- (1.) THIS election petition has been filed under Section 81 of the Representation of the People Act, 1951, (hereinafter referred to as the Act) by the candidate set up by Congress (Organisation) Party during the last General Elections held in February, 1974 and the only ground taken is that the election of the Bhartiya Kranti Dal candidate, respondent Vikaram Singh to the Uttar Pradesh Legislative Assembly from 383 Agota Assembly Constituency in district Bulandshahr be set aside because the nomination paper of the petitioner was. improperly rejected within the meaning of Section 100 (1) (c) of the Act.
(2.) THE relevant facts are that the petitioner was one of the eight candidates for 383 Agota Assembly Constituency. The notification for holding the General Elections was issued on the 17th of January, 1974. The dates fixed for filing of nomination papers were from 19th of January to 24th of January, 1974, and the date for scrutiny of nomination papers was the 25th of January, 1974, 26th of February, 1974 was the polling date and votes polled were counted on 28-2-1974 fixed for the purpose. The result was also declared on the same day. The petitioner filed two nomination papers on the proper form on 23-1-1974 (vide Ex. P-14 and certified copy Ex. R-1). Both these nomination papers were filed by the petitioner as Madood Ali, son of Tariqat Ali, post office Guthsoli, village Lohgara, district Bulandshahr. In both it was also mentioned that his name was printed at Serial No.76 in part 140 in the electoral roll of the Constituency. Subsequently, on 24-1-1974 he filed the third nomination paper (Ex. P-15) and in this his name was given as Masood alias Madood Ali and the rest of the details were the same. It is not in dispute that the necessary security money was duly deposited in the name of Madood Ali. On the 25th of January, 1974 i.e., on the date of scrutiny the objection application (Ex. P-17) was filed by one of the candidates, namely, Jagbir Singh Sirohi, set up by Congress (R). A perusal of the objection application filed before the Returning Officer will show that the objection raised was that the actual name of the petitioner is "Madood" and not "Masood", and that the petitioner filed the third nomination paper in the name of Masood alias Madood Ali because his actual name viz., Madood has not been printed in the electoral roll and as his actual name is not to be found in the electoral roll, he is not duly qualified to stand as a candidate. It was also mentioned in that objection-application that Madood actually is the elder brother of the petitioner. Against this objection-application the petitioner filed his replies which is Ex. P-19 on the record and it was supported by a counter-affidavit (Ex. P-6). In his reply it has been alleged that the name of the petitioner is to be found at Serial No. 76 of the electoral roll and that the sum of Rs. 250.00 deposited on 23-1-1974 was also deposited by him. It was further averred that the third nomination paper filed in the name of Masood alias Madood Ali was also filed nominating him as a candidate. The petitioner took the plea that he has two names - one Masood and the other Madood. The order by which the Returning Officer rejected the petitioner's nomination papers is Ex. P-7 and a perusal of the same will show that even before him during arguments it was contended that the name of the petitioner is Madood and that due to a printing error his name was printed as Masood at Serial No. 76. Besides these facts, it was also given out that from a comparison of the electoral roll of 1971 which was also filed before the Returning Officer before scrutiny was done, with the electoral roll of 1973, it will appear that all the names of the family members of the petitioner were correctly printed in the electoral roll of 1971 from Serial No. 72. to Serial No. 81, that in the electoral roll of 1973 at the identical serial numbers the same persons were shown and but for some mistakes in printing the names, all the other details are the same and that at Serial No. 76 instead of Madood, Masood was wrongly printed. It was also pleaded in the alternative that in any case, as Madood also is known as Masood, at least his third nomination paper should be accepted. The Returning Officer, as is apparent from Ex. P-7, did not consider whether the proviso to Section 33 (4) of the Act was applicable to the facts of this case. The only question he considered was whether the name of the petitioner actually finds place in the electoral roll of 1973. He came to the conclusion that at Serial No. 76 instead of the name of the petitioner, the name of his brother Masood was printed and his name not being in the electoral roll of 1973 he was not duly qualified to be a candidate and on that ground rejected his nomination papers.
(3.) KEEPING in view the pleadings of the parties the following issues were framed :- Issues :- 1 (a) Whether the petitioner is enrolled as a voter in the electoral roll of the constituency at Serial No. 76, part 140 and his name by misnomer and/or owing to printing mistake has been written as "Masood" and not "Madood" ? 1 (b) Whether the petitioner is sometimes called as "Masood" and not "Madood" ? 2. Whether the nomination paper of the petitioner was improperly rejected ? If so, what is its effect ? 3. Whether the security money has not been deposited in accordance with the Rules of Court ? If so, what is its effect ? 4. Whether the election petition is liable to be rejected for non-compliance with the provisions of Section 81 of the Representation of the People Act. 1951 ? 5. Whether in the array of respondents the name of respondent is wrongly written as Vikaram Singh instead of "Vikram Singh" ? If so, its effect ? 6. To what relief, if any, is the petitioner entitled ? ;