was illegal and improper, if so, its effect? OPP 3. Whether the order of rejection of nomination paper filed by Shri Harish Kumar was illegal and improper, if so, its effect? OPP 4. Relief." At the request of the parties, the record including the nomination papers and the material relating to the rejection of the nomination papers was summoned from the District Election Commissioner and on receipt of the same, learned counsel for the parties stated before the learned single Judge that no other evidence was required to be led. They addressed their arguments on the issues on the basis of the summoned record.;