BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE appeal is directed against the order passed by the learned Single Judge on application for interim relief. However, at the request of learned counsel for both the parties, the petition itself has been heard finally. The election for Sarpanch for Gram Panchayat Bilaniyasar of Tehsil Nokha in Bikaner Division was held on 31st January, 2005. In the said election appellant Gopa Ram was declared elected as Sarpanch and the Respondent Deepa Ram was one of the candidate who lost election behind the elected Sarpanch Gopa Ram. Election of said Gopa Ram was challenged by way of election petition by Deepa Ram inter alia on the ground that nomination papers of two other candidates viz. Kumba Ram S/o Mangal Nath R/o Dudawas Tehsil Nokha and Sumera Ram S/o Ganga Ram R/o Dudawas Tehsil Nokha, had wrongly been rejected. Apart from the aforesaid contention, it was also alleged that recounting of votes was erroneously ordered and by manipulating the counting of votes in re-computation, the present appellant was declared elected, infact the election petitioner appellant ought to have been declared elected as he had secured higher votes. The election petition was decided on 23. 08. 2006. Issue No. 1 was about the alleged wrongful rejection of nomination papers of Sumera Ram and Kumba Ram and Issue No. 4 was about the locus of the election petitioner to raise objection about the wrongful rejection of nomination forms of Kumba Ram and Sumera Ram. So far the locus of the election petitioner to raise objection as to wrongful rejection of nomination forms of Kumba Ram and Sumera Ram is concerned, now there is no dispute about the right of the election petitioner to challenge the election of Gopa Ram on the said count, notwithstanding that the persons whose nomination papers were rejected have themselves not come forward to challenge the election.
(3.) SO far issue about any error in re-computation process is concerned, the same was not pressed before the learned District Judge trying the election petition. So far as Issue No. 1 was concerned, the learned District Judge found that the forms submitted by Kumba Ram and Sumera Ram were incomplete but he was of the opinion that merely because of incomplete information about the criminal record of the candidate or about the number of children and their respective dates of birth, the forms were not completely filled it was not enough to reject the nomination forms in the absence of any objection from any quarters. The Returning Officer ought to have assumed that after 23. 08. 1994 Sumera Ram and Kumba Ram had no child and, therefore, since, the non-fulfillment of the information did not effect the eligibility of the candidate, the nomination form ought not to have been rejected only on the basis of non-filling of certain columns of the form by treating the form to be incomplete. Such a defect in the form cannot be considered as of material character so as to warrant rejection of nomination forms by the Returning Officer. It has also been opined by the learned District Judge that according to election manual if a candidate does not declare the information about the number of children and their date of birth he is required to give a memo and it is only if after giving memo, the candidate does not submit the form or fills the incomplete form, it may be assumed that the candidate does not want to give the necessary information deliberately and his nomination form can be rejected. It is also stated in the election instructions that if during scrutiny of the form the candidate furnishes such declaration, then the nomination form cannot be rejected. On this premise, it was further found by learned District Judge that in the present case Returning Officer without requiring Sumera Ram and Kumbha Ram in writing or verbally to fill those entries, it was not authorised to reject the form. Thus, finding that two of the nomination forms of Kumba Ram and Sumera Ram were rejected wrongfully and considering that had the two candidates allowed to contest the election, the election result was likely to be affected, the election petition was allowed and the election of the appellant was set aside. The principal question arises for consideration in this appeal, therefore, is whether the rejection of nomination papers of Kumba Ram and Sumera Ram, which undisputedly and undeniable were not completely filled and were rightly rejected by the Returning Officer at the time of scrutiny of nomination papers or defects in nomination papers were not of substantial character and could not have been rejected, without calling upon the respective candidates to complete the form. ;