When the Petitioner who challenges the election on the ground that the returned candidate is not the voter of that same constituency- non of production of electoral roll or a certified copy thereof by him is a fatal to him but not to the returned candidate as there is no need to him to produce voter list or certified copy of that constituency = The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.= The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that a candidate’s name and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.= we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act. Consequently and for the aforesaid reasons, we cannot sustain the order of the High Court. Accordingly, the same is set aside and the appeal is allowed. The election of the appellant-returned candidate is declared to be valid in law.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.3797 OF 2015



      RAJENDRA KUMAR MESHRAM                 APPELLANT(S)

                                   VERSUS

      VANSHMANI PRASAD VERMA AND ANR         RESPONDENT(S)

                                  JUDGMENT


      RANJAN GOGOI, J.


1.    The election of the appellant to  the  No.81  Deosar  Constituency  of
Madhya Pradesh Legislative Assembly which was held on  11.05.2013  has  been
set aside by the High Court in an election petition filed by the  respondent
No.1 herein. The validity of the  said  order  of  the  High  Court  is  the
subject matter of the present appeal.

2.    On a reading of the election petition filed by  the  respondent  No.1,
it would appear to us that several grounds  were  urged  to  invalidate  the
election in question. According to the respondent-election  petitioner,  one
of the nominations filed by him  as  a  candidate  of  the  Indian  National
Congress Party was wrongly rejected on the ground that the symbol  allotment
letter was submitted by the election petitioner after the  stipulated  time.
However  as  two  other  nominations  filed   by   the   respondent-election
petitioner as an  independent  candidate  was  accepted,  he  contested  the
election in which he lost. Consequently, he challenges the rejection of  his
nomination as a Indian National Congress Party candidate as being  wrongful.
Apart from the above ground, the election petition was also  filed  alleging
that the appellant-returned candidate was a government servant. In  addition
to the above, it was  pleaded  that  the  appellant-returned  candidate  had
failed to furnish, along with the nomination paper,  a  copy/certified  copy
of the electoral roll of No.80 Singrauli  constituency  in  which  electoral
roll his name was claimed to be appearing against serial  No.118.  According
to the  election  petitioner  on  account  of  the  aforesaid  omission  the
returned candidate was not eligible to  participate  in  the  election.  His
nomination, therefore, was wrongly accepted.

3.    The High Court answered the first  two  questions  in  favour  of  the
returned candidate. However, insofar as the third question set  forth  above
is concerned, the conclusion of the High Court is adverse  to  the  returned
candidate. In this connection the High Court came  to  the  conclusion  that
the returned candidate had not filed the electoral roll  or  certified  copy
thereof of No.80 Singrauli Constituency and therefore the returning  officer
had committed an illegality in accepting  the  nomination  of  the  returned
candidate and in not rejecting the same  on  account  of  non-compliance  of
Sections 33(5) and 36(2)(b) of the Representation of People Act,  1951  (For
short, “the 1951 Act”). On the  said  basis  the  High  Court  came  to  the
conclusion that the election of the returned  candidate  was  liable  to  be
declared void under Section 100(1)(a) along  with  Section  100(1)(d)(i)  of
the  1951  Act.  Consequential  directions  therefore  have   been   issued.
Aggrieved this appeal has been filed.

4.    We have heard Shri Shekhar Naphade, learned senior  counsel  appearing
for the appellant, Shri Vivek Tankha, learned senior counsel  appearing  for
the respondent No.1  and  Shri  Mishra  Saurabh,  learned  counsel  for  the
respondent No.2.

5.     As  no  cross  appeal  has  been  filed  by  the  respondent-election
petitioner challenging the findings of the High Court adverse  to  him,  the
scope of the present appeal is confined to the correctness of the  order  of
the High Court insofar as the third question set forth above is concerned.

6.    At the outset the relevant part of  the  pleadings  contained  in  the
election petition insofar as the said issue is concerned may be set  out  as
hereunder :-

1.11  That, the election of the respondent as a member of  M.P.  Legislative
Assembly for Devsar Constituency deserves to be declared  as  void  for  the
reason that the Returning Officer  has  wrongly  rejected  the  petitioner's
nomination form as candidate sponsored by Indian National Congress and  also
for wrongly accepting  the  nomination  from  the  respondent.  It  is  also
submitted that the respondent not only failed to submit order  by  Competent
Authority accepting his resignation but also failed to furnish  a  certified
copy of the voter list to entitle him to contest the  election  from  Devsar
constituency as he is registered voter of  80,  Singrauli  constituency  and
without filing the certified copy of relevant part of voter list he was  not
eligible to contest from  other  constituency.  Acceptance  of  respondent's
nomination form has materially affected the election result.

1.12        That the respondent has been illegally allowed  to  contest  the
election while the petitioner has been wrongly denied the right  to  contest
the election and therefore, this petition.

1.13        That, the rejection of nomination form  of  the  petitioner  was
illegal and contrary to election law and  rules  framed  thereunder  and  as
such declaring the respondent No.1 (one)  as  returned  candidate  from  81,
Devsar constituency deserves to be quashed and deserves to  be  declared  as
null and void.

1.14        That, the nomination form of the  respondent  has  been  wrongly
accepted by the Returning  Officer  ignoring  the  legal  provision.  It  is
submitted that the respondent has not produced any valid documents to  prove
that he was not in service on the date of filing of his nomination form  and
he has also not furnished the certified copy of the  relevant  part  of  the
voter list of the constituency in  which  he  was  registered  as  voter  to
entitle him to contest election from  other  constituency  i.e.  81,  Devsar
Constituency.”


7.    In a written statement  filed  by  the  returned  candidate,  all  the
aforesaid averments have been denied. On the basis of the pleadings  of  the
parties the following issues were framed by the Court:-
(1)    Whether  the  returning   officer   has   malafidely   rejected   the
petitioner's nomination form  as  the  candidate  sponsored  by  the  Indian
National Congress under the influence of the then ruling party ?

(2)   Whether respondent No.1 was in  government  service  at  the  time  of
acceptance of his nomination form by the returning officer ?

(3)   Whether respondent No.2 has  committed  illegality  in  accepting  the
nomination form of respondent No.1 ?

(4)   Whether respondent No.1 has failed to prove that his name was  in  the
voter list of 80 Singrauli Constituency ? (if so, effect)

(5)   Whether respondent No.1 has failed to submit valid  Caste  Certificate
for contesting the election from the  constituency  reserved  for  scheduled
caste category ?

(6)   Whether result of election of 81 Deosar  Constituency  was  materially
affected due to improper acceptance of nomination of respondent No.1 ?

(7)   Relief and costs ?

8.    As issue Nos.1 and 2 extracted above, have been answered in favour  of
the returned candidate and  there  is  no  cross  appeal,  it  is  only  the
remaining issues that survive for consideration. All the said issues  center
round the question of improper acceptance of  the  nomination  form  of  the
returned candidate. In this regard, issue No.6 which raises the question  of
material affect of the improper acceptance of  nomination  of  the  returned
candidate on the result of the election may be specifically noticed.

9.    Under Section 100 (1)(d), an election is liable to  be  declared  void
on  the ground of improper acceptance  of  a  nomination  if  such  improper
acceptance of the nomination has  materially  affected  the  result  of  the
election. This is in distinction to what is contained in  Section  100(1)(c)
i.e. improper rejection of a nomination which itself is a sufficient  ground
for invalidating the election without any further requirement  of  proof  of
material effect of such rejection on the result of the election.  The  above
distinction must be kept in mind. Proceeding on  the  said  basis,  we  find
that the High Court did not endeavor to go into the  further  question  that
would be required to be determined even if it is assumed that the appellant-
returned candidate had not filed the electoral  roll  or  a  certified  copy
thereof and, therefore, had not complied with the  mandatory  provisions  of
Section 33(5) of the 1951 Act. In other  words,  before  setting  aside  the
election on the above ground, the High Court ought to  have  carried  out  a
further exercise, namely, to find out whether  the  improper  acceptance  of
the nomination had materially affected the result of the election  petition.
This  has  not  been  done  notwithstanding  issue  No.6  framed  which   is
specifically to the above effect. The High Court having failed to  determine
the said issue i.e. issue No.6, naturally, it was not empowered  to  declare
the election of the appellant returned candidate as void even if we  are  to
assume that the acceptance of the nomination of the returned  candidate  was
improper.

10.   An argument has been advanced on  behalf  of  the  respondent-election
petitioner that the High Court has also found the election  to  be  void  on
the grounds mentioned in Section 100(1)(a).  In  this  regard  it  has  been
submitted that  the  failure  of  the  returned  candidate  to  furnish  the
electoral roll of the constituency where his name appears as a voter or  the
certified  copy  thereof  would,  by  itself,  establish  that  he  was  not
qualified to take part in the election as he had failed to prove that he  is
a voter. Therefore his  election  was  liable  to  be  declared  void  under
Section 100(1)(a) of the 1951 Act which the High Court had done.


11.   Under Section    100(1)(a) the election of the returned  candidate  is
liable to be declared  void  if,  inter  alia,  he  was  not  qualified  for
membership of Parliament or the State Legislature as may be.  Section  5  of
the 1951 Act deals with  qualifications  for  membership  of  a  Legislative
Assembly of a State which,  inter  alia,  requires  a  candidate  to  be  an
elector of any Assembly constituency of the State. To  declare  an  election
void under Section 100(1)(a), it must, therefore, be  established  that  the
returned candidate is not a  voter  of  any  assembly  constituency  of  the
State.

12.   After the receipt of nomination, the election petitioner has  objected
to the acceptance of the nomination of the appellant-returned  candidate  on
the ground  that  the  returned  candidate  was  a  Government  servant  and
therefore disqualified from contesting the election.  This was  rejected  by
the Returning Officer on 11.11.2013 holding that the returned candidate  had
duly submitted his resignation which was accepted before the date of  filing
of nomination.  No objection to the effect that the returned  candidate  was
not qualified to contest the election as he was not a voter of any  assembly
Constituency of the State was raised in the  objection  filed.  Neither  was
any objection taken to the  effect  that  the  returned  candidate  was  not
eligible to participate  in  the  election  as  he  had  not  furnished  the
electoral roll of the Constituency in which he was a voter or  a   certified
copy thereof. However, in the election petition filed,  it  was  pleaded  in
para 1.11 of the election petition,  (extracted  above)  that  the  returned
candidate had “failed to furnish a certified  copy  of  the  voter  list  to
entitle him to contest the  election  from  Devsar  constituency  as  he  is
registered voter of  80,  Singrauli  constituency  and  without  filing  the
certified copy of relevant part  of  voter  list  he  was  not  eligible  to
contest from other constituency.”  There was  no  pleading  at  all  to  the
effect that the appellant is not a voter of any  assembly  constituency  and
therefore is not qualified.

      13.   From the above, it is clear that it was  not  the  case  of  the
respondent-election petitioner that  the  appellant-returned  candidate  was
not qualified to contest the election.  It is only before  this  Court,  and
that too in the oral arguments made, that it has been urged, by  relying  on
the order of the High Court, that the returned candidate was  not  qualified
to contest the  election  under  Section  100(1)(a)  of  the  1951  Act  and
therefore his election was rightly set aside by the High Court.

14.   The trial of an election petition, as per Section 87 of 1951  Act  has
to be in accordance with the provisions of  the  Code  of  Civil  Procedure,
1908. When no pleadings that the election  of  the  returned  candidate  was
void on grounds mentioned in Section 100(1)(a) were made  and  no  issue  on
this score was struck and  no  opportunity  to  the  returned  candidate  to
adduce relevant evidence was afforded, the High  Court,  in  our  considered
view, could not have found that the election of the returned  candidate  was
void under Section 100(1)(a). In fact, from a reading of para  1.11  of  the
election petition as extracted above, it clearly appears that  the  election
petitioner had stated that the appellant-returned candidate is  a  voter  of
No.80 Singrauli constituency but he had omitted  to  enclose  the  electoral
roll or a certified copy thereof along  with  his  nomination  papers  which
made him ineligible to contest the election. This part of the pleading  must
be seen in the light of the provisions of Section 33(4)  and  33(5)  of  the
1951 Act.  Under Section 33(4) the returning officer  must  satisfy  himself
that  a  candidate’s  name  and  electoral  roll  numbers  is  the  same  as
claimed/entered in the nomination paper.  If the candidate  is  a  voter  of
the same constituency from which he seeks election, there is  no  difficulty
the electoral rolls would be readily available with the  returning  officer.
But if the candidate is a voter of another constituency, then Section  33(5)
requires him to enclose  along  with  the  nomination  or  at  the  time  of
scrutiny, the electoral roll or certified copy of  the  same  pertaining  to
that constituency. The entire case of the election petitioner as pleaded  is
that the appellant-returned candidate was a voter  of  another  constituency
i.e. No.80 Singrauli constituency but he had not enclosed  or  produced  the
electoral roll of that constituency or  a  certified  copy  thereof  thereby
making him ineligible to contest the election.

15.   In view of the state of the pleadings as  noticed  above;  the  issues
framed and the evidence led by the parties, we cannot agree  with  the  High
Court that the respondent-election  petitioner  had  made  out  a  case  for
declaration that the result of  the  election  in  favour  of  the  returned
candidate was void under Section 100(1)(a) of the 1951 Act.  Having  reached
our conclusion on above said basis, it is  not  necessary  to  go  into  the
question  raised  on  behalf  of  the  respondent-election  petitioner  that
failure to produce the copy of the electoral roll  of  the  constituency  in
which a candidate is a voter or a certified copy thereof, by  itself,  would
amount to a proof of lack of/absence of qualification  under  Section  5  of
the 1951 Act.  All that would be necessary for us to say in this  regard  is
that any such view would not  be  consistent  with  the  legislative  intent
expressed  by  the  enactment  of  two  separate  and  specific   provisions
contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act.

16.   Though a number of  precedents  have  been  cited  on  behalf  of  the
respondent-election petitioner to sustain the arguments  advanced,  it  will
not be necessary for us to take any specific note of the principles  of  law
laid down in any of the said cases inasmuch as all the said cases relate  to
rejection  of  nominations  on  account  of  failure  to  comply  with   the
provisions of Section 33(5) of the Act of 1951 which is not in issue  before
us in the present appeal.

17.   Consequently and for the aforesaid  reasons,  we  cannot  sustain  the
order of the High Court. Accordingly, the same is set aside and  the  appeal
is allowed.  The election of the appellant-returned  candidate  is  declared
to be valid in law.


                                                           ..............,J.
                                             (RANJAN GOGOI)



                                                          ...............,J.
                                                          (PRAFULLA C. PANT)
      NEW DELHI
      OCTOBER 03, 2016