S.K. Lodha, J.
1. This is a petition under 80 and 81 of the Representation of the People Act, 1951 (No. XLIII of 1951)(for short 'the Act' herein) filed by Shri Shrilal Janva, challenging the election of respondent Shri Udai Ram Dhakad to Rajasthan Legislative Assembly from Badi Sadri Constituency.
2. The result of the election was declared on June 1, 1980 and the respondent was declared elected as having secured the highest number of votes Petitioner Shrilal Janva has questioned the election of the respondent on the ground that the Returning Officer of Badi Sadri Constituency wrongly rejected his (petitioner's) nomination paper. The petitioner has prayed that the election of the respondent may be declared void.
3. A Notification under Section 15 of the Act calling the electors of Badi Sadri Constituency to elect a representative, was issued. The Election Commissioner of India, by Notification dated April 27, 1980. issued a programme of election. According to that, the nomination papers were to be filed from April 27, 1980 to May 2. 1980 and the poll was to take place on May 28, 1980. In pursuance of the Notification, it is alleged, that the petitioner and 19 others, filed their nomination papers. The case of the petitioner is that he appeared before the Returning Officer (Sub-Divisional Officer, Nimbehara) at 2.45 p.m. on May 2, 1980 and delivered his nomination paper duly filed and completed in the prescribed form and signed by him as Candidate and by Shri Rajendra Kumar Porwal, elector of the constituency as proposor in person at the specified place with the amount of Rs. 250/- in cash as deposit. The Returning Officer did not accept the nomination paper and the amount and asked him to submit an application and obtain order from him for depositing the amount of Rs. 250/- with the Nazir. He submitted an application Ex. 2 on which the Returning Officer passed an order and below his signatures put the date 2nd May, 1980. In the application (Ex. 2) below the signatures of the Returning Officer, time mentioned is 2.56 p.m., whereas, the case of the petitioner is that he did not note any time under his signatures at that time. The, petitioner deposited amount at 2.56 p.m. with the Nazir, who was sitting in a room adjacent to the room, in which the Returning Officer was sitting and obtained the Receipt No. 82/182938. Thereafter, the petitioner presented himself before the Returning Officer at 2.57 p.m. to accept his nomination paper, which he had already filed before him. The nomination paper was not accepted by the Returning Officer. The Returning Officer instead, asked the petitioner to go out of his room as he was going to administer oath to the candidates. The petitioner went out of his room in the hope that the Returning Officer would accept his nomination paper and call him for taking oath. When the Returning Officer did not call him and administered oath to the other candidates, the petitioner again approached the Returning Officer to accept his nomination paper and administer oath to him. As the request of the petitioner was not heeded to, the petitioner submitted an application Ex. 1, in which it was stated that he had filed his nomination paper at 2.45 p.m. and that he had deposited the amount at 2.56 p.m. and so his nomination paper should be considered to have been filed within time and it should be accepted. Since the nomination paper of the petitioner was not accepted by the Returning Officer, there was no question for him to attend the scrutiny, scheduled to be held before the Returning Officer on May 3, 1980. The Returning Officer rejected the petitioner s nomination paper on May 3, 1980. As the respondent was declared elected, the petitioner filed election petition on July 16, 1980 on the ground that the rejection of the nomination paper of the petitioner by the Returning Officer was illegal.
4. The respondent filed the written statement contesting the election petition on September 20, 1980. It has been stated in the reply that the petitioner neither appeared before the Returning Officer nor delivered the nomination paper complete in all respects at 2.45 p.m. on May 2, 1980. It was denied that the amount of Rs. 250/- in cash was tendered to the Returning Officer by the petitioner. On the basis of the endorsement made on the nomination paper (Ex. 3), it was stated that the petitioner appeared before the Returning Officer at 3.03 p.m. on May, 2, 1980 and that he did not deliver the nomination paper to the Returning Officer and simply left it on the table of the Returning Officer without delivering the same to him and obtaining a proper receipt as prescribed. The application Ex. 1 is said to have been presented by the petitioner before the Returning Officer at 4.30 p.m. on May 2, 1980 and the Returning Officer passed necessary orders that application recording the true facts. In substance, the election petition is contested on the ground that the nomination paper was rightly rejected by the Returning Officer as the petitioner had failed comply with the provisions of Sections 33 and 34 pf the Act. An objection was also raised that in the absence of the Returning Officer as a party, the election petition cannot be tried as non-joinder of the Returning Officer is fatal and the petition should be rejected.
5. A rejoinder was filed by the petitioner on October 7, 1980 reiterating the facts stated in the election petition.
6. The parties recorded admission and denial of documents on October 10, 1980.
7. The following issues were framed on that day:
(1) Whether the nomination paper of the petitioner was wrongly rejected?
(2) Whether the Returning Officer is a necessary party to the present election petition?
8. Issue No. 2 was decided on December 5, 1980. It was held that even on the allegations made against the Returning Officer, he is not a necessary party and it cannot be said that because of his non-joinder as respondent to the election petition, it suffers from the defect of non-joinder of necessary party.
9. In support of issue No. 1, the petitioner Shrilal Janva has examined himself as PW 1 on April 22, 1981 and April 23, 1981. No other evidence has been produced.
10. Civil Appeal No. 3164 of 1981 Shrilal v. Udai Ram Dhokad against the order dated Feb. 20, 1981 was filed and dismissed by the Supreme Court on October 5, 1983. In rebuttal, no evidence of the respondent has been recorded.
11. I have heard Mr. L.R. Mehta, learned Counsel for the petitioner and Mr. R.C. Maheshwari, learned Counsel for the respondent and have carefully considered the record.
12. Now, I proceed to decide issue No. 1. The only question is whether the nomination paper of the petitioner was wrongly rejected by the Returning Officer. The burden of proving this issue lies on the petitioner. The relevant averments in this connection are contained in paras 5 to Hand 14 to 16 of the Election Petition. On the basis of the facts stated in these paras, the petitioner has stated in para 17 that the Returning Officer has wrongly rejected the nomination paper, though it was filed much before 3.00 p.m. and had also submitted the receipt showing the deposit of Rs. 250/-with the Nazir at about 2.56 on May, 2,1980. It was submitted on behalf of the petitioner that the nomination paper was delivered with the amount to the Returning Officer at 2 45 p.m. on May 2, 1980 but the Returning Officer asked the petitioner to move an application for depositing the amount that thereafter, the petitioner submitted an application Ex. 2; that the Returning Officer passed order for deposit at 2.50 p.m.; that at that time, was not noted below the signatures of the Returning Officer; that even taking the time as noted by the Returning Officer below his signatures as 2.56 p.m. to be correct, the petitioner deposited the amount with the Nazir, who was sitting in a room adjacent to the room, where the Returning Officer was sitting and deposited the amount and obtained the receipt from him and, thereafter, re-presented the nomination paper at about 2.57 p.m. for accepting it. According to the learned Counsel for the petitioner, the nomination paper was delivered in time as laid down in Section 33 of the Act, inasmuch as it was delivered between the house of IT Clock in the forenoon and 3 O'Clock in the afternoon of May 2, 1980. Learned Counsel submitted that the nomination paper was presented on 2.45 p.m. on May 2, 1980 and the Returning Officer should not have directed him to file application and obtain an order for depositing the amount, as he was bound to accept the nomination paper when it was presented with the amount of Rs. 250/-. The case of the respondent in this regard is that the nomination paper was not presented before the Returning Officer as alleged by the petitioner. The petitioner submitted an application for depositing the amount at 2.56 p.m. on May 2, 1980; that he did not deliver the nomination paper with the application; that he obtained the order for depositing the amount at 2.56 p.m. and that the nomination paper was not delivered by 3.00 p.m. on May 2, 1980. Both the learned Counsel referred to the statement of PW 1 Shrilal Janva and the applications Ex. 1 and Ex. 2 dated May 2, 1980 and the nomination paper Ex. 3, in support of their respective submissions.
13. Section 33 of the Act deals with presentation of nomination paper and requirements for a valid nomination. Material portion of Section 33 is as follows:
(1). 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 deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed in the presribed form and by on elector of the constituency as proposer.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidates and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls.
Section 34 of the Act deals with deposits. It is as under:
34. Deposits : (1) A candidate not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited-
(a) in the case of election from a Parliamentary constituency, a sum of five hundred rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe a sum of two hundred and fifty rupees; and
(b) in the case of an election from an Assembly or Council constituency, a sum of two hundred and fifty rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe a sum of one hundred and twenty-five rupees:
Provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than deposit shall be required of him under this sub-section.
(2) Any sum required td be deposited under Sub-section (1) shall not be deemed td have been deposited under that sub-section unless at the time of delivery of the nomination paper under Sub-section (1) or, as the case may be, Sub-section (1) of Section 33, the candidate has either-deposited or caused to be deposited that sum with the returning officer in cash or enclosed With the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury.
14. Section 36 deals with scrutiny of nomination paper. Sub-sections (2), (4) and (6) of Section 36 are as follows:
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:
(a) ...(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34;
(c) ...(6) The returning Officer shall endorse on a each nomination paper 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.
15. A reading of the aforesaid provisions shows that the nomination paper is to be delivered between 11 O'Clock in the forenoon and 3 O'Clock in the afternoon and if it is presented after 3 p.m., it can be rejected under Section 36(2)(d) of the Act. The petitioner, in his statement, has stated that he filed the nomination paper on May 2, 1982 at 2.45 p.m. before the Returning Officer (the Sub-Divisional Officer, Nimbahera). The nomination paper was complete in all respects and he tendered security amount of Rs. 250/- along with the nomination paper. Ex. 2 is the application, which the petitioner had submitted to the Returing Officer. In this application, it has not been stated by the petitioner that the application for passing an order for depositing the amount of Rs. 250/- is being submitted as he was asked by the Returing Officer, though he had presented the nomination paper with the amount to him at that time, but he told him that he should first move an application and obtain an order for depositing the amount. The time mentioned below the signatures is 2.56 p.m. The case of the petitioner is that this time was not mentioned in the application when it was submitted but it was subsequently mentioned. It may be stated that when the nomination paper is presented a little befoie the expiry of the time fixed, there in nothing wrong to note the time. The petitioner has stated that the receipt was issued to him by Nazir at 2.56 p.m. and, thereafter, he went to the Returning Officer a to enclose the receipt the nomination paper, which he had left on the table of the Returning Officer and represented it before him at 2.56 p.m. But, even at that time, the Returning Officer asked him to go outside the room and that he would be called. He was not called by the Returning Officer though it was going to be 3.00 p.m. Therefore, he re-entered the room of the Returing Officer and told him that he had neither issued the receipt for his nomination paper not did he call him for taking oath. The Returning Officer told him that he was not going to receive his nomination paper because it was already 3.00 p.m. Thereafter, he said to have submitted application Ex. 1. In that application, he is stated that for filing nomination paper for Badi Sadri Constituency No. 126, he appeared before the Returning Officer at 2.45 and submitted an application for depositing the amount which was deposited at 2.56 p.m. In that application, it was stated as under:
vr% esjk izkFkZuk Ik= ukekdau Ik= le;kof/k 3-00 cts ds vUrZxr ekuk tkdj Lohdkj djok;k tkos A
16. Thereafter, the Returning Officer asked the Nazir to produce the application filed by the petitioner before him. Under his signatures, the time mentioned is 4.30 p.m. The Nazir submitted the application along with the report on that very day. The Returning Officer has recorded the following order on the application Ex. 1:
fjiskZV dk vyksdu fd;k A izkFkhZ us jde tek djkus gsrq izk-Ik- 2-56 ij is'k fd;k A izk-Ik- ds lkFk uke funsZ'ku Ik= is'k ugh fd;k x;k A izk-Ik- 4-30 ij is'k fd;k x;k gS ftl ij dksbZ fopkj dh vko';drk ugh le>h tkrh gS A dkj.k fd uke funsZ'ku is'k djus dk le; nksigj 3 cts nksigj rd gh Fkk A izkFkhZ Loa; vius izkFkZuk Ik= es ;g vafdr fd;k gS fd pwfd jk'kh 2-56ih-,e- ij tek dh x;h A vr% ukekadu Ik= 3 cts dh le;kof/k ds vUrZxr gh ekuk tkuk pkfg, A jkf'k 2-56ih-,e- ij tek djk;h x;h ,slk izkFkhZ ekurk gS fdUrq 2-56ih-,e- ij jkf'k tek ugh djk;h x;h A vfirq 3-56ih-,e- ij rks jkf'k tek djkus gsrq vkns'k izkIr fd;k x;k tc vkns'k gh 2-56ih-,e- ij fy;k x;k gks rks le> ds ckgj gS fd fdl izdkj izkFkhZ us 2-56 ih-,e- ij tek djk yh gksxh A lkFk gh 2-56 ih-,e- ij jkf'k tek djkuk eku Hkh yks rks Hkh mlh v/kkj ij uke funsZ'k Ik= dks le;kof/k 3-00 ih-,e- ds vUrZxr ugh ekuk tk ldrk A izkFkhZ dks 3-00 ih-,e- ds iwoZ uke funsZ'k Ik= is'k djuk pkfg, Fkk A tks ugh fd;k x;k gS vr% vc bl izkFkZuki= ij dskbZ fopkj lEHko ugh gS A izkFkhZ uke funsZ'ki= tks fd esjh Vsfcy ij NksMs pyk x;k Fkk ml ij uksV Hkh fy[kk x;k gS A
izk- Ik- fujLr fd;k tkrk gS A fjdkMZ ij jgs A
It was subsequently recorded by the Returning Officer that the nomination paper was not filed before 3.00 p.m. and, therefore, the application Ex. 2 cannot be considered. It is also significant to note that it has been mentioned by the Returning Officer that the petitioner had left the nomination paper on his table on which a note was also written, Ex. 3 is the nomination paper, which contains the following endorsement:
;g uke funsZ'ki= Jht.kkok us 3-03 ih-,e- ij is'k fd;k x;k A pwfd uksfeus'ku is'k djus dh vafre frfFk fnukWd 2&5&80 ds rhu cts nksigj rd Fkh vr% vH;FkhZ dks crk;k fd uksehus'ku Ik= le; ij is'k ugh gksus ls uksehus'ku Ik= Submitting ds le; fopkj fd;k tk ldsxk A vH;FkhZ ds uke funzsZ'k Ik= is'k djrs le; jk; nh ,e lwfpr fd;k x;k fd 3-03 ih-,e- gks pqds gS fd vr% vc is'k djus dk vkSfpR; ugh gS vH;FkhZ us Hkh ekuk fd mldh ?kM+h es 3-03 ih-,e- gks pqds gS fdUrq dgk fd ?kM+h vkxs Hkh gks ldrh gS A nsj ls vkus dk dkj.k cl nsj ls vkuk crkrs gq, vH;FkhZ O;FkZ es cgl djus yxk rc mls 'kkarfpr gksus ,oa cgl u djus dh fgnk;r nh x;h A tc vH;FkhZ dks nsj ls vkus lEcU/kh lwfpr fd;k tk jgk Fkk A ml oDr Jh oa'khyky ,oa Jh fpeu dqekj lksekuh 'kiFk xzg.k djus gsrq mifLFkr Fks Atc izkFkhZ&vH;FkhZ cgl djrk jgk rks mls ckgj tkus gsrq dgk x;k vH;FkhZ uke funsZ'kd Ik= dk;Zky; es fnukad 3&5&70 dks 11 cts is'k gks A
Jh Jhyky t.kok uke funsZ'kd Ik= is'k gqvk A Jhyky t.kkok uk-Ik= 3-03 ij mifLFkr gqvk A vr% mUgs ;g le>k;k x;k Fkk fd pwfd&&
Under the provisions of law.
3cts ih-,e- ds ckn ukaedu Ik= is'k djus dh vkSfpR; ugh gS fQj Hkh Jhyky tk.kkok uk-Ik- Vsfcy ij NksM+dj pys x;s A pwfd uk-Ik- 3ih-,e- ds ckn is'k gqvk gS ,e is'k Hkh Proper way es ugh gqvkk gS Jh t.kkok flQZ Vsfcy ij NksM pys x;s ,slh ifjfLFkfr es ;g uke funasZ'ki= fopkj ;skX; ugh le>k tkdj fujLr fd;k tkrk gS A
It is clear that the nomination paper was presented at 3.03 p.m. and there was no delivery of the nomination paper as such to the Returning Officer, but it was left on his table.
Form 28 is proforma of nomination paper
Following is the relevant in the prescribed proforma:
(To be filled by the Returning Officer)
Serial No. of nomination paper....
This nomination was delivered to me at my office at ...(hour) on....
Decision of Returning Officer accepting or
rejecting the nomination paper
I have examined this nominatinn paper in accordance with Section 36 of the Representation of the People Act, 1951, and decide as follows:
Receipt for Nomination paper and
Notice of Scrutiny
(To be handed over to the person presenting the
Serial No. of nomination paper...
The nomination paper of...a candidate for election from the...assembly constituency was delivered to me at my office at...(hours) on...(date by the candidate proposer. All nomination papers will be taken up for scrutiny at...(hours) on...(date) at...(place).
According to this, a receipt is to be handed over by the Returning Officer. This form has been prescribed under Rule 4 of the Conduct of Election Rules, 1961, which is as follows:
4. Nomination paper.-Every nomination paper presented under Sub-section (1) of Section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate:
Provided that a failure to complete or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of Sub-section (4) of Section 36.
Had the nomination paper been filed by the petitioner before 3.00 p.m. on May 2, 1980, he would have been given the receipt and he should have also obtained the same. The petitioner has stated that he knew that receipt was to be obtained on filing the nomination paper and that he did not obtain any receipt of the nomination paper as it was not given to him. In the cross-examination, he has stated that he asked for the receipt at the time of the delivery of the nomination paper Ex. 3 and that he demanded the receipt from the Returning Officer at 2.57 p.m. It has been admitted by him that the Returning Officer Chandra Prakash Vyas is neither on inimical terms with him nor did he bear any grudge against him at the relevant time. Shri Chandra Prakash Vyas WBS cited as a witness on behalf of the petitioner as well as on behalf of the respondent, but he could not be examined by any of the ponies.
17. Returning Officer is appointed under Section 21 of the Act and Section 24 deals with General Duty of the Returning Officer. under Section 33, the nomination paper is to be delivered to the Returning Officer. under Section 33(5) the Returning Officer has to satisfy himself as provided in Sub-section (5) of Section 33. under Section 36, the Returning Officer, inter alia, has to examine the nomination paper, and decide all objections, which may be made to any nomination paper and reject any nomination on the grounds narrated therein. The acts of the Returning Officer under the Act are of official nature and a presumption arises in favour of their due execution. In 'A Selection of Legal Maxime' by Herbert Broom, 1939 Edition at page 642, it is stated as under:
In these cases the ordinary rule is omnia presumuntur rite at solenniter eese acts donee probetur in contrarium, every thing is presumed to be rightly and duly performed until the contrary is shown The following may be mentioned and general presumptions of law illustrating this maxim: That a man, in fact acting in a public capacity, was properly appointed and is duly authorised so to act; that in the absence of proof to the contrary, credit 'should be given to public officers who have acted prima facie, within the limits of their authority, for having done so with honesty and discretion.
In view of the fact that the Returning Gfficer, as admitted by the petitioner, did not bear any grudge against the petitioner at the relevant time and was not on inimical terms with him it has to be presumed that whatever he was done so with honesty and discretion.
18. I have carefully looked into the statement of the petitioner Shrilal Janva (PW 1) in the light of the applications (Ex. 1 and Ex. 2) and the nominalion paper Ex. 3. The statement of the petitioner in regard to the obtaining of the receipt of nomination paper is inconsistent inasmuch as at one place, he has stated in the cross-examination that he did not obtain any receipt of the nomination paper as it was not given to him and that he was knowing that the receipt was to be obtained after delivering the nomination paper, while on the next date, when the cross-examination was resumed, he stated that he did not ask for the receipt of the nomination paper at the time of delivery of the nomination paper Ex. 3 and in the second breath, he stated that he demanded the receipt from the Returning Officer at 2.57 p.m. A question was also put to him to explain as to why he did not mention the fact that the application (Ex. 1) was presented at 3.03 p m. and not. at 4.30 p m. as mentioned in the endorsement C to D made on the application Ex. 1 in para 11 of the petition or any where also in it. To this, he stated that this was not so stated in the election petition because 'Dhyan Nahin Raha' and that this has already been stated by him in the rejoinder. He has denied the various endorsements made on the nomination paper Ex. 3. My attention was also drawn to that part of the statement of the petitioner, by the learned Counsel for the respondent, wherein the petitioner has stated that he was not knowing whether Bridi Chand Jain was President of Bhartiya Janta Party and soon thereafter he stated that Shri Birdi Chand Jain is President of the unit of the Bhartiya Janta Party and that he started practising with Shri Birdhi Chand Jain. In view of the infirmities pointed out in the statement of the petitioner, his statement is not sufficient to rebut the correctness of the endorsements made by the Returning Officer on the applications Ex. 1 and Ex. 2 and also on the nomination paper Ex. 3.
19. Section 33(1) of the Act provides that the nomination paper is to be delivered to the Returning Officer in the prescribed form in the time fixed. The question is whether the nomination paper Ex. 3 was delivered before 3.0'Clock in the afternoon on May 2, 1982.
20. The petitioner in his statement has stated that after at 2.56 p.m., he went to the Returning Officer enclosing the receipt of the nomination paper which he had already left on the table of the Returning Officer and re-presented it before him at 2.57 p.m. The Returning Officer has endorsed on the application Ex. 1 that the petitioner left the nomination paper on his table and, therefore, a note A to B was appended on it, which, inter alia, recites that the nomination paper was left by the petitioner on his table and it would be scrutinized on May 3, 1980, a date fixed for scrutiny. In these circumstances, this cannot be characterized as a delivery of the nomination paper to the Returning Officer under Section 33 of the Act. In a somewhat similar case, with one on hand, their Lordships of Supreme Court in Harjit Singh v. S. Umrao Singh AIR 1980 SC 702 agreed with the trial court that the non-production of the receipt by the petitioner was rightly taken as circumstances against him and held that the nomination paper was filed after the expiry of the time prescribed for filing it. Their Lordships observed as under:
It is, therefore, the requirement of that sub-section that, inter alia, the nomination paper shall be delivered to the Returning Officer between the hours of eleven o'clock in the forenoon and three o' clock in the afternoon, so that a nomination paper delivered after three o' clock in the afternoon cannot be said to comply with that provision of Section 33. Sub-section (2) of Section 36 of the Act, which provides for the examination of the nomination papers for the purpose of deciding all objections made to any nomination, requires that the Returning Officer shall reject any nomination paper on the grounds mentioned in the sub-section.
Their Lordships further observed:
We have considered the argument that such a defect was not of a substantial character within the meaning of Sub-section (4) of Section 36 of the Act, but we are unable to uphold it in the face of the clear requirement of ground (b) of Sub-section (2) of Section 36, referred to above, it has to be appreciated that any other view would make the requirement for the presentation of nomination paper before the last date for making nominal ions, and within the specified period of time, unworkable for it will not then be possible to draw a linr upto which the delay in the delivery of the nomination papers could be condoned. In fact if the requirement of the law in that respect is not observed, and its breach is considered to be a defect which was not of a substantial character it may be permissible to go to the extent of arguing that the nomination paper may be filed even upto the date and the time fixed for the scrutiny of the nominations. That would not only cause administrative inconvenience, but put the other candidate to a serious disadvantage for they would not be able to prepare themselves for any objection they may like to raise to the validity of the nomination at the time of the nominations. We have no hesitation therefore in taking the view that the failure to comply with the requirement that the nomination papers shall be delivered between the hours of eleven o'clock in the forenoon and three o'clock in the after noon is mandatory and the Returning Officer was justified in rejecting the nomination paper in question because of its breach.
The position that emerges from the discussion made hereinabove is that the nomination paper was not filed by the petitioner in accordance with Section 33 of the Act before the time prescribed for filing it, i.e. 3.00 p.m. on may I 2,1980. In view of this, there was no option for the Returning Officer, but to reject it under Section 36(2)(d) of the Act for failure to comply with Section 33(1) of the Act.
21. The petitioner has not been successful in proving that the nomination paper was wrongly rejected by the Returning Officer. Issue No. 1 is, therefore, decided against the petitioner.
22. The election petition is, accordingly, dismissed. The petitioner shall pay Rs. 1000/- as costs to the respondent.
23. Let this order be communicated, as envisaged by Section 103 of the Act.