Holding

The refusal to grant the respondent time to rebut the objection and the consequent rejection of his nomination paper was an arbitrary exercise of discretion and illegal.

Summary

In the 1997 Punjab Vidhan Sabha election, three candidates, including Sunil Kumar, filed nomination papers as BJP candidates. The Returning Officer (RO) raised a suo motu objection that the BJP had set up more than one candidate and rejected all three nominations. Sunil Kumar applied under Section 36(5) of the Representation of People Act, 1951, for 24 hours to produce official confirmation of his candidacy, but the RO refused the request and upheld the rejection. The Punjab & Haryana High Court held that the RO’s refusal to grant time was a grave error and set aside the election of the Congress candidate, Rakesh Kumar. On appeal, the Supreme Court affirmed that the RO’s refusal constituted an arbitrary exercise of discretion, violating the proviso to Section 36(5) and principles of natural justice, and therefore the rejection of the nomination was illegal. Consequently, the appeal was dismissed, upholding the High Court’s decision.

Issues considered

Whether the order rejecting Sunil Kumar's nomination paper was illegal and improper, and what its effect is
Whether the order rejecting Vir Abhimanyu's nomination paper was illegal and improper, and what its effect is
Whether the order rejecting Harish Kumar's nomination paper was illegal and improper, and what its effect is

Legislation cited

Election Symbols (Reservation and Allotment) Order, 1968s. Rule 13
Representation of People Act, 1951s. 33(1), s. 36(5)

Subjects

election lawnomination papersreturning officer discretionSection 36(5) RPASection 33(1) RPAnatural justicepolitical party candidateelection petition

Judgment

-"'I L
(
A RAKESH KUMAR
v.
SUNIL KUMAR

FEBRUARY 9, 1999

B
[DR. A.S. ANAND, 0, M. SRINIVASAN
AND U.C. BANERJEE, JJ.]

Election Law :

C Representation of People Act 1951, Ss. 33(1), 36(5) r/w Election Sym-
bols (Reservation and Allotment) Order 1968, Rule 13--Respondent and two
other candidates filing nomination papers as BJP candidates for election to
the Punjab Vidhan Sabha-Returning Officer raising suo motu objection at
time of scrutiny that BJP had set up more than one candidate and none could
D be treated as its candidate-:-Respondent requesting 24 hours' time to produce
official confinnation of his candidature-Returning Officer declining time to
Respondent and rejecting nomination paper-Respondent's election petition
allowed by High Coun and Appellant's election set aside-Held, refusal by
Returning Officer to grant opportunity to Respondent and rejection of his
nomination paper was arbitrary exercise of discretion and illegal; it was
E obligatory for Returning Officer to allow Respondent time to rebut objection
raised suo motu.

The respondent and two others, VA and HK, filed their nomination
papers as candidates of the BJP for election to the Punjab Vidhan Sabha
F from the 57, North Ludhiana Assembly Constituency.

At the time of scrutiny of nomination papers the Returning Officer
suo motu raised an objection that BJP had set up more than one candidate
and therefore none could be treated as its candidate. The Respondent then
made an application under s. 36(5) of the Representation of People Act,
G 1951 stating that he was the official BJP candidate and requested for 24
hours time to produce an official confirmation of his candidature. The
Returning Officer refused the request for grant of time and rejected the
nomination papers of the Respondent as well as those of VA and HK. After
the polling, the Appellant, a candidate of the Indian National Congress,
H was declared elected.
470
.,.._

RAKESH KUMAR v. SUNIL KUMAR 471

A Single Judge of the High Court of Punjab and Haryana allowed the A
~ Respondent's election petitioc and set aside the election of the appellant
'/
The High Court held that the Returning Officer erred in declining to give the
Respondent time to meet the objection raised by him suo motu and as such
the order rejecting the nomination papers of the Respondent as well as VA
and HK was illegal and improper. The appellant approached this Court by
way of a statutory appeal. B

Dismissing the appeal, this Court

HELD: 1.1. The refusal to grant an opportunity to the respondent and
rejecting his nomination paper was an arbitrary exercise of the discretion
vested in the Returning Officer. [483-E-F)
c
1.2. 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, rendered the rejection of
the nomination paper of the respondent as both improper and illegal. D
[483-G-H)
'I' 1.3. Since the respondent, had by his written application, 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 E
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. [483-B-D)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8695 of
1997. F

From the Judgment and Order dated 5.11.97 of the Punjab &
Haryana High Court in Election Petition No. 3 of 1997.

P.S. Mishra, Neeraj Kr. Jain, Manish Mohan, Aditya Kr. Choudhary,
G
Vishnu Sharma, Ms. Kirti Sinha, Ms. Anita Mohan, U.S. Prasad for the
Appellant.

" Satya Pal Jain, Naveen Kr. Singh and Randhir Jain for the Respondent.

The Judgment of the Court was delivered by H
472 SUPREME COURT REPORTS (1999] 1 S.C.R.

A DR. A.S. ANAND, CJ. 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,
B 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 :
c
"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
D 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:-
E
Last date for withdrawal of candidate/ 24-1-1997
candidature
Date of polling 7-2-1997
Counting of the ballots 9-2-1997"

F 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 nomina-
G tion 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
H the Election Symbols (Reservation and Allotment) Order, 1968
RAKESH KUMAR v. SUNIL KUMAR [DR. A.S. ANAND, J.] 473

~
. (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,
A
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.
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 B
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 nomina-
tion 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
c
election and, therefor~, 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 D
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 E
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 F
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 G
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 con-
tested and the appellant resisted the same asserting that the nomination
papers of _the respondent as well as of S/Shri Vir Abhimanyu and Harish H
\

414 SUPREME COURT REPORTS [1999] l S.C.R.

A 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 n:o 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:
B
"1. Whether the order of rejection of nomination papers filed by
the petitioner Sunil Kumar was illegal and improper, if so, its
effect? OPP

c 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?
D 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
E was summoned from the District Election Commissioner and on receipt of
the same,. learned counsel for the parties stated before the learned Single
Judge that no other evidence was required to be Jed. They addressed their
arguments on the issues on the basis of the summoned record.

F 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.
G 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·
"
H Judge, the returned candidate has filed this statutory appeal.
RAKESHKUMAR v. SUNILKUMAR [ DR.A.S.ANAND,J.) 475
-t
~
We have heard Mr. P.S. Mishra, learned senior counsel appearing A
' 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 B
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 :
c
"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 o'clock in the forenoon and three o'clock
in the afternoon, delivered to the Returning Officer at the place
specified in this behalf in the notice issued under Section 31 a D
nomination paper completed in the prescribed form 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 · E
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:
F
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."
G
(emphasis supplied)
"
Relevant provisions of Section 36 of the Act provide :

"36. Scrntiny of nominations. - (1) On the date fixed for the scrutiny
of the nominations under Section 30, the candidates, their election H
476 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 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
B down in Section 33.

xxx xxx xxx

(5) The returning officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of Section 30 and shall
c not allow any adjournment of the proceedings except 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
D 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 foil owing
the date fzxed 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
E his decision accepting or rejecting the same and, if the nomination
paper is rejected, shall record in writing a brief statement of his
reasons for such rejection.

xxx xxx xxx

F (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."
G 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
H has made a declaration to that effect in his nomination paper;
RAKESH KUMAR v. SUNIL KUMAR [DR. AS. ANAND, J.] 477
-1 (b) a notice in writing to that effect has, not later than 3.00 p.m. A
... 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 B
~ 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
c
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 : D
(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 E
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
F
(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 G
..,, 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) H
478 SUPREME COURT REPORTS (1999] 1 S.C.R.

A That in the instant case, the respondent had filed his nomination
paper signed by one proposer only is an admitted case. It 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
B 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
C 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 dne present at the time of scrutiny of nomination papers on behalf
of various candidates including Shri Vir Abhimanyu appears to have raised
D any objection to the respondent's 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,
E 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,
F .57, Ludhiana North,
'Ludhiana.
'·
'Sub: Scrutiny of Nomination paper.

Sir,
G
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 nomina-
H tion paper/papers as B.J.P. candidate.
RAKESH KUMAR v. SUNIL KUMAR [DR. AS. ANAND, J.] 479

- -4 As I am the official Bhartiya J anta Party candidate, so my A
nomination papers be accepted and the symbol reserved for Bhar-
tiya Janta Party be allotted to me. Please give me 24 (twenty four)
hours time for getting official confirmation for record.

Thanking you,
Yours sincerely, B
... Sd/-
(SUNIL KUMAR)"

This application apparently had been filed keeping in view the
provisions of the proviso to Section 36(5) of the Act. c
..,'
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 D

The NoClination 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 E
wherein it lias 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 F
Party.

However on the date of scrutiny it was noticed that his
authorisation does not any where state that the earlier authorisa-
tion has been cancelled. Shri Sunil Mehra has pleaded that since
G
his papers are in order his candidature 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. How-
ever I am unable to agree with this contention. H
480 SUPREME COURT REPORTS [1999) 1 S.C.R.
..
,
';..
;. A The Representation of People Act, 1996 has been amended as
pc;:r 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
B 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
c 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
D 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
E 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 inde-
pendent then ten proposers are required. The political 'parties has
F to decide before scrutiny of the Nominations as to which it is
sponsoring. It cannot be given further time to change such
authorisation after scmtiny.

Hence the contention of Shri Sunil Kumar that party be given
G time till date of withdrawal is not valid. Hence I am duty bound
to decide the matter today itself.

Accordingly I have scrutinised the nomim.tion papers of Sunil
.. .,
Kumar and also Vir Abhimanyu. Since the party has submitted
authorisation in respect of both these candidates as main can-
H didates and no authorisation mention the cancellation of the other
RAKESH KUMAR v. SUNIL KUMAR [DR. A.S. ANAND, J.] 481

authorisation. I have to reach the conclusion that the party has set A
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.
B
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 Sci/- Daljit Singh,
Returning Officer, c
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 D
filed by the candidates. Aftet the amendment, the nomination of a can-
didate 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 E
constituency, as proposers, where the candidate has been set up either by
an 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.
F
The returning officer rejected the nomination paper of the respon-
dent, 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 G
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 H
482 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 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 instruc-
tions 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
B 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 en-
quiry. The argument over looks the proviso to Section 36(5) of the Act as
C 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
D 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
E 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.

p 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
G respondent of being the official candidate ofBJP, 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 respon-
H dent had sought an opportunity to meet the objection, but even if he had
RAKESH KUMAR v. SUNIL KUMAR [DR. A.S. ANAND, J.) 483

not sought such an opportunity, the returning officer ought to have granted A
-f him time to meet the 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 B
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 C
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 D
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 E
judicially exercised. The refusal to grant an opportunity to the returned
candidate (respondent) 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 F
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 G
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 H
484 SUPREME COURT REPORTS [1999] 1 S.C.R.

A 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 b~:.atf 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
B 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
C 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 and illegally
rejected, thereby rendering the election of the returned candidate as void.
The impugned order, thus, suffers from neither a jurisdictional defect nor
D any other error whatsoever.
I~ 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
Abhimariyu and Harish Kumar as the Election Petition was bound to
succeed for the improper and illegal rejection of the nomination paper of
E respondent, Sunil Kumar itself.

This appeal consequently has no merits and is dismissed with costs.
Counsel fee Rs.7,000/-

U.R. Appeal dismissed.

J