Umed Singh Rao Vs. Mani Ram Godara
& Ors [1985] INSC 126 (8 May 1985)
MISRA RANGNATH 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] 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]
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 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
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 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 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.
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