1999 Supreme(SC) 1035

1999(8) Supreme 263
Supreme Court of India
(From Punjab & Haryana High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu & R.C. Lahoti, JJ.
Narender Singh -Appellant
versus
Mala Ram & Anr. -Respondents
Civil Appeal Nos. 5776-5777 of 1977
With
SLP (C) Nos. 22529-22530 of 1997
Decided on 15-9-1999
Counsel for the Parties :
For the Appearing Parties : Rajinder Sachar, Prabha Shankar Mishra, Sr. Advocates, Rao Ranjit, Vishnu Sharma, Anup Banerji, Sushil Kumar Jain, Ms. Anupama Sharma, Shiv Sagar Tiwari, H.M. Singh, Atul Kumar, Ranbir Yadav, Advocates.

Headnote:(i) Representation of People Act, 1951-Section 83(1) r/w Section 123(2) and (7)-Election petition challenging improper rejection of nomination paper on ground oath or affirmation contemplated under Article 173 of Constitution had not been taken-Allegation that Returning Officer in collusion with returned candidate improperly rejected nomination paper of petition-Returned candidates plea that allegation amounted to corrupt practice as defined in Section 123(2) and (7) and election petition without supporting affidavit was not maintainable-High Court hold­ing that it was not necessary to examine whether allegations made in petition constituted corrupt prac­tice and even if there was collu­sion as alleged same would neither be tried nor any finding would be recorded-High Court holding substance of allegation was improper rejection of nomination paper and all other allegations were mere embellishments rejected preliminary objection and held election petition was maintainable : Held, when High Court’s order made clear that no corrupt practice as arising under Section 123(2) to (7) would be put in issue or any trial held thereon all apprehension of returned candidate stood alleged-Order of High Court as to maintainability of election petition could not be found fault with. (Paras 5, 6 & 7)

       (ii) Representation of People Act, 1951-Election petition alleging nomination paper was rejected on ground that oath or affirmation contemplated under Article 173 of the Constitution had not been taken-Averment alleging that Returning Officer in collusion with returned candidate improperly rejected nomination paper while in fact oath had been taken and Returning Officer put his stamp and signature on oath form after oath was taken but receipt was not given as it was not ready then-Allegation that Returning Officer later scored of his signature in oath form and rejected nomination paper passing orders that oath was not taken-Evidence of Returning Officer that his clerk received nomination paper and bunch of 8 to 10 nomination papers were presented to him by his clerk and Returning Officer put his signature in routine manner in oath form and thereafter candidates were called to take oath-His case that at the time when election petitioner was called to take oath he was not available and consequently he scored of his signature on oath form and passed order rejecting nomination paper for want of oath-Evidence and documentary evidence made it clear that Returning Officer’s version was probable -High Courts remark against Returning Officer that his conduct was most reprehensible and suggest­ing Election Commission to take action in accordance with law unwar­ranted-Rejection of nomi­nation paper proper-High Courts order set aside-Election of return­ed candidate upheld-Elec­tion petition dis­missed.

       Held : 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. (Para 14)

       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 (Para 15)

       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. (Para 19)

       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. (Para 21)

       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 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 candidate’s 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. (Para 22)

       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 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 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. (Para 23)