A.K. Ganguly, J.
1. This writ petition has been filed challenging a judgment dated 26th February, 2005 passed by the District Judge, Koraput, in Election Petition No. 1 of 2003 filed by one Lambodar Turuk.
2. By the said impugned judgment the District Judge held that the election petition has merit and is to be allowed and came to a finding that the rejection of nomination papers of Lambodar Turuk by the Election Officer was improper. Since the rejection of nomination paper was improper the District Judge set aside the entire process of election for Ward No. 13 of the N.A.C., Umerkote, and the said election was declared null and void and the election of opposite party No. 2 in the said election petition, who is the petitioner in the present writ petition, was set aside. A casual vacancy in Ward No. 13 of the N.A.C., Umerkote, was declared and the District Magistrate/Collector, Nabarangpur, was directed to take up all such proceedings to fill up the said vacancy by a bye-election. After filing this writ petition initially a stay was obtained by the writ petitioner as a result of which no steps could be taken to fill up the said vacancy. This Court by an order dated 15.11.2006 vacated the stay on the ground recorded in the said order and called for the lower Court records. Pursuant to the said order, the records have been produced today in Court.
3. This Court called for the records, as the rejection order of Lambodar Turuk passed by the Election Officer was not filed along with this writ petition.
4. We have looked into the records and we find that the order of rejection of nomination papers of Lambodar Turuk is marked as Exts.1 and 2 as two sets of nomination papers were filed by him. On the nomination paper itself the Election Officer has given his endorsement disclosing thereby the reasons for rejection. This Court after reading the same finds that the only reason which was assigned by the Election Officer in support of his order of rejection is that Lambodar Turuk had filed two sets of nomination papers but in both the nomination papers the seconder was absent at the time of scrutiny of the nomination papers. According to the Election Officer seconder has to remain present at the time of scrutiny of the nomination papers. The Election Officer has also noted in the impugned order that a candidate of the same Ward has filed an objection petition stating that "seconder is absent and also the signature of the seconder is not authenticated". In view of those facts the Election Officer rejected both the nomination papers of Lambodar Turuk.
5. It has been stated by the learned Counsel appearing on behalf of the candidate who raised the objection before the Election Officer that name of the seconder appears in the Electoral Roll.
6. The learned District Judge found that the presence of seconder is not a mandatory requirement under the relevant statutory provisions and by saying so the learned District Judge has referred to Rule 29(1) of the Orissa Municipal (Delimitation of Wards, Reservation of Seats and Conduct of Election) Rules, 1994. The said Rules have been framed under Section 392 of the Orissa Municipal Act, 1950.
7. Under Rule 29 of the said Rules it provides for scrutiny of nomination papers. Rule 29(1) of the Rules on which the Election Officer relies runs as follows:
29. Scrutiny of nomination papers-(1) On the date appointed for the scrutiny of nomination, the candidates, one proposer and one seconder of each candidate and any other person duly authorized in writing by each candidate, and except for the purpose of assisting the Election Officer, no other person, may attend at such time and place as may be specified under Rule 28 and Election Officer shall give such person all reasonable facilities to examine the nomination papers of all candidates which have been received as aforesaid.
From a perusal of the said Rule it appears that on the date fixed for the scrutiny of nomination papers the following persons may be present namely:
(a) one proposer and one seconder of each candidate;
(b) any other person duly authorized in writing by each candidate.
Apart from the above persons no other persons may attend at such time and place except for the purpose of assisting the Election Officer.
8. The Rule, however, provides that the Election Officer shall give such person all reasonable facilities to examine the nomination papers of all candidates which have been received.
A perusal of the said Rule makes it clear that the purpose of the said Rule is to limit the presence of persons at the time of scrutiny of nomination papers. The obvious intention behind the same is that at the time of scrutiny of nomination papers the proposer and seconder need not be present and in order to facilitate the exercise of scrutiny the presence of persons has been limited. The said Rule has no other purpose. It is obvious that the presence of the persons mentioned in the said Rule is optional. It cannot be said that if a proposer or seconder is absent, the nomination paper ipso facto becomes liable for rejection. Therefore, the finding of the learned Judge in his judgment which is under challenge that presence of seconder is not mandatory is a correct finding.
9. Under Rule 29(2), Election Officer has been vested with power to examine the nomination and decide all objections and can reject any nomination on the grounds enumerated therein. A perusal of the same is of some importance for decision in this case. As such Rule 29(2) is set out below:
29(2). The Election Officer shall then examine the nomination papers and shall decide all objection which may be made at the time to any nominations and may, either on such objections or on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds-
(i) that the candidate is ineligible for contesting election under Sections 12,13 and 16 of this Act;
(ii) that the candidate is unable to produce an affidavit from the competent authority to the effect that he has not more than one spouse living and not more than two children;
(iii) that the proposer or seconder is a person whose name is not registered on the electoral roll for the ward of the Municipality.
(iv) that there has been any failure on the part of the candidate or his proposer or seconder to comply with any of the provisions of Rule 25 or 27; or
(v) that in case the election is solely for a seat reserved for the Scheduled Tribes or Scheduled Castes or for women or for the Backward Class of citizens the candidate does not belong to the Scheduled Tribes, or Scheduled Castes or Women or to the Backward Class of citizens, as the case may be. In the case of a member of the Scheduled Castes or Scheduled Tribes or Backward Class of citizens, the candidate is to prove himself to be a member of such Caste/Tribe/Backward Class of citizens by producing a certificate to that effect from the competent authority before the Election Officer.
On perusal of the order of the Election Officer, it cannot be said that any of the said ground is present in the order of rejection of the nomination paper by the Election Officer. Under Rule 29(2)(iii) it is provided that the proposer or seconder must be a person whose name should be registered in the electoral roll for the ward of the Municipality. In the instant case, it is not disputed that the seconder of nomination paper of Lambodar had his name registered in the electoral roll of the Municipality. It is not disputed by the learned Counsel for the petitioner. Therefore, this Court does not find any valid reason for rejection of the nomination paper of Lambodar. Learned Counsel for the petitioner has raised a very technical point that while filing the election petition Lambodar did not challenge the endorsement which is marked as Ext.1/a in the nomination paper. The said challenge has no subsistence. The entire nomination paper and the reason given by the Election Officer for its cancellation have been made an exhibit and have been challenged. Therefore, Ext.1/a has no independent existence and is a part of the nomination paper. Therefore, the said plea is mainly a technical plea and is devoid of merit. Apart from the aforesaid pleas, learned Counsel for the petitioner has relied upon two judgments of the Supreme Court in support of his contention that the rejection of the nomination paper is valid.
10. Reliance was placed in the case of Ram Dayal v. Brijraj Singh . In that case, the defect in the
nomination paper was that the nomination paper had a thumb impression of the proposer but the said nomination paper was not attested as required by law and was filed on the last date for receiving nomination paper. As such, it was held that the said defect is substantial within the meaning of Section 36(4) of the Representation of the People Act, 1951 and cannot be remedied at the time of scrutiny and therefore, the nomination paper in such a situation has to be rejected. It is obvious from what has been stated above that the actual matrix of this case is totally different from the fact of the case of Ram Dayal. As such, the said decision has no application to the present case. Second decision was placed in the case of Lila Krishan v. Mani Ram Godara and Ors. . In that case the nomination paper was
rejected as the serial number of proposer mentioned in nomination paper did not tally with serial number mentioned in voters list and no assistance was provided to the Returning Officer to correlate and identify the proposer. In such situation the rejection of nomination paper was held to be valid. It goes without saying that there is substantial difference between the present case and the case of Lila Krishan (supra). We are of the view that in the factual position of the present case reliance was rightly placed by the learned District Judge on the decision of the Supreme Court in the case of Ms. Krishna Mohini v. Mahinder Nath Sofat . In Paragraphs 42
of 51 of the said Report the learned Judges held that rejection of nomination paper is a serious matter inasmuch as rejection of nomination paper ipso facto has the effect of setting aside the entire election process. This Court is in respectful agreement with the said decision of the Supreme Court in Ms. Krishna Mohini. Therefore, this Court upholds the finding of the learned District Judge that the rejection of nomination paper by the Election Officer is wholly improper and the judgment and order passed by the learned District Judge is correct and is affirmed by this Court.
11. The writ petition is dismissed.
This Court directs the District Magistrate/Collector to carry out the directions given by the District Judge, Koraput for filling of up of the vacancy as expeditiously as possible by holding a bye-election.
The Lower Court records be sent back immediately.