TATIA, J. - (1.) THE petitioner, by this election petition under Section 81 read with Sections 100 and 101 of the Representation of People Act, 1951 (hereinafter referred to as "the Act of 1951"), has challenged the election of respondent No. 1 who was declared elected by the Returning Officer as a Member of the Legislative Assembly from Sardarpura Constituency of City of Jodhpur, Rajasthan, on 4. 12. 2003.
(2.) BRIEF facts of the case as stated in the petitioner are that, the petitioner on an assurance given by the President of Indian National Lok Dal submitted his nomination paper before the Returning Officer, certified copy of which is placed on record as Annexure-1. The nomination of the petitioner was rejected by the Returning Officer vide order dated 15. 11. 2003 on the two grounds; firstly, out of ten proposers, names of six proposers are not available in the part number of the voter list and at the roll numbers which were disclosed by the proposers and the petitioner in petitioner's nomination paper (Annexure-1 ). and second, on the ground that the petitioner could not submit authorisation from the political party concerned, in the forms A and B as required under sub-clause (b) and (d) of Rule 13 of the Election Symbols (Reservation and Allotment) Order, 1968. According to the petitioner, the above mentioned objections were raised by the Returning Officer suo motu. As per Sub-section (5) of Section 36 of the Act of 1951, the Returning Officer was under statutory obligation, to grant time and opportunity of hearing to the petitioner to meet with the objections raised by the Returning Officer. The petitioner further submitted that the petitioner made oral request but time was not granted and the petitioner's nomination was wrongly rejected by the Returning Officer. The petitioner placed on record certified copies of the entries evidencing the availability of the names of all the above petitioner's six proposers in the voter list for the Sardarpura Constituency itself whose names were not found by the Returning Officer at the time of scrutiny of the petitioner's nomination and on the basis of which the petitioner's candidature was rejected by the Returning Officer. In view of the above facts, according to the petitioner, the petitioner's candidature was wrongly rejected by the Returning Officer and consequentially, election of the respondent is liable to be set aside. Learned counsel for the respondent in his arguments also submitted the petitioner has challenged the order of rejection of his nomination paper by the Returning Officer on the ground that the petitioner was not given time to submit his political party's authorisation letter. So far as challenge to action of the Returning Officer in taking decision about petitioner's nomination as political party's candidate is concerned, a lok at petitioner's pleadings are relevant and necessary for deciding respondent's application seeking rejection of the election petition on the various grounds along with on ground of various pleadings, therefore, they are quoted in this judgment at relevant place. The petitioner also submitted in the election petition that, aggrieved against the rejection of his nomination paper by the Returning officer, he submitted a representation to the Chief Election Commissioner, Delhi and he placed on record the copy of the said representation which is marked as Annexure-10. Respondent No. 1, returned candidate, submitted an application under Section 81 read with Section 83 and 86 of the Act of 1951 and under Order 7 Rule 11, C. P. C. and submitted that the election petition filed by the petitioner deserves to be rejected as no cause of action has been disclosed in the petition. Even from the perusal of Annexure-4 to Annexure-9, it is clear that part number and serial number of the electoral roll relating to the petitioner's proposers, mentioned in the certified copy of the electoral roll for the Sardarpura Constituency are different from the one mentioned in the nomination paper and therefore, the nomination submitted by the petitioner was rightly rejected by the Returning Officer. Not only this but even in the nomination paper, there is one proposer's name is shown as Kalesh whereas the petitioner admitted in rejoinder that Kalesh is not his proposer not is name of alleged proposer Kalesh is in the voter list of any constituency. Annexure-6 which is relating to Kamlesh and not relating to that Kalesh who is shown in the certified copy of the nomination paper of the petitioner. It is strange that the petitioner in rejoinder virtually submitted that facts mentioned in the petitioner's nomination paper and which can be read by naked eyes may be ignored and instead of the certified copy of the petitioner's own nomination paper, the typed copy of the nomination paper, the typed copy of the nomination paper got prepared and supplied by the petitioner in the election petition be believed as true and correct copy of the original nomination paper. The election petition is, further liable to be dismissed as the petitioner deliberately with oblique motive and to mislead this court as well as the respondent No. 1, submitted incorrect typed copy of the material document, his own nomination paper Annexure 1. Apart from above, it is also submitted that the allegations made in the election petition are absolutely vague and kept vague purposefully. It is also submitted that the petitioner did not verify the annexures appended to the election petition except Annexures. 2-3, and 10, as required by Section 81 read with Section 83 (2) of the Act of 1951 and, in absence of verification of the annexures, the election petition filed by the petitioner is not maintainable. It is also submitted that the verification of the election petition is not in accordance with the provisions contained in Section 83 (1) (c) of the Act of 1951 and is also not in conformity with Order 1 Rule 15 C. P. C. and lastly, respondent No. 1 submitted that the election petition deserves to be dismissed as the petition suffers from the defect of misjoinder of parties as only necessary respondent was required to be impleaded as party, whereas the petitioner has impleaded other candidates as well as the Returning officer as party-respondents who are not the necessary party in the election petition.
(3.) THE reply has been filed by the petitioner to the application of respondent No. 1. THE petitioner submitted that the petitioner pleaded all the material facts which are necessary to prove a case to succeed in the petition and, therefore, there is a complete discloser of cause of action. THE petitioner in reply to the application, again reiterated that duty of the Returning Officer is quash-judicial in nature as held by the Hon'ble Apex court and the Returning Officer was under obligation to hold a summary enquiry to determine the validity of the nomination paper filed by the petitioner after giving opportunity of hearing and time under Section 36 (5) of Act of 1951. THE petitioner submitted that entry at Sec. No. 3 in the nomination paper of the petitioner is of Kamlesh and not of Kalesh or Kailash. THE petitioner for this, relied upon the typed copy of the nomination paper. THE petitioner again reiterated that in view of Annexure-4 to 9, it is clear that six proposers' names were very much available in the electoral roll of the Sardarpura Constituency. THE petitioner, to meet the objection about the verification, submitted that Annexure 2, 3 and 10 have been verified and want of verification or defect in verification of the documents annexed to the petitioner, cannot be a ground for dismissal or the petition since the same is matter of procedure and is curable defect only, as held by the Supreme Court and also by the Rajasthan High Court and further submitted that the affidavit filed by the petitioner is verified in accordance with the law and, if there is defect, it is also curable. THE petitioner submitted that he has impleaded all the necessary parties in the election petition and the rights of contesting candidates are involved and the Returning Officer has rejected the nomination paper, therefore, the petitioner impleaded all of them in the election petition and even if it is found that they are unnecessary parties, the election petition cannot be dismissed in view of the decision of the Hon'ble Apex Court. The learned counsel for respondent No. 1 advancing argument on the application under Section 81, 83 and 86 of the Act of 1951 and under Order 7 Rule 11, C. P. C. submitted that the petitioner was not a serious contender in the election and he himself deliberately and knowingly submitted nomination paper with wrong facts with oblique motive and with intention that his nomination paper may be rejected by the Returning officer so that he may use order obtained by his own engineering and by misleading Returning officer to challenge the election because respondent No. 1 was formidable candidate for any contender for the Sardarpura Assembly seat and at the relevant time, was the Chief Minister of the Rajasthan, whereas the petitioner was not a serious candidate. The learned counsel for the respondent No. 1 frankly admitted that there is limited scope under Order 7 Rule 11, C. P. C. but vehemently submitted that the present petition falls within the four corners of the scope for rejection of the petitioner's election petition under Order 7 Rule 11 C. P. C. as the petition does not discloses the cause of action and is a frivolous petition and has been filed to abuse the process of court and harass respondent No. 1. Learned counsel for respondent No. 1 relied upon the judgment of Supreme Court, Azhar Hussain vs. Rajiv Ghandhi, (1 ). Learned counsel for respondent No. 1 further submitted that complete time schedule has been given in the Act itself with, days within which every step is to be taken and completed and in some provision, even hours have been give in the Act itself for start of particular task and hour before which the task is required to be completed by the candidate. In such a position the compliance of all the provisions of the Act of 1951 for contesting election as well as for maintaining the election petition are required to be strictly construed so that election may not be disturbed on the behest of those elements who do not want that the mandate of public should be respected. Learned counsel for the respondent, submitted that the petitioner did not submit political party's authorisation letter till statutory time limit, is an admitted fact and still without there being any factual foundation in the election petition as well as without pleading ground for that challenge assailing the order of the Returning Officer which is clear from the arguments of the learned counsel for the petitioner. The grounds taken by the petitioner in the election petition are not grounds in eye of law, therefore, the petition is liable to be dismissed forthwith as the petitioner could not make out for holding trial, and rather all reasons are available for rejection of the petitioner's elections petition. In addition to above learned counsel for the respondent no. 1 vehemently submitted that the case of the petitioner before filing the election petition was that it is not at all necessary that proposers' names should be in the current voter list. The petitioner placed on record a representation submitted by him to the Chief Election Commissioner which is dated 19. 11. 2003. Though there is no pleading and proof, how this representation was sent and served upon the Chief Election commissioner by the petitioner but since it is a document submitted by the petitioner and, at this stage, respondent No. 1 cannot question the document, therefore, respondent No. 1 at this stage, submits that the petitioner himself till 19. 11. 2003, 4 days after the rejection of his nomination paper, was under impression that the names of proposers were in the voter list of the year 1995 and he was only under impression that names of all these six proposers must have been in the voter list of year 2003 and, therefore, he is his representation Annexure-10 emphatically by supplying underlining the plea, submitted that there is no instructions under Sec. 4 that the proposers names must have been in the voter list of the year 2003. The petitioner neither disclosed in Annexure-10 that his proposer's names were available in the voter list of Sardarpura Constituency in the part, either disclosed in the nomination paper or in the part disclosed in Annexures 4 to 10. The stand taken by the petitioner as on 19. 11. 2003 appears to have been given up in the election petition. Rather the petitioner in rejoinder, admitted impliedly that he deliberately and knowingly supplied wrong particulars in his nomination paper submitted to the Returning Officer. It will be worthwhile to mention here that in his representation dated 19. 11. 2003 (Annexure-10), the petitioner stated that all the six proposers of the petitioners stated that all the six proposers of the petitioner are having their voter identity cards with them but the petitioner did not produce copies of these voter identity cards, therefore, it appears that the petitioner wanted to mislead this Court as well to respondent No. 1 by taking different ground at different stage and without giving any explanation for taking plea in the representation (Annexure-10) and without furnishing why he furnished wrong particulars, so that the petitioner may after getting reply to the election petition, build up his case and may take or withdraw the ground which he has taken in his representation (Annexure-10) and may develop entirely a different ground than pleaded in the election petition. It is also submitted that in spite of respondent's objection about maintainability of the election petition on ground of defect in verification, the petitioner instead of seeking correction with the leave of the court insisted to argue on the objection then it is clear that petitioner does not want to remove the defect if the defects are curable. If defects are curable and party does not wants to remove the defect in verification, the court has no option but to reject the petition itself at this stage only. Learned counsel for respondent No. 1 relied upon the judgment of Hon'ble Apex Court delivered in the case of R. P. Moidutty vs. P. T. Kunju Mohammad and another ;