- (1.) SHRI Pukhraj Kalani, respondent No. 1. was elected from the Sojat Constituency in the general elections of 1972 to the Rajasthan State Assembly. His election had been challenged by the petitioner on certain grounds including the charge of a corrupt practice. But by his application dated 24-7-1972 the petitioner abandoned his attack on the ground of corrupt practice and confined his petition to the improper rejection of the nomination paper of the respondent Mr. Narain respondent No. 2, The circumstances attending the submission. rejection and acceptance of Mr. Narain's nomination paper briefly stated are these: He presented his nomination paper dated 8-2-1972 (Document No. 1 ). On 9-2-1972 the Returning Officer (respondent No. 4) scrutinised it and made the endorsements which may be translated verbatim in the interest of exactitude. "i have scrutinised this nomination paper under Section 36 of the representation of the People Act and I make the following decision. The candidate Shri Narain is absent His proposer Shri Mohanlal is absent. The Deputy Chief Election Officer, Rajasthan, Jaipur by his letter no. F. 5 (l) (l) First Election /70/197 dated December 11. 1971, which was received on 14-1-1972 by endorsement at No. 17 and Nos. 26 to 42 dated 11-1-1972, informs that the Election Commission had disqualified Shri narain under Section 10-A of the Representation of the People Act because he had failed to lodge the account of Election Expenses, therefore, he is not qualified to contest the election and his nomination is not accepted. Sd. Ramesh Chand returning Officer, Sojat copy Received sd. Narain. After I had written the above, candidate Shri Narain appeared with a copy of the above order at 12 noon and said that he was absent at the time of the scrutiny of his nomination paper and on obtaining a copy of his nomination paper he learnt that it had been rejected. He presented an application in writing say-ins that the Election Commission of India had disqualified him only for a period of 3 years which period had expired and so had his disqualification. The candidate requested for reconsideration of his nomination paper and the list sent by the Deputy chief Election Commissioner and the same may be shown to him. Till this time the scrutiny of nomination papers is in progress. Therefore, on the written application of the candidate the letter No. 5 (11) (1) First election 70:197 dated llth December, 1071 which was received in this office on 14-1-1972 was re-read. In the list attached with the said letter at serial No. 14 it is mentioned that (Shri) Narain was disqualified for his failure to lodge accounts in accordance with law and in time but his disqualification according to column 6 automatically ended on 14-1-71. Column 6 was not noticed by me before the arrival of the candidate and he was declared disqualified by me only on reading the letter. Because of my not noticing column No. 6 of the list attached with the letter of the deputy Chief Election Commissioner and due to haste and oversight the nomination paper of the candidate was rejected which was due to 'purely over sight'. As the disqualification of the candidate had already come to an end as per the list attached with the letter of the Deputy Chief election Commissioner in the face of this fact and for the ends of justice it is necessary to correct the error and the nomination paper of candidate (Shri) Narain is accepted and the order of rejection above-mentioned is vacated. Sd. Ramesh Chand 9-2-1972"
(2.) THE petitioner contends that the Returning Officer had no jurisdiction to review his earlier order rejecting the nomination paper of Shri Narain and because on the returning Officer's own showing Shri Narain's nomination paper was improperly rejected the election of Shri Pukhraj Kalani should be set aside under Section 100 (1) (c) of the Representation of the People Act. Respondent Pukhraj Kalani contests the position. He says that because the nomination paper of Shri Narain was eventually accepted the case is not attracted by Section 100 (1) (c) of the representation of the People Act. If the nomination paper was improperly accepted then unless it is averred and it has not been so averred that it materially affected the results of the election Section 100 (1) (d) (i) is not attracted and the petition deserves to be dismissed on that ground. The time for scrutiny was between 11 a. m. and 3 p. m. and before the final list under Section 36 (8) was published the nomination paper of Shri Narain was duly accepted. The case is not one of review but of correction of a mistake. One important fact, which is not in dispute, might also be mentioned i. e, Shri Narain eventually withdrew from the election contest.
(3.) THE crux of the controversy is that after having imporperly rejected the nomination paper of Shri Narain had the Returning Officer any jurisdiction to correct the error. If he had none, then the subsequent order does not exist in law being a nullity and the rejection being improper it will have to be examined whether the case is covered by Section 100 (1) (c) of the Representation of the people Act thereby making the elec-tion of Shri Pukhraj Kalani void.;