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PETITIONER: NARENDER SINGH

       Vs.

RESPONDENT: MALA RAM & ANR.

DATE OF JUDGMENT:       15/09/1999

BENCH: S.R.Babu, R.C.Lahoti

JUDGMENT:

RAJENDRA BABU, J.  :

     Election  to the Haryana Legislative Assembly was held on  April 27, 1996 and the appellant before us  [hereinafter referred  to as the returned candidate] was elected to the Legislative   Assembly  from  No.89,   Ateli  Vidhan   Sabha Constituency.  On notification for election being issued, 88 nomination  papers  were filed.  The returned candidate  was sponsored  by the Indian National Congress.  At the time  of scrutiny  some of the nomination papers were rejected by the Returning  Officer on the ground that oath or affirmation as contemplated  under Article 173 of the Constitution had  not been  taken either before the Returning Officer or any other competent  authority and, therefore, their nomination papers were   invalid.   Ultimately  after   withdrawal  of   their candidature  47  candidates  remained to  be  elected.   The returned  candidate  secured 22144 votes while  his  nearest rival, Om Prakash, secured 19270 votes and the appellant was declared elected.  Om Prakash, the defeated candidate, filed election  petition  No.6/96  on the ground  that  nomination papers  of Suresh Kumar and Yogender amongst others had been improperly  rejected.  Mala Ram filed election petition  No. 5/96   contending  that  his   nomination  papers  had  been improperly  rejected.  In these cases, contention put  forth was  that Yogender, Suresh Kumar and Mala Ram had taken oath or  affirmation  as  contemplated under Article 173  of  the Constitution  but  the Returning Officer asked each  one  of them  to take the receipt later and that he refused to  give the  receipt  on the same day of taking oath on  the  ground that  he  was  busy and on the next day  after  scrutiny  he rejected the nomination papers as aforesaid.

     The  returned  candidate  raised  several  preliminary objections in both election petitions Nos.  5 and 6/96.  The learned  Judge  by an order made on November 20,  1996  held that  the  allegations would not amount to corrupt  practice and, therefore, even if the petitions had not been supported by  an  affidavit the petition must be deemed to  have  been properly  filed.   In election petition No.   5/96,  similar preliminary objection has been raised but the High Court did not  give any decision probably in view of its earlier order in  election petition No.  6/96.  The High Court allowed the election  petitions  filed by the respondents and held  that the  nomination  papers filed by Mala Ram, Suresh Kumar  and Yogender  have been improperly rejected and, therefore,  the election  of the returned candidate is void and liable to be

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the  set aside.  Hence two appeals are filed by the returned candidate.   The  Returning  Officer has  also  preferred  a special leave petition challenging certain observations made and findings recorded against him and this Court by an order made  on  December 8, 1997 has directed to tag on  the  said special leave petition to the civil appeals preferred by the returned candidate.

     The  preliminary  objections  raised before  the  High Court  is  that Section 83(1) of the Representation  of  the People  Act,  1951 [for short the 1951 Act] provides  that where  the  petitioner  alleges  any  corrupt  practice  the petition  shall  also be accompanied by an affidavit in  the prescribed  form in support of such corrupt practice and the particulars  thereof.  In this case it was alleged that  the election  petitioner had made certain allegations of corrupt practice  and  the  same  having not been  supported  by  an affidavit  the petition cannot go to trial.  The allegations in  this regard are contained in paragraph 4 of the election petition and for purpose of convenience, we will set out the entire paragraph 4 of the petition which is as under :

     4.    That  Shri  Vineet  K.   Garg,  Addl.    Deputy Commissioner, Narnaul was appointed as Returning Officer for 89  Ateli  Assembly constituency.  Shri Vineet K.  Garg  was favourably inclined towards the Congress candidate i.e.  the respondent.   We wanted to help the Congress candidate  even going  out of the way and he did help the Congress candidate i.e.   the  respondent  and acted in a  most  arbitrary  and whimsical  manner  at the behest of the  Congress  candidate i.e.   respondent  and  he was in collusion  with  him.   He illegally  and  properly rejected the nomination  papers  of S/Shri  Suresh  Kumar  son of Sh.  Tara Chand,  resident  of Katkhai,  Tehsil Narnaul, District Mohindergarh and Yogender son  of  Shri  Sher Singh, resident of Ratta  Kalan,  Tehsil Narnaul  District Mohindergarh at the behest of the Congress candidate  i.e.   respondent as Shri Suresh Kumar belong  to Scheduled  Caste and the Congress candidate i.e.  respondent was  of the view that all the Scheduled Castes are with  the Congress  party  in  Haryana  (rather  the  Indian  National Congress  party  as  a whole was considering  the  Scheduled Castes  as their definite vote bank) and he was  considering that  in case Suresh Kumar contests the election he will get a  large  number  of Scheduled Caste votes  and  that  would damage  his  chances  in  election, he  prevailed  upon  the Returning  Officer  Shri  Vineet  K.    Garg  and  got   his nomination paper rejected in a most unwarranted manner which will  be  spelt  out  in the later part  of  this  petition. Similarly,  he got the nomination paper of Shri Yogender son of  Shri  Sher Singh rejected illegally and  improperly  for non-existent  and fabricated reasons as Shri Yogender was  a strong  contender for the Bahujan Samaj Party ticket and was sure to get the ticket and was most suitable, formidable and popular  candidate  amongst  the  other  contenders  of  the Bahujan Samaj Party.

     In  paragraphs 5 to 11 of the petition, the petitioner repeatedly  alleged that the Returning Officer at the behest of the returned candidate improperly rejected the nomination papers  of Suresh Kumar and Yogender.  On the basis of these allegations  the  election  of the  returned  candidate  was challenged and according to the election petitioner the same was  liable to be set aside as the nomination papers of  the aforesaid  two  persons had been improperly  rejected.   The

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preliminary  objection  raised  was to the effect  that  the allegations  of collusion between the returned candidate and the  Returning Officer in rejecting the nomination papers of Suresh  Kumar and Yogender would amount to an allegation  of corrupt  practice as defined in Section 123(2) to (7) of the 1951 Act and since these allegations are not supported by an affidavit  the election petition is not maintainable and  in any case paragraphs 4 to 11 of the petition are liable to be struck off.

     The  Election Petitioners took the stand that the main thrust  of  the  petition is on improper  rejection  of  the nomination papers of Suresh Kumar, Yogender and Mala Ram and on  improper  acceptance  of the nomination  papers  of  the returned  candidate;  that the election petitioners are  not challenging  the  election of the returned candidate on  the ground  of  his committing any corrupt practice and  it  was further  pleaded that the averments made in paragraphs 4  to 11  of  the  petition  do not satisfy  the  requirements  of corrupt practice as defined in Section 123(2) and (7) of the 1951  Act  and, therefore, there was no need to support  the same with an affidavit.  The learned Judge in the High Court took  the view that it was not necessary for him to  examine whether  the  allegations made in paragraphs 4 to 11 of  the petition  constitute any corrupt practice within the meaning of  Section 123(2) to (7) of the 1951 Act since election  of the returned candidate is not being challenged on the ground of  his having committed any corrupt practice;  that even if there was a collusion between the returned candidate and the Returning Officer the same would neither be tried nor record any finding thereon which can in any way prejudice any party or  person.  In the view of the High Court, the substance of the allegations made in paragraphs 4 to 11 was to the effect that the nomination papers of Suresh Kumar and Yogender were improperly  rejected  and  collusion was alleged only  as  a motive  for  the Returning Officer to reject the  nomination papers  but what was really to be determined was whether the nomination   paper  of  Suresh   Kumar  and  Yogender   were improperly  rejected or not.  If the election petitioner  is successful  in  proving that the nomination papers of  these two  persons were improperly rejected then no other question would  arise  and the petition would succeed.  On the  other hand,  if  he is unable to prove that the nomination  papers were  improperly  rejected  the petitioner would  fail.   In either event the court would not be recording any finding in regard to the commission of any corrupt practice nor has the petitioner   charged  the  returned   candidate   with   the commission  of  any  such  practice.   On  this  basis,  the preliminary objections were overruled.

     Shri  Rajinder  Sacher,  the learned  senior  Advocate appearing  for the returned candidate, submitted that  when, in  fact,  the allegations contained in petition  amount  to corrupt practice affidavit in support thereof was absolutely necessary  and  in  the  absence   of  an  affidavit   these allegations  cannot stand and the same need to be struck off and thus if those allegations were struck off nothing in the petition  remained to be considered and the entire  petition has to be rejected.

     On  a proper construction of the averments made in the course  of the election petition, the High Court  understood the  allegations  only  to  mean that the  election  of  the returned  candidate  was being challenged on the  ground  of improper  rejection  of the nomination papers of  Mala  Ram,

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Suresh  Kumar  and  Yogender or improper acceptance  of  the nomination  papers  of the returned candidate and all  other allegations  were mere embellishments to the same, we do not think  that  the  view  taken  by  the  High  Court  in  the circumstances of the case was not justified or unreasonable. When  the  order  made  clear that no  corrupt  practice  as arising under Section 123(2) to (7) of the 1951 Act would be put  in issue or any trial held thereon all apprehensions of the returned candidates stood allayed.  Therefore, the order made  by the High Court on the preliminary objection  raised by  the  returned  candidate is correct and has  got  to  be upheld.

     According  to the calendar of events nomination papers could  be filed from 27.3.1996 to 3.4.1996.  The case of the election  petitioner  (in E.P.  6/96) was that Suresh  Kumar and  Yogender  personally presented their nomination  papers before  the  Returning Officer on 7.4.96 at 2.13  p.m.   and 2.15 p.m.  respectively and that they made and subscribed to the oath before him at the time of presenting the nomination papers.   It  is also alleged that the nomination papers  of the  returned candidate have been improperly accepted by the Returning  Officer  though he did not make and subscribe  to oath  validly at the time of filing his nomination papers or at  any  other time before scrutiny.  Thus, the crux of  the matter  is  improper acceptance of the nomination papers  of the  returned candidate and whether the same has  materially affected the result of the election in so far as it concerns the  returned  candidate  and   improper  rejection  of  the nomination  papers  of  Suresh Kumar and Yogender.   In  the written statement, the allegation that the nomination papers of Suresh Kumar and Yogender were improperly rejected by the Returning  Officer  is denied.  The returned candidate  also denied  that  he  prevailed upon the  Returning  Officer  to reject  nomination  papers of Suresh Kumar and Yogender  and that  there was any collusion between him and the  Returning Officer.   He  also  pleaded that nomination papers  of  the returned  candidate were properly accepted and he had  taken oath  before the Returning Officer at the time of presenting the papers.

     Two issues have been raised as regards the preliminary objection  which had been considered by us earlier.  Rest of the issues relevant for the present purpose are as follows :

     3.  Whether the nomination papers S/Shri Suresh Kumar and  Yogender  were  improperly rejected  by  the  Returning Officer?  If so, its effect?

     4.   Whether  the  nomination paper  of  the  returned candidate was wrongly accepted by the Returning Officer?  If so, its effect?

     5.  Relief.

     So  far  as  Issue No.  4 is concerned,  it  has  been answered  in favour of the returned candidate and that  part of the order is not impugned by any of the respondents.  The only issue that remains is Issue No.  3.

     On Issue No.  3, oral evidence was adduced and several documents  were  marked.   The Returning  Officer  has  been examined  as R.W.4.  He has narrated the sequence of  events that  took place on the eve of the election held to No.  89,

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Ateli Legislative Assembly in April, 1996.  April3, 1996 was the  last  date for the candidates to file their  nomination papers  and there was a lot of rush for filing those  papers on  that  day.   50-60 nomination paper were filed  on  that date.   26 nomination papers had been filed upto 2.4.96  and 62   nomination  papers  were  filed   on  the  last   date. Nomination paper at S.No.27 was the first one to be filed on 3.4.96.   The Register of nomination papers does not  record the  time at which the nomination papers were filed but  the same  can  be ascertained from the nomination paper  itself. The  time  for filing the nomination papers commenced at  11 a.m.   and nomination papers at S.Nos.  27 to 46 were  filed on 3.4.96 from 11 a.m.  to 1 p.m.  On account of heavy rush, the  Returning  Officer made arrangements in such  a  manner that  the  Assistants  would  also sit  in  his  room.   The nomination  papers would be submitted to the Assistants  for registration in the Register.  After filling up this part of the  nomination paper or the oath form required to be filled by his office, nomination papers were presented to him.  The Assistants  were also verifying the details mentioned in the nomination  papers and the oath forms.  When he received the nomination  papers, he called upon the candidates one by one to  take  the oath and in the meantime he was signing  their nomination  papers and also the oath forms.  Error, if  any, found  in any nomination paper/oath form was brought to  his notice  and the errors were corrected by him.  He used a pen with  green ink on the date when he received the  nomination paper  and the date of the scrutiny.  In respect of some  of the oath forms received by him, he found that the signatures of the candidates were already there.  After giving them the prescribed oath he did not ask such candidates to sign their oath  forms  again.   In  some   cases  he  found  that  the candidates  were  not present when their  nomination  papers were put up to him.  He asked his Assistants to call out the names of the candidates so that they could come and take the oath.   After  the names of the candidates were  called  out some  of  them  turned  up and took the  oath  while  others remained absent and in such cases he noted on the nomination papers  that  the oath had not been taken.  Inasmuch as  the forms  of the absentee candidates had already been filled up by his Assistants, he also recorded the time and date in his order  stating that oath had not been taken on that date and time.  The time and date as was recorded by him in his order was the same which had earlier been filled by his Assistants in  those forms.  In respect of Exh.RW4/1 which is the  oath form  of  Yogender, he had noted that the oath had not  been taken  at  the  time  and  date already  filled  in  by  his Assistants  and  official  seals had been affixed  at  three places  on the form.  At two places marked at A and B on the form  he  had  put his signatures  which  were  subsequently scored off by him.  Exhibit RW4/2 is the nomination paper of Yogender and that form bears his signatures as the Returning Officer.  On the back side of the form he passed an order on 4.4.96.   Some words in the order had been scored off by him at  four  places.  Exhibit PW3/1 is the nomination paper  of Suresh  Kumar  and  the  back side of that  form  bears  his signatures  as  Returning Officer and it also  contained  an order rejecting the nomination paper which was passed by him on  4.4.96.   The scorings in his order at two  places  were done  by him.  Exhibit PW3/2 and RW1/1 were put up to him in the  normal  course  after the Assistants in  his  room  had filled  up  the portions therein which were required  to  be filled up by his office.  Suresh Kumar and Yogender were not present  when their names were called though in the meantime he  had already appended his signatures on their oath forms.

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When  the Assistants called out their names with the help of the  Peon they did not come and did not take oath before him and on the reverse side of Exh.PW3/1 he had made an order on 4.4.96  rejecting  the  nomination  paper  of  Suresh  Kumar because  he had not taken the oath before him at the time of presenting  the nomination paper.  First he wrote the  words rejected Oath not made and put his signatures along with the  date.   Thereafter,  it appears, he  realised  that  he should  pass a speaking order while rejecting the nomination paper.   Then he scored off his signatures and the date  and wrote a complete order.  Similarly, he made similar order by scoring  off  similar phrases in the case of Yogender  also. Exhibit  PW1/4 is an oath form of Mala Ram and that form had already  been  signed by Mala Ram.  When the oath  form  was taken  up by him Mala Ram was not present and the Assistants with  the help of Peon called out his name but Mala Ram  did not  appear.   He  passed  an order on the  oath  form.   On 4.4.96,  Mala  Ram was present in his office at the time  of scrutiny.   He  told  him that he did not take the  oath  on 3.4.96  but he explained to him that that was not the  stage to  take the oath and then he rejected his nomination papers which  Exh.PW1/2  and passed the order on the  reverse  side thereof.   Again  he  made some correction therein  and  the cuttings  thereon are in his hand- writing.  Apart from  the nomination  papers  of Suresh Kumar, Yogender and  Mala  Ram there  were some other nomination papers as well which  were rejected  by him.  Exh.RW 4/3 is the nomination paper of Ram Niwas  son  of  Mahadev.  This form  also  contains  similar writings  and corrections.  He again rejected the nomination paper  of  Chander  Parkash,  Exh.  PW5/1 and  some  of  the corrections  were made in the order and all the  corrections were made by him in the order but those were in the ordinary routine.   No  one  raised  any objection  at  the  time  of scrutiny  regarding rejection of nomination papers of Suresh Kumar and Yogender.

     In the cross-examination, he was unable to state as to which  of the candidates did or did not sign in his presence and  similarly  he was unable to state whether the  returned candidate signed the oath form Exhibit RW1/4 in his presence after  taking the oath and he denied the suggestion that  he did  not take the oath before him.  15 candidates had  filed their  nomination  papers on 3.4.96 from 11 a.m.  to 1  p.m. In  answer to the questions that when he found Suresh  Kumar and  Yogender  were not present to take the oath he did  not issue a memo to them particularly when their residences were 13  to 11 kms.  away from his office and there was time  for them to take the oath till the midnight of 3.4.96, he stated that  it  was essentially for the candidates  themselves  to ensure  to  take  the  oath so as  to  become  eligible  for election.   Memo was required to be handed over in terms  of the  Hand  Book  to the candidates who did  not  take  oath. Since Suresh Kumar and Yogender were not present, memo could not  be  handed over to them.  The nomination papers of  Ram Niwas  son of Mahadev was rejected at the time of  scrutiny. He  did  not produce his proof of age and since  nobody  was present  on his behalf, no memo could be handed over to him. He admitted that Mala Ram had made an application to him for issue  of certified copies of some documents and he  allowed the  same and the documents required by him were supplied to Mala  Ram.   The  Election Commission had  made  an  enquiry whether any memo in writing was issued and Exhibit RW4/7 was the  report of the Peon to the effect that the name of  Mala Ram  was called out to enable him to take the oath and  that report  was put up to him in a routine way and he ordered to

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be placed the same on record.  Exhibit RW 4/8 is a certified copy  of  the nomination paper filed by Mala Ram  which  was supplied  to him.  It was supplied to him on 4.4.96 at  4.17 p.m.   There is no official stamp under his orders.  Exhibit RW4/9  is  an office copy of the certified copy of the  oath form  which  was  supplied to the petitioner.  There  is  no official  seal  under  his orders whereas the  originals  of these  documents  contained official seal under his  orders. He explained that the absence of the seals in the photo copy was  on  account of the fact the certified copies  had  been issued  on  the same day at 4.17 PM and the  official  seals were  affixed on the originals subsequently.  Official seals had been affixed at several specified places even in respect of  those orders which he had passed.  In Exhibit PW ¼,         the oath  form  of Mala Ram his order does not contain the  date below  his signatures.  The same is with respect to the oath forms  of  Suresh Kumar and Yogender and on  the  suggestion that  Suresh  Kumar,  Yogender  and Mala Ram  took  oath  on 3.4.96,  he stated that the orders were passed on 3.4.96  on the  oath  form  and he denied the suggestion  that  he  had passed the order on 4.4.96.

     His  evidence was subjected to severe scrutiny by  the High  Court.   The  High  Court   took  the  view  that  the nomination  papers  of  Suresh  Kumar  was  entered  in  the Register  meant for the purpose at S.No.64 and the Returning Officer  certified  the  same  as presented to  him  by  the candidate   personally   on  3.4.96  at   2.13   p.m.    and consequently  the word proposer had been scored off.   The Returning  Officer  appeared in the witness box as RW-4  and admitted  his  signatures  at  portion  marked  A-1  on  the nomination  paper.  From this certificate, the learned Judge concluded that Suresh Kumar was present in the office of the Returning  Officer on 3.4.96 at 2.13 p.m.  when he filed his nomination  paper.   Suresh  Kumar  appeared  as  PW-3.   He disbelieved  the Returning Officer that he called the  names of Suresh Kumar, Yogender or Mala Ram and all the nomination papers  and oath forms were stamped by the Assistants in the room  of the Returning Officer and Returning Officer  signed the  oath forms of Suresh Kumar and Yogender certifying that they  had taken oath before him.  The High Court noted  that it  was  curious that the Returning Officer who was  signing the  oath form only after the candidates had taken the  oath and  the  statement of the Returning Officer that he  signed their  oath forms in routine though the candidates were  not present  was  palpably wrong and could not be accepted.   He had  stated that while the candidates were being called upon to  take  the  oath,  he was  simultaneously  signing  their nomination  paper  and  oath forms and even if we  take  the statement  of  the Returning Officer at its face  value,  it could  not  be believed that Suresh Kumar and Yogender  were not present when their nomination papers and oath forms were taken  up for examination personally on 3.4.96 at 2.13  p.m. and  2.15  p.m.   respectively.  The Returning  Officer  has signed  their nomination papers and certified that they were presented  by  the candidates personally at 2.13  p.m.   and 2.15  p.m.   If that is so, the fact that the candidate  who was  personally  present at a specified point of time  being absent  at that very time when he was to take the oath could not  be believed.  On that basis, the High Court  castigated the  Returning Officer very severely and observed as follows :

     I  am,  therefore,,  constrained  to  hold  that  the Returning  Officer is not telling the truth and as a  matter

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of  fact  Suresh  Kumar was present and took  the  oath  and thereafter  the Returning Officer also append his signatures on  the  oath form certifying that oath had been taken.   It was  only thereafter that the signatures were scored off  by the  Returning  Officer for reasons best known to  him.   As held  above, Suresh Kumar was present as per the certificate of  the  Returning  Officer himself and to say that  he  was present  but did not take the oath is also not credible.  It is  unfortunate that an office of the rank of an  Additional Deputy  Commissioner tampered with the record by scoring off his  signatures after Suresh Kumar had taken the oath before him  only to prepare the ground for rejecting his nomination paper.   He has interfered in the electoral process and  has played  also  with that of Suresh Kumar who was eligible  to contest.

     Similar  reasoning was adopted by the learned Judge in the  case  of Yogender.  In the case of Mala Ram  there  was much  discussion  as to the time when the nomination  papers were  filed  i.e.   whether at 1.45 p.m.  or 2.18  p.m.   In either  event it would not have very much mattered  inasmuch as the nomination papers could be filed till 3 p.m.  on that date.  The learned Judge ultimately concluded as follows :

     Before  parting  I cannot resist observing  that  the conduct  of  the Returning Officer in the present  case  has been  most reprehensible and cannot but be deprecated.  In a country  like ours where democracy has taken its roots it is not  only the purity of the electoral system which is a must but the officials chosen to man the elections should also be men  of  integrity  who should not play with  the  political fortunes  of candidates but should let them contest if  they are  otherwise  eligible  and allow the people to  have  the representatives of their own choice.  If the system is to be preserved  I am afraid a person like Vineet K.  Garg who was the  Returning  Officer in the present case should  have  no place  in  it.   I am sure that the Election  Commission  of India  will  take  notice of his conduct and  take  whatever action is necessary in accordance with law.

     In  the matter of appreciation of evidence in election disputes  certain principles have been stated by this Court. The  general  principle  is  that  the  onus  to  prove  the essential  facts which constitute the cause of action in  an election  petition is upon the person making it, namely, the election  petitioner.  What evidence would be sufficient  to prove  a  particular fact depends upon the circumstances  of each  case.  When the evidence adduced is capable of drawing an  inference either way, the view that is favourable to the returned  candidate will have to be preferred.  In Ram Singh &  Ors.   V.   Col.   Ram Singh, 1985 Supp.   SCC  611,  the principle  set out by this Court, by majority, is as follows :-

     In  border  line cases, the Courts have to  undertake the onerous task of disengaging the truth from falsehood, to separate the chaff from the grain.  In our opinion, all said and  done,  if  two views are reasonably possible -  one  in favour  of the elected candidate and the other against him - Courts  should  not interfere with the  expensive  electoral

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process and instead of setting at naught the election of the winning  candidate,  should uphold his election  giving  him benefit of doubt.  Thus is more so where allegation of fraud or undue influence is made.

     In election disputes emotions of the public are raised and  opinions  are sharply divided between groups.  In  such circumstances  oral testimony in favour of one or the  other party  is  easy to be adduced but the same will have  to  be critically  examined and, therefore, oral evidence is to  be assessed  with  a  great  deal of care.  In  Rahim  Khan  v. Khurshid  Ahmed,  1975 (1) SCR 643, it was observed by  this Court :-

     We must emphasize the danger of believing at its face value  oral evidence in an election case without the backing of  sure circumstances or indubitable documents.  It must be remembered  that corrupt practices may perhaps be proved  by hiring  half  a dozen witnesses apparently  respectable  and disinterested, to speak to short and simple episodes such as that  a small village meeting took place where the candidate accused  his  rival  of personal vices.  There is  no  X-ray whereby  the dishonesty of the story can be established and, if  the  Courts  were  gullible enough  to  gulp  such  oral versions  and  invalidate  elections, a new  menace  to  our electoral  system  would  have  been  invented  through  the judicial  apparatus.   We regard it as extremely unsafe,  in the  present  climate of Kilkenny-cat election  compensation and  partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt  practice  has been rendered by  some  sanctimonious witnesses.   The  Court  must look  for  serious  assurance, un-lying  circumstances or unimpeachable documents to uphold grave  charges  of corrupt practices which might not  merely cancel  the  election  result, but extinguish many  a  mans public life.

     Again  in Thakur Sen Negi v.  Dev Raj Negi, 1993 Supp. (3) SCC 645, it was observed :-

     It  must  be remembered that in an election  dispute, the  evidence is ordinarily of partisan witnesses rarely  of independent witnesses and, therefore, the Court must be slow in  accepting  oral  evidence unless it is  corroborated  by reliable  and  dependable material.  It must  be  remembered that  the  decision of the ballot not be lightly  interfered with  at  the  behest  of a defeated  candidate  unless  the challenge  is on substantial ground supported by responsible and dependable evidence.

     In  this case the evidence of the Returning Officer is corroborated   by  other  witnesses   on   several   aspects particularly in regard to the procedure adopted by him.  The High  Court  found  that the Assistants were  receiving  the nomination  forms  and were taking to Returning  Officer  in batch  of  7  to 8 forms along with candidates.   After  the nomination  papers  were  checked by the  Returning  Officer candidates were called to take oath and he was signing forms only  after their taking oath.  Departure in case of  Suresh Kumar  and Yogender to sign the nomination forms in  routine manner  is  not accepted.  That circumstance may lead to  an inference  that the Returning Officer had committed  certain

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errors  or mistakes in maintaining the records in his office but it would not lead to the conclusion that he has rejected the nomination papers of Yogender, Suresh Kumar and Mala Ram mala fide.  He appears as witness in the case and admits the writing  or  over-writing/scoring effected on the  different forms  presented to him.  He offered an explanation for  the same  to  the effect that the nomination and oath forms  had been  filled  up  and given to his Assistants who  later  on placed them in groups before him.  He caused calling out the names of those persons who are supposed to appear before him and he would administer oath to them.  It is the case of the respondents that they had presented the nomination papers in proper  order  and oath also had been taken by them  in  the sense that they signed the oath forms.  If they were present in  the  office  of  the Returning Officer at  the  time  of presentation of the nomination forms, it is submitted, there is  no reason to doubt their presence at the time when  they were  called  to  take  oath.   On  this  aspect  also   the explanation  offered by the Returning Officer is that though time  had been noted in the forms actually at the time  when he  called  them they were not available and, therefore,  he had to note that they had not taken the oath on the date and time  noted  therein.   Ultimately what boils down  for  our consideration  in  this case is word against word stated  on oath.   On  the basis of the evidence on record as  analysed above  two  inferences are possible - to accept  either  the version  given by the Returning Officer or that given by the election petitioners and their witnesses.  On the principles in  the matter of appreciation of evidence set out above  in the  three  decisions to which we have adverted to it  would not  be  safe  to upset the election on the  basis  of  such testimony.

     However,   the  learned  counsel  on  behalf  of   the respondents  contended that in this case apart from the oral evidence tendered by the parties there are certain documents which  clearly  clinch  the  matter and  they  are  official documents  and,  therefore,  unimpeachable.    We  fail   to appreciate  this argument.  Documents to which reference  is made  are  either the nomination forms or the oath forms  in respect  of  which  explanation  has  been  offered  by  the Returning  Officer.   If  the  explanation  offered  by  the Returning   Officer  is  accepted   then  the  writings   or over-writings  or corrections made thereto while scoring off certain  words stand explained.  Thus these documents  again do  not tilt the matter one way or the other.  Therefore, we must again notice that there is no clinching material at all in  this case to hold in favour of the election petitioners, as has been done by the High Court.

     Now,   we  shall  advert   to  certain   circumstances appearing in the case which support the view taken by us.

     We  shall first take up the case of Mala Ram.  In  the election petition he has stated that he filed his nomination paper  at  about 1.45 p.m.  on 3-4-1996 which was  the  last date for filing the nomination papers;  that, he remained in the office of the Returning Officer beyond 5.00 p.m.;  that, he  had  taken  oath or affirmation as  required  under  the Constitution  before the Returning Officer who  administered the  oath.   These averments are reiterated in the  evidence tendered  by  him before the Court.  The  Returning  Officer stated  in  his evidence that the said Mala Ram  appears  to have  handed over the nomination papers to the staff and had gone  away.  He did not sign on the said papers as Mala  Ram

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did  not present himself when he was called for the  purpose of  administering  oath to him.  Explanation offered by  the Returning  Officer  is  that 7 to 8 nomination  papers  were collected  together  and  placed  before  him  when  several persons  were standing in his room thinking that the persons who  have  submitted  their nomination papers  were  present before  him  he signed all the nomination and  oath  papers. The petitioner Mala Ram had sent a complaint to the Election Commission  of India.  We may compare the evidence  tendered by  him  with what he has stated in that complaint a  little while  later.   He  had  also   complained  to  the   Deputy Commissioner,  who, according to him, spoke to the Returning Officer.

     The evidence of Mala Ram is that he went to the office of  the Returning Officer with a group of about 5000 persons and  presented  his  nomination   papers  to  the  Returning Officer.   After  obtaining the nomination papers he  filled the  same  and  deposited  the form with the  clerk  of  the Returning  Officer  who took it to the Returning Officer  at about  1.45  p.m.  and the Returning Officer after  checking both the sets of nomination papers filled the time, date and place  of presentation in those papers.  Thus the clear case set  up  by  Mala  Ram  is that  he  himself  presented  the nomination papers at 1.45 p.m.  the Returning Officer filled the  same  in his handwriting recording the time, place  and date  whereas  the  Returning Officer in  his  evidence  has stated  that  Mala Ram had not come and that the date,  time and place had been filled up by some other person and not by him  and  that there is no dispute between the parties  that the  Returning Officer had been using the pen with green ink and  he  was making all the writings in that ink whereas  in the original form the time, date and place is filled in blue ink  and handwritings also appears to be different.  Thus it is  highly  improbable  that Mala Ram could  be  correct  in stating  that the Returning Officer himself had altered  the time  at which he presented the papers although there was an entry  to  the  effect  that   nomination  papers  had  been presented  at 1.45 p.m.  and the same has been corrected  as 2.48  p.m..   It is difficult to accept the case pleaded  by the  election petitioner.  If the version put forth by  Mala Ram  is correct then the writing about time, place and  date could  be  in  green  ink in the writing  of  the  Returning Officer and there is no examination of the Returning Officer on this aspect of the matter when he was in the witness box. After  taking  oath  Mala  Ram claimed  that  the  Returning Officer  asked the clerk sitting by his side to complete the receipt  portion by putting the time, date and place and the official  seal  of  the   Returning  Officer  thereon.   The suggestion  put  forth  by  Mala Ram in the  course  of  his evidence  is that the Returning Officer had duly signed  the nomination  papers and handed over the same to the clerk but it  is clear from the oath form that it did not contain  the signature of the Returning Officer at all.  In so far as the question  of  filling up of the form is concerned, all  that could  be  said is that only date is filled up as 3-4-96  in both the portions .  Mala Ram also stated that in the course of his evidence that serial numbers of his nomination papers at  the time of presentation of his nomination papers on the reverse and both of the forms was not given in his presence. The  procedure adopted by the Returning Officer is spelt out in  the course of his evidence to which we have adverted  to earlier.   On  the presentation of the nomination  papers  a serial  number was entered in the register.  In the case  of Mala  Ram  the two sets of nomination papers  having  serial

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numbers  86 and 87 with the time duly corrected as 2.48 p.m. are  entered.   Thus  it appears to us that  the  nomination papers  were  handed over to the Returning Officer  at  2.48 p.m.   when  the serial numbers were endorsed on reverse  of the  both nomination papers.  This conclusion is  buttressed by  the fact that previous nomination paper at serial number 85 bears the time 2.46 p.m.  whereas later nomination papers of  serial number 88 bears the time 2.55 p.m.  which was the last  nomination  papers  submitted   before  the  Returning Officer.   The evidence of Mala Ram in this regard cannot be stated  to be reliable inasmuch as the Returning Officer had not  filled the time, date and place as contended by him and thus the time stated by him that he presented the nomination papers  and  took oath at 1.45 p.m.  cannot be  accepted  at all.   Mala Ram also stated in the course of his examination that the clerk had filled up the date, place and time in the oath  form and the receipt portion.  However, none of  these papers bear the signature of the Returning Officer.  Thus it cannot  be said that oath had been taken by Mala Ram in  the presence  of the Returning Officer and the Returning Officer had  put  his signature to that effect.  Thus we think  that all that he did was that he handed over the documents in the office  and  the  office  filled up  the  same  before  they corrected  the  time  and handed over it  to  the  Returning Officer who put up his seal on the nomination paper in token of  receiving  the same but on the oath form he did not  put his  signature and noted that the oath had not been taken at 2.48 p.m.  on 3-4-96.

     There is no cross-examination of the Returning Officer with  regard to Deputy Commissioner having spoken to him  on complaint of Mala Ram.

     The  evidence of Mala Ram may be compared with what he had  complained  to the Election Commission (Annexure  P-3). It is stated that the said Mala Ram took his oath by reading oath  form and signed the form and thereafter delivered  the same  to  the  staff.   An affidavit  of  the  advocate  who assisted  and  appeared for Mala Ram at the time of  filling and  submitting nomination and oath form was also stated  to have been attached to the application, but this affidavit is not  forth  coming  in  the evidence in the  case.   In  the complaint made by him the time when he filed the form or the time  at  which  he  took oath are not set out  and  he  had obtained  the copies of the documents in question on  4-4-96 whereas  the  complaint  made by him is on 5-4-96.   He  has alleged  that he made a complaint to the Deputy Commissioner about the manner in which the Returning Officer has rejected his  nomination paper but there is no reference to the  same in  the  course of his complaint.  These circumstances  will clearly  indicate that the said Mala Ram has been making  an attempt for improving the case from stage to stage.

     Now  we  shall deal with the case of Suresh Kumar  and Yogender.   Yogender has not stepped into the witness box at all.   Thus  the presentation of his form or the person  who presented it and whether he had taken the oath or not is not established.   In  the  case of Suresh Kumar  the  Returning Officer  had put his signature to the oath form.  Therefore, it  was  contended  by  the petitioner  that  the  Returning Officer  had  put  his signature after the oath  are  to  be administered but no receipt was given to them because it was not  ready.   It could be seen from the oath form  that  not only  the main part of the form but the receipt part of  the form  also  was  filled  up by the clerical  staff  and  the

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Returning  Officer  had signed both parts of the  oath  form which  had  been later on scored off.  It is clear that  the version  put forth by the Returning Officer is probable that when  7  to 8 nomination papers had been placed  before  him together,  he  went on signing each one of those  forms  and later  on when he realised that the concerned candidate  was not  present  in his office to take oath he scored  off  the same.   If really the Returning Officer wanted to reject the candidates  nomination form on the basis that oath had  not been taken, he need have signed the receipt part at all only to  score  it  off later.  The evidence discloses  that  the Returning Officer had in a routine manner put his initial on the  oath forms when he checked the identity of the  persons who  were present and found that the concerned persons  were not  present he scored off his initials.  He looked that the clerical  staff had filled up the main part of the oath form and  the  receipt part.  If really the oath had been  taken, there is no reason as to why the receipt on which he has put signature  could  not  have  been  given  to  the  candidate immediately.   It  is also in evidence of some of the  other candidates  whose nominations had been rejected were able to obtain  the  receipt the following day when he went  to  the office  of  the  Returning Officer at about 10.30  a.m.   on 4-4-96  as  on  3-4-96 at 3.45 p.m.  when the  went  to  the office  of  the  Returning  Officer he  was  told  that  the Returning Officer was not available whereas evidence of Mala Ram  is clear that even at 5.00 p.m.  the Returning  Officer was  available  in  the  office.  It is not  as  though  the Returning  Officer  has any animus against Mala Ram,  Suresh Kumar  or  Yogender so as to act mala fide or that there  is any  strong bias in the favour of the returned candidate  to favour  him.   In  the absence of any such  material  it  is difficult  to  state  that  the version  put  forth  by  the Returning  Officer is not worthy of credence.  The criticism made  by  the High Court in appraising the evidence that  he tampered  with the record by scoring off his signature  only with  a view to reject the nomination papers of Yogender and Suresh Kumar or in coming to the conclusion that no credence can be placed on the testimony of Returning Officer and that he  tampered  with  the  record is not borne  out  from  the record.   Therefore, we are of the view that the High  Court was not justified in making these scathing remarks.

     On  the  question  as  to the  attempts  made  by  the Returning  Officer to intimate the candidates of the defects in their forms as required by the instructions issued by the Election  Commission it is stated that he made an attempt to get  the  candidates  in  question  but  as  they  were  not available the same could not be served and that was the date on  which  they filed the nomination papers for  filing  the same.  The next date was for the scrutiny.  Therefore, there was  not  much  time  left for him to  send  any  intimation regarding  the  discrepancies in the nomination  papers  and therefore  much  cannot be made out without same.   In  this state of affairs if we appraise the evidence tendered before the  High  Court  it is difficult to subscribe to  the  view taken  by  the  High  Court  that  if  the  candidates  were available for the purpose of filing of the nomination papers they  could also be available for the purpose of taking oath at  the same time particularly when examined in the light of the procedure adopted by the Returning Officer in presenting the  papers  to  the clerical staff who made  a  preliminary scrutiny   and   thereafter   put  them   up   to   him   in bundles/batches  of  7  to 8 nomination papers  and  he  was calling  out the names of the candidates and thereafter made

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appropriate entries in the register and gave a number to the nomination  form.  This circumstance may indicate that  Mala Ram,  Yogender or Suresh Kumar was present at the time  when clerks  received  the nomination paper but when  the  papers were  placed  before the Returning Officer he found that  at that  time  the  candidate was not available to  take  oath. There  was  definitely a time gap between the time when  the candidates presented the nomination papers to the clerks and thereafter when the Returning Officer called out their names for taking oath.  Looked from that angle that the High Court has  been  unduly critical of the evidence tendered  by  the Returning  Officer in this regard but ought to have accepted his  case and dismissed the election petition as we  propose to  do now.  We allow the appeals by the returned  candidate and  the  election  petition will stand  dismissed  for  the reasons  aforesaid.   However, in the circumstances  of  the case there shall be no order as to costs.

     SLP(C) Nos.  22529-22530 of 1997

     These petitions have now become unnecessary in view of the  order  made by us in Civil Appeal Nos.5776-5777/97  and the same shall stand disposed of accordingly.