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PETITIONER: RAKESH KUMAR

       Vs.

RESPONDENT: SUNIL KUMAR

DATE OF JUDGMENT:       09/02/1999

BENCH: M.Srinivasan, U.C.Banerjee

JUDGMENT:

DR.A.S. ANAND, CJI

     This  appeal, under Section 116A of the Representation of  People  Act, 1951 (hereinafter the Act),  is  directed against  the judgment and order of the High Court of  Punjab and  Haryana  dated  November  5,  1997.   By  the  impugned judgment  a  learned Single Judge of the High Court  allowed Election  Petition  No.3  of 1997 filed  by  the  respondent herein  and set aside the election of the appellant  herein, the  returned  candidate, from 57, North  Ludhiana  Assembly Constituency  of  the  Punjab Vidhan  Sabha.   The  Election Commission of India notified the holding of elections to the Punjab  Vidhan Sabha.  The election programme for 57,  North Ludhiana  Assembly Constituency was fixed as under :   Last date   of  filing  of   nomination  -20-1-1997  Scrutiny  of nominations   -21-1-1997  Last  date   for   withdrawal   of candidate/ -23-1-1997 candidature Date of polling - 6-2-1997 Counting of the ballots -8-2-1997

     The  Election  Commission  of   India,  however,   re- scheduled  the programme, as 23rd January, 1997 was declared as  a  National Holiday.  The re-scheduled programme was  as follows:-  Last date for withdrawal of candidate/ -24-1-1997 candidature  Date  of  polling - 7-2-1997  Counting  of  the ballots -9-2-1997

     The appellant contested the election as a candidate of the  Indian  National  Congress  (Congress-I).   Respondent, Sunil  Kumar  filed his nomination paper for contesting  the election   as   a  candidate  of   Bhartiya   Janata   Party (hereinafter   BJP).   Vir  Abhimanyu   also   filed   his nomination  paper as a candidate set up by BJP while  Harish Kumar filed his nomination paper as a substitute candidate of  BJP.  According to the case set up by respondent in  his Election  Petition he had submitted his nomination paper  on 20th  January, 1997 at 12.10 p.m.  as a candidate set up  by BJP  and  along  with  the  nomination  paper  he  had  also submitted  Forms  A  and B as envisaged by paras  13(c)  and 13(d)  of  the Election Symbols (Reservation and  Allotment) Order, 1968 (hereinafter Election Symbols Order).  Forms A and B had been signed by Shri L.K.  Advani, President of the BJP and Shri Balramji Dass Tandon, President of Punjab State BJP, who had been authorised by BJP to intimate the names of the candidates set up by the party to the returning officer.

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Shri  Vir Abhimanyu also filed his nomination paper as a BJP candidate  on 20th January, 1997 at 12.50 p.m.  supported by Forms A and B also duly signed by Shri L.K.  Advani and Shri Balramji  Dass  Tandon,  who had been authorised by  BJP  to intimate  the  names of the candidates set up by BJP to  the Returning  Officer.   Shri Harish Kumar had similarly  filed his  nomination  paper  on the same day  as  a  substitute candidate  of  the BJP.  On 21st of January, 1997  when  the nomination  papers came up for scrutiny before the Returning Officer,  a  suo motu objection was raised by the  Returning Officer  to  the  effect that BJP had set up more  than  one candidate  in  the  election and, therefore, none  could  be treated  as  a  candidate set up by a  recognised  political party   BJP.  He, therefore, rejected the nomination papers of  respondent,  Sunil  Kumar as well as Vir  Abhimanyu  and Harish  Kumar,  in  spite of the fact that  respondent  Shri Sunil  Kumar  had  made an application, at the time  of  the scrutiny, stating that he was the official BJP candidate and requesting  that  his nomination paper be accepted  and  the symbol  reserved  for BJP be allotted to him.  He  requested for 24 hours time to produce an official confirmation of his candidature.   Aggrieved by the rejection of his  nomination paper,  the  respondent filed a Civil Writ Petition  in  the High  Court  challenging the order of the Returning  Officer dated  21st  of  January,  1997.   The  Writ  Petition  was, however,  dismissed on the ground that the remedy  available to  the writ petitioner was to file an Election Petition, if so  advised.   On  the  last   date  of  withdrawal  of  the candidature,  the appellant and 9 other candidates  remained in  the  fray.  After the polling, the counting  of  ballots took  place  on 9th of February, 1997 and the appellant  was declared  elected  having  secured 33614 votes.   After  the declaration  of  the result of the election, the  respondent filed  an Election Petition (No.  3 of 1997) challenging the election  of  the returned candidate on the ground that  his nomination  paper  as well as those of S/Shri Vir  Abhimanyu and  Harish  Kumar had been wrongly and illegally  rejected. It  was alleged by the respondent that the Returning Officer had  wrongly  rejected his application, filed under  Section 36(5)  of  the  Act,  seeking an  opportunity  to  meet  the objection  raised  by the Returning Officer.   The  Election Petition  was contested and the appellant resisted the  same asserting  that  the nomination papers of the respondent  as well  as  of S/Shri Vir Abhimanyu and Harish Kumar had  been rightly  rejected  for  non-compliance  with  the  mandatory provisions  of  Section 33(1) of the Act as amended  by  Act No.21  of 1996.  It was maintained that since no  intimation had  been given to the Returning Officer till 3.00 p.m.   on the  date  of the scrutiny about the official  candidate  by BJP,  the Returning Officer was justified in rejecting their nomination  papers.   From  the pleadings  of  the  parties, following  issues  were raised:  1.  Whether the  order  of rejection of nomination papers filed by the petitioner Sunil Kumar  was illegal and improper, if so, its effect?  OPP  2. Whether  the order of rejection of nomination paper filed by Shri  Vir  Abhimanyu  was illegal and improper, if  so,  its effect?   OPP  3.   Whether  the   order  of  rejection   of nomination  paper filed by Shri Harish Kumar was illegal and improper, if so, its effect?  OPP 4.  Relief.

     At  the  request of the parties, the record  including the  nomination  papers  and the material  relating  to  the rejection  of  the nomination papers was summoned  from  the District  Election Commissioner and on receipt of the  same, learned  counsel  for the parties stated before the  learned

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Single  Judge that no other evidence was required to be led. They addressed their arguments on the issues on the basis of the  summoned record.  Placing reliance on Section 36(5)  of the  Act, the learned Single Judge decided issues 1 to 3  in favour  of  the election petitioner (respondent herein)  and held  that the Returning Officer fell into a grave error  by declining  to  give time to the election petitioner to  meet the  objection raised by him suo motu and as such the  order of  rejection  of  nomination paper filed  by  the  election petitioner  Shri  Sunil Kumar was illegal and improper.   It was  also  found that the rejection of nomination papers  of S/Shri  Vir Abhimanyu and Harish Kumar were also illegal and improper.   As a result of the findings on issue Nos.1 to 3, issue  No.4 was decided in favour of the election petitioner and  the  Election Petition was allowed and election of  the appellant  was  set  aside.  Aggrieved by the order  of  the learned  Single Judge, the returned candidate has filed this statutory  appeal.  We have heard Mr.  P.S.  Mishra, learned senior  counsel  appearing for the appellant and  Mr.   S.P. Jain  learned  counsel  appearing  for  the  respondent  and examined the record.  The controversy in this appeal lies in a  rather narrow compass.  It revolves around the ambit  and scope  of Section 36(5) of the Act as well as the effect  of the  amendment  of Section 33(1) of the Act, as  amended  in 1996,  read  with Rule 13 of the Election Symbols Order,  on Section  36(5) of the Act.  It is, therefore, appropriate to extract  the relevant provisions of the Act and the election symbols  order  at the first instance.  Section 33(1)  after the amendment in 1996 reads as follows :  33  Presentation of nomination paper and requirements for a valid nomination.   (i)  On or before the date appointed under Clause (a)  of Section  30 each candidate shall, either in person or by his proposer,  between  the  hours  of  eleven  oclock  in  the forenoon  and  three oclock in the afternoon, delivered  to the  Returning Officer at the place specified in this behalf in  the  notice issued under Section 31 a  nomination  paper completed in the prescribed from and signed by the candidate and  by  an  elector  of  the  constituency  as  proposer  : Provided  that  a  candidate  not set  up  by  a  recognised political  party,  shall not be deemed to be duly  nominated for election from a constituency unless the nomination paper is  subscribed  by  ten  proposers  being  electors  of  the constituency  :   Provided further that no nomination  paper shall  be delivered to the returning officer on a day  which is  public  holiday:   Provided also that in the case  of  a local  authorities constituency, graduates constituency or teachers  constituency, the reference to an elector of the constituency  as proposer shall be construed as a reference of  ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers.

     Relevant provisions of Section 36 of the Act provide : 36.   Scrutiny of nominations.   (1) On the date fixed for the  scrutiny  of  the  nominations under  Section  30,  the candidates,  their  election  agents, one proposer  of  each candidate,  and one other person duly authorised in  writing by  each candidate, but no other person, may attend at  such time  and  place as the Returning Officer may appoint;   and the  returning  officer  shall   give  them  all  reasonable facilities  for  examining  the  nomination  papers  of  all candidates  which have been delivered within the time and in the  manner  laid down in Section 33.  xxx xxx xxx  (5)  The returning  officer  shall  hold the secrutiny  on  the  date appointed  in this behalf under clause (b) of Section 30 and shall  not  allow any adjournment of the proceedings  except

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when  such proceedings are interrupted or obstructed by riot or  open violence or by causes beyond his control.  Provided that  in  case  (an  objection is raised  by  the  returning officer  or  is  made  by any other  person)  the  candidate concerned may be allowed time to rebut it not later than the next  day but one following the date fixed for scrutiny, and the  returning officer shall record his decision on the date to  which  the  proceedings have been  adjourned.   (6)  The returning officer shall endorse on each nomination paper his       decision  accepting or rejecting the same and, if  the nomination  paper  is rejected, shall record  in  rejection. writing a brief statement of his reasons for such xx xxxxxxx (8)  Immediately  after all the nomination papers have  been scrutinised  and  decisions accepting or rejecting the  same have  been  recorded, the returning officer shall prepare  a list  of  validly  nominated  candidates, that  is  to  say, candidates  whose  nominations  have been found  valid,  and affix it to his notice board.

     The  Rule  13  of the Election Symbols Order  reads  : 13.   When  a candidate shall be deemed to be set up  by  a political  party    For  the  purposes  of  this  Order,  a candidate  shall be deemed to be set up by a political party if,  and only if,  (a) the candidate has made a declaration to  that  effect in his nomination paper;  (b) a  notice  in writing to that effect has, not later than 3.00 p.m.  on the last  date  for  making nominations, been delivered  to  the Returning   Officer  of  the   constituency  and  the  Chief Electoral  Officer  of  the State;  (c) the said  notice  is signed  by the President, the Secretary or any other  office bearer  of  the party and the President, Secretary  or  such other  office bearer is authorised by the party to send such notice;   and  (d) the name and specimen signature  of  such authorised  person are communicated to the Returning Officer of  the  constituency and to the Chief Electoral Officer  of the  State,  not later than 3.00 p.m.  on the last date  for making nominations.

     A  conjoint reading of the aforesaid provisions  inter alia  shows that after the amendment of Section 33(1) of the Act,  a nomination paper of a candidate in order to be valid must  be :  (i) where the candidate is set up by a political party:  (a) signed by the candidate and a proposer;

     (b)  contain  a  declaration by the candidate  to  the effect  that  he has been set up by a  recognised  political party;

     (c) be supported by a notice (Forms A & B) duly signed by  the  President, Secretary or any other office bearer  of the  party  duly  authorised  by the party to  send  such  a notice;  and

     (d)  the  name  and  specimen signatures  of  such  an authorised  person are communicated to the Returning Officer of  the  constituency and to the Chief Electoral Officer  of the  State,  not later than 3.00 P.M.  on the last date  for making  nominations;  (ii) where the candidate is not set up by  a recognised political party, his nomination paper shall be  valid  only if it is subscribed by ten proposers,  being electors  of  the  constituency.  (In view  of  the  limited nature  of controversy in this case, we are not referring to the  other requirements of a valid nomination paper) That in the  instant  case, the respondent had filed his  nomination paper  signed by one proposer only is an admitted case.   It

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is  also  not  disputed  that  the  respondent  had  made  a declaration  in  the nomination paper to the effect that  he had  been  set up by BJP and that the notice in Form A  &  B delivered  to  the Returning Officer within  the  prescribed time  was  signed by the authorised officers of BJP    Shri L.K.   Advani,  President  and  Shri  Balramji  Das  Tandon, President of State unit of BJP.  During the scrutiny, it had transpired  that  Shri  Vir  Abhimanyu had  also  filed  his nomination  paper  as  a  candidate set up by  BJP  and  his nomination  paper was also supported by a notice duly signed by  Shri L.K.  Advani and Shri Balramji Das Tandon.  Indeed, there  could  not  be two official candidates set  up  by  a recognised  political  party, since, the  official  reserved symbol  of  BJP  could  be allotted  to  only  one  official candidate.   The  respondent  claimed before  the  returning officer  that he was the official candidate of BJP.  No  one present  at  the  time of scrutiny of nomination  papers  on behalf  of  various candidates including Shri Vir  Abhimanyu appears  to  have raised any objection to  the  respondents claim of being the official candidate of BJP.  The Returning Officer,   however,  had  suo   motu,  raised  an  objection regarding  the  validity  of  the nomination  paper  of  the respondent  on the ground that BJP had set up more than  one candidate from the same constituency.  To meet the objection raised  by  the  Returning Officer, respondent,  Shri  Sunil Kumar,  at  the  time  of  scrutiny  itself,  submitted  the following  written  application to the Returning  Officer  : Ludhiana  21.1.1997  The  Returning Officer,  57,  Ludhiana North, Ludhiana.

     Sub  :   Scrutiny of Nomination paper.  Sir, I  am  an Bhartiya  Janta Party candidate from 57, Ludhiana North.   I have  already  submitted  the  Form A  and  Form  B  for nomination as party candidate.  Now I have come to know that other/others  candidate/candidates  has/have   also  applied nomination  paper/papers as B.J.P.  candidate.  As I am  the official  Bhartiya  Janta Party candidate, so my  nomination papers  be  accepted  and the symbol reserved  for  Bhartiya Janta  Party  be allotted to me.  Please give me 24  (twenty four)  hours  time  for getting  official  confirmation  for record.  Thanking you, Yours sincerely,

     Sd/- (SUNIL KUMAR)

     This  application apparently had been filed keeping in view  the provisions of the proviso to Section 36(5) of  the Act.   The prayer for grant of time to meet the objection of the  Returning  Officer, contained in this application  was, however, rejected.  The order rejecting the nomination paper of  Shri  Sunil Kumar reads as follows :   ORDER  REGARDING SCRUTINY

     The   Nomination  of  Sunil   Kumar  was  received  on 20.1.1997  at  12.10  p.m.   His name was  proposed  by  one proposal  and  was registered at serial No.8.  On  20.1.1997 the  candidate brought Form A and Form B wherein it has been mentioned  by the President of the Bhartiya Janta Party that Sunil  Kumar would be main party candidate.  However another candidate  namely Shri Vir Abhimanu also filed Form A & Form B  along with his application wherein it has been  mentioned that  he  is  the main candidate of  Bhartiya  Janta  Party. However  on  the  date of scrutiny it was noticed  that  his authorisation  does  not  any where state that  the  earlier authorisation  has  been  cancelled.  Shri Sunil  Mehra  has pleaded  that since his papers are in order his  candidature

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cannot  be  rejected at this stage  opportunity  should  be given  to the party to withdraw candidature before the  last date  of  withdrawal.  He also argued that the party  has  a right  to cancel or substitute an authorisation in favour of any candidate before the last date of withdrawal.  However I am unable to agree with this contention.  The Representation of  People Act, 1996 has been amended as per amended section 33  of the Representation of People Act 1951, the Nomination of  the  candidate  to a state Legislative  assembly  to  be subscribed  by :  (i) One elector of the constituency if the candidate  has  been set up either by a recognised  national Party or by a recognised Party in the State or in the States in  which it is recognised as a State party.  (ii) Ten  (10) electors  of  the Constituency as proposer if the  candidate has been set up by a Registered unrecognised political party or if he is an independent candidate.  The political parties are  required to intimate the names of the candidates set up by  them  to  the  Returning   Officer  before  scrutiny  of Nomination papers.  In this case the last date for the party to  make  nomination in Form A and Form B was  20.1.1997 upto 3 p.m.  Therefore, under the amended law the nomination made  by  the party in Form A and Form B prescribed  for this purpose by the Commission under para 13 of the Election Symbols  (Reservation and Allotment) Order 1968 also  become part  of  scrutiny.  The Returning officer has to  determine the  validity  of nomination order (paper), keeping in  view whether the candidate has been set up by the Political party or  not.  If he has been set up by the Political party  only one  proposer is required and if he has been an  independent then  ten proposers are required.  The political parties has to  decide before scrutiny of the Nominations as to which it is  sponsoring.   It cannot be given further time to  change such  authorisation after scrutiny.  Hence the contention of Shri  Sunil  Kumar  that party be given time  till  date  of withdrawal  is  not valid.  Hence I am duty bound to  decide the matter today itself.  Accordingly I have scrutinised the nomination  papers  of Sunil Kumar and also  Vir  Abhimanyu. Since  the  party has submitted authorisation in respect  of both   these   candidates   as   main  candidates   and   no authorisation   mention  the  cancellation   of  the   other authorisation.   I  have  to reach the conclusion  that  the party  has  set up two main candidates which it  cannot  do. Therefore,  as per law both candidates have to be treated as independent  candidates.  But the law also required that the independent  candidate should be sponsored by 10  proposers. In  this  case  there  is   only  one  proposer,  hence  the requirement of law has not been fulfilled and therefore, the Nomination paper of Sunil Kumar is rejected.

     Dated  :   21.1.1997  Sd/-   Daljit  Singh,  Returning Officer, 57-Ludhiana North

     As  already noticed, after the amendment of Section 33 (1)  of  the Act in 1996 a change has been brought about  by the Legislature with regard to the requirement of the number of  proposers  of  nomination  papers to  be  filed  by  the candidates.   After  the  amendment,  the  nomination  of  a candidate  to a State Legislative Assembly is required to be subscribed  by  only one elector of the constituency,  where the  candidate  has  been  set up  either  by  a  recognised national  political party or by a recognised political party in the State or in the States in which it is recognised as a party  and  in  other cases the nomination paper has  to  be subscribed by 10 electors of the constituency, as proposers, where   the  candidate  has  been   set  up  either  by   an

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un-recognised   political  party  or   is   an   independent candidate.   The  political  parties are  also  required  to intimate  the names of the candidates set up by them to  the Returning  Officer  before scrutiny of nomination papers  in Forms  A & B.  The returning officer rejected the nomination paper  of the respondent, relying upon Section 33(1) of  the Act, as amended.  It was held that since BJP had set up more than  one candidates and had not decided before scrutiny  of the  nomination papers as to who was its official  candidate by cancelling the authorisation of the other candidate, both the  BJP  candidates could be treated only as  independent candidates  and  not the candidates set up by  a  recognised political party and since neither of the candidates had been sponsored  by  ten proposers, their nomination  papers  were invalid.   The  Election  Commission  of  India  has  issued instructions  in exercise of its statutory functions.  Those instructions  are  contained in the Hand Book for  Returning Officers.  Chapter VI of the Handbook deals with scrutiny of nomination  papers  by the returning officer.   The  learned single  Judge  of  the High Court has  referred  to  various provisions  of the instructions and has rightly come to  the conclusion  that the returning officer did not follow  those instructions  while  scrutinising   the  nomination  papers, thereby  adopting a wrong procedure.  We agree with the view of the High Court in that behalf.  We are unable to persuade ourselves  to agree with the submission of Mr.  Mishra  that the  returning  officer  was   justified  in  rejecting  the nomination  paper of the respondent for non-compliance  with the  requirements of Section 33(1), as amended, without  any further  enquiry.   The argument over looks the  proviso  to Section  36(5) of the Act as well as the instructions issued by   the   Election  Commission  of  India   (supra).    The legislature  in its supreme wisdom did not amend the proviso to  Section 36(5) of the Act after Section 33(1) was amended in  1996, thereby clearly exhibiting its intention that  the said  proviso was required to be given its full effect, more particularly  because  the  duty which a  returning  officer performs  while scrutinising the nomination papers is  quasi judicial  in  character, even after Section 33(1)  had  been amended.  The proviso to Section 36(5) of the Act lays down: Provided  that  in  case  (an objection  is  raised  by  the returning  officer  or  is  made by any  other  person)  the candidate  concerned  may  be allowed time to rebut  it  not later than the next day but one following the date fixed for scrutiny,  and  the  returning   officer  shall  record  his decision  on  the  date to which the proceedings  have  been adjourned.

     Through the proviso, the legislature has provided that in  case an objection is raised during the scrutiny, to  the validity of a nomination paper of a candidate, the Returning Officer, may, give an opportunity to the concerned candidate to  rebut  the objection by giving him time not later  than the  next  day.  This is in accord with the  principles  of natural  justice also.  Since, no other candidate had raised any  objection  to the claim of the respondent of being  the official candidate of BJP, and the objection had been raised by  the  Returning  Officer  suo motu, the  mandate  of  the proviso to Section 36(5) of the Act warranted the holding of a  summary  enquiry,  to  determine   the  validity  of  the nomination  paper by the returning officer, while exercising his  quasi-judicial  function.   In the  present  case,  the respondent  had sought an opportunity to meet the objection, but  even  if  he had not sought such  an  opportunity,  the returning officer ought to have granted him time to meet the

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objection  in  the interest of justice and fair  play.   The Returning Officer would have been justified in rejecting the nomination  paper  of  the respondent,  had  the  respondent either  not  sought  an opportunity to rebut  the  objection raised  by the Returning Officer or was unable to rebut  the objection  within the time allowed by the returning officer. Since,  the  respondent,  had  by  his  written  application (supra),  filed  at the time of scrutiny of  the  nomination papers itself claimed to be the official candidate set up by BJP, which claim was not disputed by any one else during the scrutiny,  and  had  sought  time of  24  hours  to  provide relevant  material  in  support of his  submission,  it  was obligatory  on  the part of the Returning Officer  to  allow time  to him to rebut the objection, suo motu, raised by the Returning  Officer.  He could have given him any time to  do so within 24 hours but to deny him such an opportunity, in the  facts  and circumstances of the case, was neither  fair nor  proper or justified.  It was expected of the  Returning Officer  to adjourn the scrutiny of the nomination paper  to enable the respondent to meet the objection.  The use of the expression  not  later than the next day but one  following the  date  fixed for scrutiny under proviso to  sub-section (5)  of  Section 36 of the Act un-mistakably shows that  the Returning Officer has been vested with the discretion to fix time  to  enable  a candidate to rebut an objection  to  the validity  of his nomination paper and such a discretion  has to be fairly and judicially exercised.  The refusal to grant an  opportunity to the returned candidate and rejecting  his nomination  paper  was clearly an arbitrary exercise of  the discretion  vested in the Returning Officer.  The  Returning Officer  has  also  not  given any cogent  reasons  for  his refusal  to  grant  an  opportunity as  prayed  for  by  the respondent.   The  Returning  Officer appears to  have  been labouring under some misconception when he recorded that the political party cannot be given further time to change such authorisation after scrutiny.  Under the proviso to Section 36(5)  of  the  Act,  the scrutiny itself  would  have  been postponed to the adjourned time and, therefore, it was not a case  of  meeting  the  objection   after  scrutiny  of  the nomination papers.  The failure to exercise his jurisdiction to  postpone  the  decision  as  to  the  validity  of   the nomination   paper  of  the   respondent,  even  after   the respondent  had  sought time to meet the  objection,  indeed rendered  the  rejection  of  the nomination  paper  of  the respondent  as  both  improper and illegal.   The  Returning Officer  is  not  expected  to reject  a  nomination  paper, without  giving  an  opportunity  to the  candidate  or  his representative  present  at the time of scrutiny to meet  an objection,  capable of being met, particularly where such an opportunity   is  sought  for  by   the  candidate  or   his representative  and  no one present on behalf of  the  other candidates  had  opposed the claim made by  the  respondent. Having  raised  the objection suo motu, the request  of  the respondent  who  was present and sought time in  writing  to seek  clarification from the BJP as to who was its  official candidate, the Returning Officer in all fairness was obliged to  grant  time to the respondent as prayed for by  him  and postponed  the scrutiny to the next day but he ought not  to have  rejected  his  nomination  paper in  hot  haste.   The Returning  Officer,  obviously,  failed   to  exercise   his jurisdiction  under  Section 36(5) of the Act  properly  and thereby  fell into a grave error in rejecting the nomination paper  of  the respondent.  The learned Single Judge of  the High  Court  was, therefore, perfectly justified in  holding that the nomination paper of the respondent had been wrongly

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and  illegally  rejected, thereby rendering the election  of the  returned candidate as void.  The impugned order,  thus, suffers  from neither a jurisdictional defect nor any  other error  whatsoever.  In the view that we have taken, we  need not detain ourselves to consider the effect of the rejection of  nomination  papers  of S/Shri Vir Abhimanyu  and  Harish Kumar  as the Election Petition was bound to succeed for the improper  and  illegal rejection of the nomination paper  of respondent,  Sunil  Kumar itself.  This appeal  consequently has  no  merits  and is dismissed with costs.   Counsel  fee Rs.7,000/- .