UMED SINGH RAOversusMANI RAM GODARA & ORS

    6i4

                                 UMED SINGH RAO
A
                                           v.

                         MANI RAM GODARA & ORS

B                                    May 8, 1985

                (S. MURTAZA FAZAL ALI, A. VARADARAJAN AND
                              RANGANATH MISRA, JJ.)

c          Representation of the P•ople Act, 1951, ss.98, 99 and JJ6A.

            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 custs-Appeal by Returring Officer- ~Vhetlrer maintainab!e-
D   High Court's order- Whether legal and valid.

          The appellant, a Returning Officer in the by·election to Fateh11bad
    Assembly Constituency of Haryana State, rejecled the nomination papers of
    two candidates. The election of the successful candidate was cahllenged on the
    ground that the nomination papers were in1properly rejected. At the trial the
E   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
F   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.ll6A of the
    of Representation People Act, 1951 seeking expunction of the observations as
    also the direction in regard to the costs.
G
          Allowing the Appeal,

          HELD: I. The appellant had acted appropriately in performance of his
    duty as Returning Officer and did not over·step the same; he was not res-
H   ponsible 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 beins
    unwarranted. [621 A-BJ
                         tJ.S. RAO V. M.R. GODARA                             615

       2. Th•« was no juatlftcation at all for the High Court to come to the
conclusion that the conduct of the Returning Officer was most deprecable.             A
Until justifiable grounds are made out no evidence should be condemned.
[620 OJ

       3. The High Court has lost sight of the position that there is a presump-
tion that official acts have been regularly performed and the burden was
on the pcrion who pleaded to th• contrary and soua;ht a different conclusion
to bo reached. [620 HJ
                                                                                      B

      4. In tho connocted appeal a11ainil the deci•ion of the High Court by
which the election of the returntd candidate was vacated, the judgment of the
High Court has been reversed by taking a different view in the matter of
appreciation of tho ovidenc• of Returning Officer, the appellant. [619C]
                                                                                      c
       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, lhe alleged contradiction or
variation between the orders of rejection and deposition in Court, the conclu-
iion that appellant was responsible for the alteration of the proposer's serial
number in the respective nomination papers has been reached. The Court by             D
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 n1ade 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 ir.dicatcd for rejection of the nomination papers fits in with the defects
 appearing in the documents and the oral evidence given by the appellant.             E
 [620 C-EJ

        6. Under 1.ll6A of the Act an appeal sbaU 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 striclures to justify that direction. [619 D; EJ                       F
        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. I of 1984.                                     G

        K.P. Bhandari and S.O. Patel for the Appellant No. I.

      S.N. Kacker, Mahabir Singh, N.S. Bishnoi, P.K. Sandhir, L.K.
 Pandey for the Rtspondents.                                                          ff

        D.K. Garg for the Respondents Nos. 2 and 3.
                          SUPREME COURT REPORTS        [198~) SUPPL. s.c.R.

          The Judgment of the Court was delivered by
A
          RANGANAm 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 nomi·
B   nation 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
c   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. I of 1984 challenging the
    election of Lila Krishna.
D
          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 lOO(l)(c) of the Act.
    At the trial of the election petition the successful candidate who was
E   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
F   hold:

              "In Ex. P.1 (nomination paper of Mani Ram
         Chapole), the name of the proposer is tickmarked.
         Similarly, in Ex. P.6 (nomination paper of Raj Tilak) the
         name of the proposer is again tick-marked. In view of
G        the express stand taken by Shri Urned 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 loca-
         ted in the electoral roll, there was no question of not
H        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·
    U.S. RAO v. M.R. OODARA (Ranganath Misra, J.)               617

graph 3 above. The copy of order of rejection of the
nomination paper of Shri Mani Ram Chapole is Ex. P.3                  A
and reads as :-

        'S.No. of the vote of proposer does not tally
    with S.No. mentioned in voter list. Hence rejected'.
                                                                      B
     This also goes in line with the process of tick-marking
as stated by Shri Urned 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
                                                                      c
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 Urned
Singh Rao tried to change the position about the order
by saying : 'I rejected the nomination paper of Shri Mani             D
Ram Chapola as the serial number of the electoral roll of
his proposer Shri Brij Bhushan when compared with the
relevant electroral roll did not contain his name.
Similary, 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                    E
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 !st of
December, 19~3 and what Shri Urned Singh Rao, Return-
ing Officer, tried to say in his statement reproduced                 F
above. When the orders dated !st of December, 1983
 are read in the light of the practice of tick-marked
adopted by Shri Urned 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              G
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 Urned Singh Rao
cannot be permitted to add twist to the original orders               H
 recorded on the !st of December, 1983 to change their
 sense and meaning_ ......."
    618                    SUPREME COURT REPORTS        (1985) SUPPL, s.c.it.

                "Shri Urned Singh Rao RW. 3 cannot be permitted
A         to add an explanation to the orders which he passed on
          Isl of December, 1983 to change the sense of the orders
          passed by him to reject the nomination papers exhibits
          P. l and P.6 at the stage of the trial of the petition.

B              When once Shri Urned 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,
c         which have tallied with the original nomination paper,
          without tampering. The nomination papers Exhibits P. I
          and P.6 were. therefore, improperly rejected.


                The nomination papers of Sarvshri Mani Ram
           Chapola and Raj Tilak Exhibits P. I and P.6 respectively
D
           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. Shar;na, Assistant Returning
E         Officer. These were tampered with after the examination
          of the nomination papers by the candidates or their
          agents on !st of December, 1983, when those were with
          Shri Urned Singh Rao, Returning Officer, RW.3. His
          conduct in either tampering with the nomination papers
          himself or manipulating the tampering in these nomi·
F         nation papers was guided by ill-motives. I say so because
          Shri Urned 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 &uch a responsible person entrusted with the duties of
G         11 returning officer in the election system, which is very
          foundation of democracy is most deprecable.


               From whatever angle it is viewed, the conclusion,
          which I arrive at, is that the nomination papers Exhibits
H         P. I and P. 5 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
              U.S. RAO v. M.R. GODARA (Ranganath Misra, J.)            619

          Sbri Lila Krishan respondent from the 78-Fatehabad
          Assembly constituency to the Haryana Legislative                     A
          Assembly held on 23rd of December, 1983 is declared
          void. As the conduct of Shri Urned Singh Rao, Returning
          Officer, was not straight forward but was motivated, half
          of the costs shall be shared by him."
                                                                               B
_,         The appeal has been filed seeking expunction of the
     observations as also the direction in regard to costs and the memo-
     randum of appeal shows that the appeal is one under Section l 16A
     of the Act. Section l 16A(I) makes provision for appeals to this
     Court and provides :
                                                                               c
                "116A(l). 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."
                                                                               D
     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      E
     the election petition except the direction for sharing the costs to the
      extent of a moiety an I 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     F
      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
      appr.eciation of the evidence of the Returning Officer, the appellant
      herem. We have already extracted the comments of the High Court
      for the purpose of showing how unjustified the criticism is. Jn the      G
      election .petition before the High Court the election petitioners had
      alleged m paragraph 16 :


               "The order of rejection of the nomination paper has
           been passed by the Returning Officer at the instance of             H
           Chief ~in.ister, Bhajan Lal fr r the reason that he conside-
           red RaJ T!lak popular and a renowned able candidate or
    620                   SUPREME COURT REPORTS        (198$] SUPPL. S.c.a.

          likely to cause damage to the voters of the Congress
A         nominee. It was known to the Returning Officer that
           proposer is duly registered elector of the 78 Fatehahad
          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
B         scrutiny .. "

    At the trial the election petitioners aled 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 contradic-
c   tion or variation between the orders of rejection and deposition in
    court, the conclusion that the appellant was responsible for the alter·
    ation 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
D   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
E   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
F   justification at all for the High Court to come to the conclusion that
    the conduct of the Returning Officer was most deprecable. 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 !is in connection with which
    such evidence is receved. It is elementary to indicate that such
G   assessment has to be fair and reasonable and every witness partici-
    pating 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
H   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.
                u.s. RAO v. M.R. OODARA (Ranganath Misra, J.)        621

          We allow the appeal, vacate the obervations of the High Court
    against the appellant by holding that he had acted appropriately in      A
    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· l 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       B
    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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