Holding

The Supreme Court held that no corrupt practice under Section 123 was put in issue, the lack of an affidavit under Section 83(1) was not fatal, and the evidence was not sufficient to overturn the election, so the returned candidate's election stands.

Summary

The appellant, Nareder Singh, was elected to the Haryana Legislative Assembly in 1996. Defeated candidates, including Mala Ram, filed election petitions alleging that the Returning Officer had improperly rejected the nomination papers of Suresh Kumar, Yogender and Mala Ram and had improperly accepted the appellant's nomination, alleging collusion that amounted to corrupt practice under the Representation of the People Act, 1951. The High Court held that the allegations did not constitute a corrupt practice, but nevertheless allowed the petitions and set aside the election on the basis of the evidence. On appeal, the Supreme Court held that where no corrupt practice under Section 123 is put in issue, the lack of an affidavit under Section 83(1) is not fatal, and that the evidence presented was not decisive enough to overturn the election, as two reasonable inferences were possible and the benefit of doubt must go to the returned candidate. Consequently, the Court allowed the appeal, dismissed the election petitions and upheld the election of the returned candidate.

Issues considered

The allegation of collusion between the Returning Officer and the returned candidate amounts to a corrupt practice under Section 123 of the Representation of the People Act, 1951 and whether an affidavit under Section 83(1) is required.
Whether the alleged improper rejection of nomination papers of Suresh Kumar, Yogender and Mala Ram, and the alleged improper acceptance of the returned candidate's nomination, materially affect the election result.
Whether the evidence on record is sufficient to set aside the election of the returned candidate.

Legislation cited

Representation of the People Act, 1951s. 123, s. 83(1)

Subjects

election petitionnomination paperscorrupt practiceRepresentation of the People Actburden of proofevidence appraisalelection dispute

Judgment

A NARENDER SINGH
v.
MALA RAM AND ORS.

SEPTEMBER 15, 1999

B [DR. A.S. ANAND, C.J., S. RAJENDRA BABU AND
R.C. LAHOTI, JJ.]

Representation of the People Act, 1951:

C Sections 83(1) and 123-Election PetitiOn-Corrupt practice-
Affidavit-In support of-Requirement of filing-Allegations of improper
rejection of nomination papers of some candidates and improper acceptance
of nomination papers of the returned candidate by the Returning Officer in"
collusion with him-High Court held that the said allegations did not amount
to corrupt practices and the so called collusion was merely embellishment
D to the said allegation-Held: High Court's view justified and reasonable-
Where no corrupt practice arising under S.123 is put to issue or any trial
held thereon, preliminary objection that such allegation is not supported by
affidavit as required under S.83(1), not sustainable.
Election petition-Nomination papers-Improper rejection and
E acceptance-Insufficient evidence-Effect of-Allegations of improper
rejection of nomination papers of some candidates and improper acceptance
of nomination papers of the· returned candidate-Evidence of Returning
Officer corroborated by other witnesses on several aspects particularly in
regard to procedure adopted by him for acceptance or rejection of the
F nomination papers-No clinching material to hold in favour of the election
petitioner-Evidence on record capable of two interpretations-One in favour
of the returned candidate and the other in favour of the election petitioner.
Held : Under these circumstances, the High Court erred in upsetting the
election of the returned candidate on the basis of such testimony.
Election-Trial of-Burden of proof-Held : Onus to prove essential
G
facts, which constitute cause of action, is upon election petitioner. Oral
evidence should be assessed carefully.
Election Petition-Trial of-Evidence-Appreciation of-Held : If the
evidence adduced is capable of drawing two inferences, one in favour of the
returned candidate and the other in favour of the election petitioner, the
H o
438
NARENDER SINGH v. MALA RAM 439
· former should be preferred. A
The appellant was eiected to the State Legislative Assembly. The
respondent, defeated candidate, filed an Election Petition before the High
Court challenging the election of the appellant on the grounds of improper
rejection of nomination papers of some candidates and improper acceptance
of nomination papers of the appellant by the Returning Officer in collusion B
with the appellant.

The appellant raised a preliminary objection that the allegations raised
in the election petition amounted to corrupt practices and inasmuch as no
affidavit was filed in support of such corrupt practices, the election petition
could not be tried. c
The High Court held that the allegations did not amount to corrupt
practices and, therefore, even if the petition was not supported by an affidavit,
the petition must be deemed to be properly filed. However, the High Court
examined the Returning Officer and other witnesses and allowed the election
petition on the basis of such evidence. Hence this appeal. D
Allowing the appeal, the Court

HELD: 1.1. The High Court's view that the election of the returned
candidate was being challenged on the ground of improper rejection of
nomination papers of some of the candidates and improper acceptance of the E
nomination papers of the returned candidate and all other allegations were
mere embellishment to the same is justified and reasonable.[443-H; 444-A)

1.2. When no corrupt practice arising under Section 123 of the
Representation of the People Act, J951 was put in issue or any trial held
thereon, the preliminary objection that the allegations of corrupt practice F
were not supported by an affidavit as required under Section 83(1) of the R.P.
Act cannot be sustained. (444-BI
2. In the instant case the evidence of the Returning Officer is
corroborated by other witnesses on several aspects particularly in regard to
the procedure adopted by him for rejection or acceptance of the nomination G
papers. On the basis of the evidence on record two inferences are possible-
to ac.~ept either the version of the Returning Officer or that given by the
election petitioner and his witnesses. There is no clinching material at all
to hold in favour of the election petitioner. Hence, High Court erred in
upsetting the election of the returned candidate on the basis of such testimony.
(451-D; 452-E; B-C) H
440 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R .

.A 3. 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
B the returned candidate will have to be preferred. [450-B)

Ram Singh v. Col. Ram Singh, [1985) Supp. SCC 611; Rahim Khan v.
Khurshid Ahmed, [1975] 1 SCR 643 and Thakur Sen Negi v. Dev Raj Negi,
[1993] Supp. 3 SCC 645, relied on.

C CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5776-77 of
1997 Etc.

From the Judgment and Order dated 11.7.1997 of the Punjab and Haryana
High Court in Election Petition Nos. 5 and 6 of 1996.

D Rajinder Sachar, Prabha Shankar Mishra, Rao Ranjit, V1::..nlU Sharma,
Anup Banerji, Sushil Kumar Jain, Ms. Anupama Sharma, Shiv Sagar Tiwari,
H.M. Singh, Atul Kumar and Ranbir Yadav for the appearing parties.

The Judgment of the Court was delivered by
E 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 tiled. The returned candidate was sponsored
F 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
G 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. 6196 on the ground that nomination
papers of Suresh Kumar and Yogender amongst others had been improperly
rejected. Mala Ram filed election petition No. 5196 contending that his
H nomination papers had been improperly reject~d. In these cases, contention
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 441
put forth was that Yogender, Suresh Kumar and Mala Ram had taken oath or A
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 en 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.
B
The returned candidate raisedI 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 C
petition No. 5196, 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. 6196. 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 set aside. Hence two appeals D
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. E
The preliminary objection 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 F
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 : G
"4. That Shri Vineet K. Garg, Addi. 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 H
442 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
•

A 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 Shri Suresh Kumar son of Shri Tara
Chand, resident of Katkhai, Tehsil Narnaul, District Mohindergarl: and
Yogender son of Shri Sher Singh, resident of Ratta Kalan, Tehsil
B 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
c 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.
D
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
E 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
F 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 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
G 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
H petition is on improper rejection of the nomination papers of Suresh Kumar,

,r-
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 443

Yogender and Mala Ram and on improper acceptance of the nomination A
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, B
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 C
even ifthere 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 D
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 E
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. F
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 G
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 H
444 SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.

A of improper rejection of the nomination papers of Mala Ram, 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
B 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.

C 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
D 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
E 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 Y ogender 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
F 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
G had been considered by us earlier. Rest of the issues relevant for the present
purpose are as follows :

"3. Whether the nomination papers of Shri Suresh Kumar and
Yogender were improperly rejected by the Returning Officer? If
so, its effect?
H
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 445
4. Whether the nomination paper of the returned candidate was A
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 B
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, Ateli Legislative Assembly in April, 1996. April 3, 1996 was the last date c
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 papers 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 D
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 I I a.m. and nomination papers at S. Nos. 27 to 46 were --
filed on 3.4.96 from I I a.m. to I 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
E
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 F
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
G
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 H
446 Sl!PREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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 an(time. The time and date as was recorded by him in
B 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
I 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
C paper ofYogender 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/l 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
D nomination paper which was passed by him on 4.4.96. The scorings in his
order at two places were done by him. Exhibit PW 3/2 and RW 111 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.
E When the Assistants called out their ~ames with the help of the Peon they
did not come and did not take oath before him and on the reverse side of Exh.
PW 3/1 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
F 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
ofYogender also. Exhibit PWl/4 is an oath form of Mala Ram and that form
G 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 was not the stage to take the oath and then .he rejected his
H nomination papers which Exh.PWI/2 and passed the order on the reverse side
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 447
thereof. Again he made some correction therein and the cuttings thereon are A
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. B
PWS/l and some of the corrections were made )fl 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 C
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 RW
114 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 D
he found Suresh Kumar and Yogender were not present to take the oath he
did not issue a memo to them particularly when their reside~ces 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. E
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 F
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 G
that report was put up to him in a routine way and he ordered to 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 H
448 SYl?REME COURT REPORTS [1999] SUPP. 2 S.C.R.

A .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 p.m. 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
B had passed. In Exhibit PW 114, 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
\Nere passed on 3.4.96 on the oath form and he denied the suggestion that
he had passed the order on 4.4.96.
c
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
D 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.
E 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
F signing the oath fonn 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 papers and
G 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 .
H is so, the fact that the candidate who was personally present at a specified
NARENDER SINGH v. MALA RAM (RAJENDRA BABU, J.] 449

point of time being absent at that very time when he was to take the oath A
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 of fact Suresh Kumar was present and B
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 C
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 D
who was eligible to contest."

Similar reasoning was adopted by the learned Judge in the case of
Yo gender. 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 E
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 F
taken its roots it is not only the purity of the electoral system which
is a must but th~ 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. G
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."
H
450 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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
B 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:

c "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 process
and instead of setting at naught the election of the winning candidate,
D 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
E 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 ·-...
G 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.
H witnesses wearing robes of veracity, to upturn a hard won electoral
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 451
victory merely because lip service to a corrupt practice has been A
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 man's public life."

Again in Thakur Sen Negi v. Dev Raj Negi, [1993] Supp. 3 SCC 645, it B
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 C
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."
D
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 E
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 errors or mistakes in maintaining the records in his office
but it would not lead to the conclusion that he has rejected the nomination F
papers of Yogender, Suresh Kumar and Mala Ram ma/a fide. He appears as
witness in the case and admits the writing or over-writing/scoring effected on
tlie 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 G
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 H
452 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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
B 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
C 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
D 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
E 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.
F
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
G 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 did not present himself when he was called for the purpose of
H administering oath to him. Explanation offered by the Returning Officer is that
NARENDER SINGH v. MALA RAM lRAJENDRA BABU, J.] 453
7 to 8 nomination papers were collected together and placed before him when A
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. B
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 C
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 D

- 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, E
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 F
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 askeq the clerk sitting by his side to complete the G
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 H
454 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

~ A at all. In so far as the question of filling up of the fonn 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 fonns was not given in his presence. The procedure
B 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 numbers 86 and 87 wif' the
time duly corrected as 2.48 p.m. are entered. Thus it appears to us that tu...
nomination papers were handed over to the Returning Officer at 2.48 p.m.
C 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
. D 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 fonn and the receipt portion. However, none of these papers bear
E 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
F Returning Officer who put up his seai on the nomination paper in token o_f
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.
G The evidence of Mala Ram may be compared with what he had complained
to the Election Comm~ssion (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
--
H oath form was also stated to have been attached to the application, but this
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 455
affidavit is not forth coming in the evidence in the case. In the complaint made A
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 B
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 fonn C
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 D
- 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 E
realised that the concerned candid:ite 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 F
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 G

-
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
he 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 H
456 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A .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 ma/a 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
B Officer is not worthy of credence. The criticism made by the High Court in
appraising Qie 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
C 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 fopns as required by the
instructions issued by the Election ~ommission it is stated that he made an
D 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
E 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
F 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
G . 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 nominatio.n 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
H tendered by the Returning Officer in this regard but ought to have accepted
NARENDER SINGH v. MALA RAM [RAJENDRA BABU, J.] 457
his case and dismissed the election petition as we propose to do now. We A
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. ns29-22530 of 1997
B
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.

v.s.s. Appeals allowed.