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PETITIONER: UMED SINGH RAO

       Vs.

RESPONDENT: MANI RAM GODARA & ORS

DATE OF JUDGMENT08/05/1985

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1985 AIR 1079            1985 SCR  Supl. (1) 614  1985 SCC  Supl.  111     1985 SCALE  (1)934

ACT:      Representation of  the People Act, 1951, ss. 98, 99 and 116A.      Assembly   election-Discrepancy   in   particulars   in nomination papers  of two  candidates-Rejection by Returning Officer-Election challenged-Evidence  of Returning  Officer- High  Court-Stricture   against   Returning   Officer   with direction to share costs-Appeal by Returning Officer-Whether maintainable-High Court’s order-Whether legal and valid.

HEADNOTE:      The appellant,  a Returning  Officer in the by-election to  Fatehabad   Assembly  Constituency   of  Haryana  State, rejected  the  nomination  papers  of  two  candidates.  The election of  the successful  candidate was challenged on the ground that  the nomination papers were improperly rejected. At the trial the successful candidate examined the appellant as R.W.3.  While analysing the evidence of the appellant the High Court  observed that  the two nomination papers were in order when  they  were  filed  and  subsequently  they  were tampered with when they were in the custody of the appellant and, therefore,  his conduct  in either  tampering with  the nomination papers  himself or manipulating the tampering was guided  by   ill-motives.  Consequently,  the  petition  was accepted with costs and election of the successful candidate was declared void. As the conduct of the appellant was found to be  motivated, half of the costs was ordered to be shared by him.      The appellant  appealed to  this Court  under s.116A of the of Representation People Act, 1951 seeking expunction of the observations  as also  the direction  in regard  to  the costs.      Allowing the Appeal, ^      HELD: 1.  The  appellant  had  acted  appropriately  in performance of  his duty  as Returning  Officer and  did not over-step the  same; he  was not responsible either directly or  indirectly   for  making   any  alteration  in  the  two nomination papers.  The observations  made by the High Court are, therefore  vacated. The directions for sharing of costs stand also vacated being unwarranted. [621 A-B]

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615      2. There was no justification at all for the High Court to come  to the conclusion that the conduct of the Returning Officer was  most depreciable. Until justifiable grounds are made out no evidence should be condemned. [620 G]      3. The  High Court  has lost sight of the position that there  is   a  presumption  that  official  acts  have  been regularly performed  and the  burden was  on the  person who pleaded to the contrary and sought a different conclusion to be reached. [620 H]      4. In  the connected appeal against the decision of the High Court  by which  the election of the returned candidate was vacated,  the  judgment  of  the  High  Court  has  been reversed by  taking  a  different  view  in  the  matter  of appreciation of  the  evidence  of  Returning  Officer,  the appellant. [619C]      5. At the trial the election petitioners have failed to establish the  alleged motivation  for the  rejection of the nomination papers.  On a  reference to  the demeanour of the appellant  as   a  witness,  the  alleged  contradiction  or variation between  the orders of rejection and deposition in Court, the conclusion that appellant was responsible for the alteration of the proposer’s serial number in the respective nomination papers  has been reached. The Court by holding to the contrary  has concluded  that the  Returning Officer was not a  party to  any alteration in the nomination papers and he had  passed legitimate  orders of rejection of nomination papers. It  has been  held that  the inconsistent statements made by the Returning Officer when he was in the witness box were the  outcome of  confusion. A  categorical finding  has been recorded that the reason indicated for rejection of the nomination papers  fits in with the defects appearing in the documents and the oral evidence given by the appellant. [620 C-E]      6. Under  s.116A of  the Act an appeal shall lie to the Supreme Court  on any  question whether  of law or fact from every order  made by  the High  Court under s. 98 or 99. The appellant though  not a  party to  the election petition can maintain the  appeal on account of the direction for sharing the costs and the strictures to justify that direction. [619 D; E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4263 of 1984.      From the  Judgment and Order dated 28.8.1984 of the Pb.      & Haryana High Court in E.P. No. 1 of 1984.      K.P. Bhandari and S.C. Patel for the Appellant No. 1.      S.N. Kacker, Mahabir Singh, N.S. Bishnoi, P.K. Sandhir, L.K. Pandey for the Respondents.      D.K. Garg for the Respondents Nos. 2 and 3. 616      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. The  appellant was  the  Returning Officer in  the by-election to Constituency No. 78 Fatehabad Assembly  Constituency   of  Haryana  State  for  which  the election schedule  was published  on November  23, 1983. The last date  for filing  of nomination papers was November 30, 1983, and date of poll was scheduled for December 23, 1983.      Nomination papers were to be scrutinised on December 1, 1983. During  scrutiny  the  appellant  rejected  nomination papers of  two candidates  being Mani  Ram Chhapola  and Raj Tilak. After  the election Lila Krishan was declared elected

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and thereupon  an election  petition  was  filed  under  the Representation of  the People  Act, 1951  (’Act’ for  short) before the  High Court  of Punjab  & Haryana  at  Chandigarh being Election  Petition  No.  1  of  1984  challenging  the election of Lila Krishna.      In the  election  petition  it  was  alleged  that  the rejection of  the two  nomination  papers  was  without  any justifying ground  and on  account of  improper rejection of those nomination  papers, the  election was liable to be set aside under  Section 100(1)(c)  of the  Act. At the trial of the election  petition the  successful candidate  who was  a respondent in the High Court examined the appellant as RW.3. The appellant  had rejected the nomination papers on account of wrong  indication of  the proposer’s serial number in the electoral roll  of the  respective  nomination  papers.  The evidence of the appellant was analysed by the High Court and the learned Judge came to hold:           "In  Ex.   P.1  (nomination   paper  of  Mani  Ram      Chapole), the  name of  the  proposer  is  tick-marked.      Similarly, in  Ex. P.6  (nomination paper of Raj Tilak)      the name  of the proposer is again tick-marked. In view      of the express stand taken by Shri Umed Singh Rao, RW.3      (appellant), the  name could  not be tick-marked unless      found correct  in accordance  with the  entries in  the      electoral rolls.  After the  name of  the proposer  was      located in the electoral roll, there was no question of      not finding  serial numbers  of the votes of both these      proposers  in   the  electoral   rolls.  The  order  of      rejection passed in the case of Shri Raj Tilak has been      produced in para- 617      graph 3  above. The  copy of  order of rejection of the      nomination paper  of Shri  Mani Ram  Chapole is Ex. P.3      and reads as:-                ’S.No. of the vote of proposer does not tally           with  S.No.   mentioned  in   voter  list.   Hence           rejected’.           This also  goes in  line with the process of tick-      marking as  stated by Shri Umed Singh Rao RW.3 and also      admitted by  the respondent  (returned candidate). When      this was  the situation, that the name was found but it      did not  tally with the electoral roll number mentioned      in the  nomination paper-the nomination paper could not      be rejected  as the  Returning Officer  could find  the      particular  of  the  proposer  with  the  help  of  the      election staff  assisting him. During the course of the      statement, Shri  Umed Singh  Rao tried  to  change  the      position about  the order  by saying:  ’I rejected  the      nomination paper of Shri Mani Ram Chapola as the serial      number of  the electoral roll of his proposer Shri Brij      Bhushan when  compared with the relevant electoral roll      did not  contain his  name. Similarly,  the  nomination      paper of  Shri Raj  Tilak was  rejected because he vote      number of  his proposer Shri Upender Kumar as mentioned      in  the   nomination  paper   when  compared  with  the      electoral roll  did not  contain his name there. ’There      is a  marked change in the orders passed as recorded on      the nomination papers on 1st of December, 1983 and what      Shri Umed Singh Rao, Returning Officer, tried to say in      his statement  reproduced above.  When the orders dated      1st of  December, 1983  are read  in the  light of  the      practice of tick-marked adopted by Shri Umed Singh Rao,      these convey  to mean  that the  name which  was  tick-      marked was  found, but serial number of the vote of the      proposer did  not  tally  with  the  voters  list.  The

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    statement conveys the meaning that the serial number of      the vote  of the  proposer mentioned  in the nomination      paper, his  name could  not be  found in  the electoral      roll. This  apparently  contains  a  different  meaning      altogether. Shri  Umed Singh Rao cannot be permitted to      add twist to the original orders recorded on the 1st of      December,  1983  to  change  their  sense  and  meaning      ........" 618           "Shri Umed  Singh Rao  RW.3 cannot be permitted to      add an explanation to the orders which he passed on 1st      of December,  1983 to  change the  sense of  the orders      passed by  him to reject the nomination papers exhibits      P.1 and P.6 at the stage of the trial of the petition.           When once  Shri Umed  Singh Rao, Returning Officer      RW.3  had  found  the  name  of  the  proposer  of  the      electoral roll and had tick-marked it, then the defect,      if any,  remains of  unsubstantial  character,  because      against the name he could find a correct electoral roll      number, which have tallied with the original nomination      paper,  without   tampering.  The   nomination   papers      Exhibits  P.1   and  P.6   were  therefore,  improperly      rejected.           The nomination papers of Sarvshri Mani Ram Chapola      and Raj  Tilak Exhibits  P.1 and P.6 respectively could      not be  rejected, as  there was  no non-compliance with      Section 33(4)  of the  Act. As a matter of fact Section      33(4) of  the Act  had been complied with and these two      nomination papers  were in  order when these were filed      by Shri R.C. Sharma, Assistant Returning Officer. These      were  tampered   with  after  the  examination  of  the      nomination papers  by the candidates or their agents on      1st of  December, 1983,  when those were with Shri Umed      Singh Rao,  Returning Officer,  RW.3.  His  conduct  in      either tampering  with the nomination papers himself or      manipulating the  tampering in  these nomination papers      was guided  by ill-motives.  I say so because Shri Umed      Singh Rao was not a new man in election matters. He had      acted as  Assistant or  Returning Officer  in elections      five or six times prior to that. This conduct of such a      responsible person  entrusted  with  the  duties  of  a      returning officer in the election system, which is very      foundation of democracy is most depreciable.           From whatever  angle it is viewed, the conclusion,      which I  arrive  at,  is  that  the  nomination  papers      Exhibits P.  1 and  P. 6  of Shri  Mani Ram Chapola and      Shri Raj  Tilak were  improperly rejected.  In view  of      this the  election petition  is accepted with costs and      the election of 619      Shri Lila  Krishan  respondent  from  the  78-Fatehabad      Assembly  constituency   to  the   Haryana  Legislative      Assembly held  on 23rd  of December,  1983 is  declared      void. As  the conduct of Shri Umed Singh Rao, Returning      Officer, was  not straight  forward but  was motivated,      half of the costs shall be shared by him."      The appeal  has been  filed seeking  expunction of  the observations as  also the  direction in  regard to costs and the memorandum  of appeal shows that the appeal is one under Section 116A of the Act. Section 116A(1) makes provision for appeals to this Court and provides:           "116A(1). Notwithstanding  anything  contained  in      any other  law for  the time  being in force, an appeal      shall lie to the Supreme Court on any question (whether      of law  or fact)  from every order made by a High Court

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    under Section 98 or 99." Section 99(1)  (b) authorises the High Court also to make an order at the time of making an order under Section 98 in the matter of  the total amount of costs payable and specify the persons by  whom such costs shall be paid. The appellant was not a party to the election petition nor has he any cause of action connected  with the  result of  the election petition except the  direction for sharing the costs to the extent of a moiety  and the reasons indicated by the High Court by way of strictures  to justify  that direction  in the  matter of costs.      In the  connected appeal  against the  decision of  the High Court  by which  the election of the returned candidate was vacated  (C.A. 4123  of 1984 disposed of today), we have reversed the  judgment of  the High  Court and have differed from it in the matter of appreciation of the evidence of the Returning Officer,  the appellant  herein. We  have  already extracted the  comments of the High Court for the purpose of showing how  unjustified the  criticism is.  In the election petition before  the High Court the election petitioners had alleged in paragraph 16:           "The order  of rejection  of the  nomination paper      has  been  passed  by  the  Returning  Officer  at  the      instance of  Chief Minister,  Bhajan Lal for the reason      that he  considered Raj  Tilak popular  and a  renowned      able candidate or 620      likely to  cause damage  to the  voters of the Congress      nominee. It  was known  to the  Returning Officer  that      proposer is duly registered elector of the 78 Fatehabad      Assembly Constituency  at Sr.  No. 77  in part 39. That      the   petitioners   apprehends   the   tampering   with      nomination paper  by the  Returning Officer  or at  his      instance after the scrutiny." At the  trial the  election petitioners led to establish the alleged motivation  for  the  rejection  of  the  nomination papers. On  a reference to the demeanour of the appellant as a witness,  the alleged  contradiction or  variation between the  orders  of  rejection  and  deposition  in  court,  the conclusion  that  the  appellant  was  responsible  for  the alteration of the proposer’s serial number in the respective nomination papers  has been  reached. We  have by holding to the contrary  come to  the  conclusion  that  the  Returning Officer was  not a party to any alteration in the nomination papers and  he had  passed legitimate orders of rejection of nomination papers.  We have  also held that the inconsistent statements made  by the Returning Officer when he was in the witness box  were the outcome of confusion. We have recorded a  categorical   finding  that   the  reason  indicated  for rejection of  the nomination papers fits in with the defects appearing in  the documents  and the  oral evidence given by the appellant.      We have  read the  whole evidence  of the appellant and have examined  the other  materials on  record and have also analysed the  judgment of the High Court. We are of the view that there was no justification at all for the High Court to come to  the conclusion  that the  conduct of  the Returning Officer  was  most  depreciable.  Every  Original  Court  is entitled-nay,  duty   bound-to  assess   or  make  a  proper appraisement of  the  evidence  placed  before  it  for  the purpose of  disposing of  the lis  in connection  with which such evidence is received. It is elementary to indicate that such assessment  has to  be fair  and reasonable  and  every witness participating  in the  judicial proceeding  must  be assured of  the position  that he  would be  entitled  to  a

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square deal.  Until justifiable  grounds  are  made  out  no evidence should  be condemned.  The High Court seems to have lost sight  of the position that there is a presumption that official acts  have been  regularly performed and the burden was on  the person  who pleaded to the contrary and sought a different conclusion to be reached. 621      We allow  the appeal,  vacate the  observations of  the High Court  against the  appellant by  holding that  he  had acted appropriately  in performance of his duty as Returning Officer  and   did  not  over-step  the  same;  he  was  not responsible either  directly or  indirectly for  making  any alteration in  the two nomination papers P-1 and P-6 and the directions for sharing of the cost to the extent of a moiety stands vacated being unwarranted. We think it appropriate to point out  that even  Mr.  Kacker,  learned  senior  counsel appearing for  the election  petitioners before  us did  not want to  support the  conclusions of  the High Court against the appellant. There would be no order as to costs. A.P.J.         Appeal allowed. 622