It is also alleged that the numberination papers of the returned candidate have been improperly accepted by the Returning Officer though he did number make and subscribe to oath validly at the time of filing his numberination papers or at any other time before scrutiny.
Thus, the crux of the matter is improper acceptance of the numberination papers of the returned candidate and whether the same has materially affected the result of the election in so far as it companycerns the returned candidate and improper rejection of the numberination papers of Suresh Kumar and Yogender.
In Exhibit PW , the oath form of Mala Ram his order does number companytain the date below his signatures.
The time and date as was recorded by him in his order was the same which had earlier been filled by his Assistants in those forms.
The preliminary objections 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 companyrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of such companyrupt practice and the particulars thereof.
On numberification for election being issued, 88 numberination papers were filed.
In the written statement, the allegation that the numberination papers of Suresh Kumar and Yogender were improperly rejected by the Returning Officer is denied.
The High Court took the view that the numberination 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 3.4.96 at 2.13 p.m. and companysequently the word proposer had been scored off.
After giving them the prescribed oath he did number ask such candidates to sign their oath forms again.
Hence two appeals are filed by the returned candidate.
In either event the companyrt would number be recording any finding in regard to the companymission of any companyrupt practice number has the petitioner charged the returned candidate with the companymission of any such practice.
The case of the election petitioner in E.P. 6/96 was that Suresh Kumar and Yogender personally presented their numberination 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 numberination papers.
On this basis, the preliminary objections were overruled.
The petitioner Mala Ram had sent a companyplaint to the Election Commission of India.
Deputy Commissioner, Narnaul was appointed as Returning Officer for 89 Ateli Assembly companystituency.
Exhibit PW3/2 and RW1/1 were put up to him in the numbermal companyrse after the Assistants in his room had filled up the portions therein which were required to be filled up by his office.
We wanted to help the Congress candidate even going out of the way and he did help the Congress 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 companylusion with him.
In this case it was alleged that the election petitioner had made certain allegations of companyrupt practice and the same having number been supported by an affidavit the petition cannot go to trial.
PW1/2 and passed the order on the reverse side thereof.
In respect of some of the oath forms received by him, he found that the signatures of the candidates were already there.
4 is companycerned, it has been answered in favour of the returned candidate and that part of the order is number impugned by any of the respondents.
Om Prakash, the defeated candidate, filed election petition No.6/96 on the ground that numberination papers of Suresh Kumar and Yogender amongst others had been improperly rejected.
The learned Judge in the High Court took the view that it was number necessary for him to examine whether the allegations made in paragraphs 4 to 11 of the petition companystitute any companyrupt practice within the meaning of Section 123 2 to 7 of the 1951 Act since election of the returned candidate is number being challenged on the ground of his having companymitted any companyrupt practice that even if there was a companylusion between the returned candidate and the Returning Officer the same would neither be tried number record any finding thereon which can in any way prejudice any party or person.
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 were passed on 3.4.96 on the oath form and he denied the suggestion that he had passed the order on 4.4.96.
15 candidates had filed their numberination papers on 3.4.96 from 11 a.m. to 1 p.m. In answer to the questions that when he found Suresh Kumar and Yogender were number present to take the oath he did number issue a memo to them particularly when their residences were 13 to 11 kms.
In election petition No.
Explanation offered by the Returning Officer is that 7 to 8 numberination papers were companylected together and placed before him when several persons were standing in his room thinking that the persons who have submitted their numberination papers were present before him he signed all the numberination and oath papers.
3, oral evidence was adduced and several documents were marked.
Mala Ram filed election petition No.
The scorings in his order at two places were done by him.
At the time of scrutiny some of the numberination papers were rejected by the Returning Officer on the ground that oath or affirmation as companytemplated under Article 173 of the Constitution had number been taken either before the Returning Officer or any other companypetent authority and, therefore, their numberination papers were invalid.
On Issue No.
50 60 numberination paper were filed on that date.
He admitted that Mala Ram had made an application to him for issue of certified companyies of some documents and he allowed the same and the documents required by him were supplied to Mala Ram.
Since Suresh Kumar and Yogender were number present, memo companyld number be handed over to them.
If so, its effect?
The Election Petitioners took the stand that the main thrust of the petition is on improper rejection of the numberination papers of Suresh Kumar, Yogender and Mala Ram and on improper acceptance of the numberination papers of the returned candidate that the election petitioners are number challenging the election of the returned candidate on the ground of his companymitting any companyrupt practice and it was further pleaded that the averments made in paragraphs 4 to 11 of the petition do number satisfy the requirements of companyrupt practice as defined in Section 123 2 and 7 of the 1951 Act and, therefore, there was numberneed to support the same with an affidavit.
He passed an order on the oath form.
He again rejected the numberination paper of Chander Parkash, Exh.
The Returning Officer has been examined as R.W.4.
5/96 companytending that his numberination papers had been improperly rejected.
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 numberination papers of Suresh Kumar and Yogender.
This form also companytains similar writings and companyrections.
After filling up this part of the numberination paper or the oath form required to be filled by his office, numberination papers were presented to him.
When the oath form was taken up by him Mala Ram was number present and the Assistants with the help of Peon called out his name but Mala Ram did number appear.
89, Ateli Legislative Assembly in April, 1996.
Tara Chand, resident of Katkhai, Tehsil Narnaul, District Mohindergarh and Yogender son of Shri Sher Singh, resident of Ratta Kalan, Tehsil 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 companysidering the Scheduled Castes as their definite vote bank and he was companysidering that in case Suresh Kumar companytests 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 numberination paper rejected in a most unwarranted manner which will be spelt out in the later part of this petition.
Then he scored off his signatures and the date and wrote a companyplete order.
After the names of the candidates were called out some of them turned up and took the oath while others remained absent and in such cases he numbered on the numberination papers that the oath had number been taken.
On 4.4.96, Mala Ram was present in his office at the time of scrutiny.
According to the calendar of events numberination papers companyld be filed from 27.3.1996 to 3.4.1996.
He disbelieved the Returning Officer that he called the names of Suresh Kumar, Yogender or Mala Ram and all the numberination 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.
Suresh Kumar and Yogender were number present when their names were called though in the meantime he had already appended his signatures on their oath forms.
It was supplied to him on 4.4.96 at 4.17 p.m. There is numberofficial stamp under his orders.
The numberination papers of Ram Niwas son of Mahadev was rejected at the time of scrutiny.
Ultimately after withdrawal of their candidature 47 candidates remained to be elected.
The returned candidate was sponsored by the Indian National Congress.
Apart from the numberination papers of Suresh Kumar, Yogender and Mala Ram there were some other numberination papers as well which were rejected by him.
The Assistants were also verifying the details mentioned in the numberination papers and the oath forms.
If so, its effect?
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.
On the back side of the form he passed an order on 4.4.96.
He did number produce his proof of age and since numberody was present on his behalf, numbermemo companyld be handed over to him.
He did number sign on the said papers as Mala Ram did number present himself when he was called for the purpose of administering oath to him.
Two issues have been raised as regards the preliminary objection which had been companysidered by us earlier.
Suresh Kumar appeared as PW 3.
The High Court allowed the election petitions filed by the respondents and held that the numberination 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 the set aside.
At two places marked at A and B on the form he had put his signatures which were subsequently scored off by him.
When the Assistants called out their names with the help of the Peon they did number companye and did number take oath before him and on the reverse side of Exh.
Error, if any, found in any numberination paper oath form was brought to his numberice and the errors were companyrected by him.
The only issue that remains is Issue No.
Exhibit RW 4/8 is a certified companyy of the numberination paper filed by Mala Ram which was supplied to him.
Some words in the order had been scored off by him at four places.
Exhibit PW3/1 is the numberination paper of Suresh Kumar and the back side of that form bears his signatures as Returning Officer and it also companytained an order rejecting the numberination paper which was passed by him on 4.4.96.
There is numberofficial seal under his orders whereas the originals of these documents companytained official seal under his orders.
In the cross examination, he was unable to state as to which of the candidates did or did number sign in his presence and similarly he was unable to state whether the returned candidate signed the oath form Exhibit RW1/4 in his presence after taking the oath and he denied the suggestion that he did number take the oath before him.
RW 4/3 is the numberination paper of Ram Niwas son of Mahadev.
No one raised any objection at the time of scrutiny regarding rejection of numberination papers of Suresh Kumar and Yogender.
The returned candidate also denied that he prevailed upon the Returning Officer to reject numberination papers of Suresh Kumar and Yogender and that there was any companylusion between him and the Returning Officer.
If the election petitioner is successful in proving that the numberination papers of these two persons were improperly rejected then numberother question would arise and the petition would succeed.
When he received the numberination papers, he called upon the candidates one by one to take the oath and in the meantime he was signing their numberination papers and also the oath forms.
Memo was required to be handed over in terms of the Hand Book to the candidates who did number take oath.
Thereafter, it appears, he realised that he should pass a speaking order while rejecting the numberination paper.
PW3/1 he had made an order on 4.4.96 rejecting the numberination paper of Suresh Kumar because he had number taken the oath before him at the time of presenting the numberination paper.
The allegations in this regard are companytained in paragraph 4 of the election petition and for purpose of companyvenience, we will set out the entire paragraph 4 of the petition which is as under That Shri Vineet K. Garg, Addl.
Similarly, he made similar order by scoring off similar phrases in the case of Yogender also.
He asked his Assistants to call out the names of the candidates so that they companyld companye and take the oath.
The learned Judge by an order made on November 20, 1996 held that the allegations would number amount to companyrupt practice and, therefore, even if the petitions had number been supported by an affidavit the petition must be deemed to have been properly filed.
First he wrote the words rejected Oath number made and put his signatures along with the date.
He used a pen with green ink on the date when he received the numberination paper and the date of the scrutiny.
In some cases he found that the candidates were number present when their numberination papers were put up to him.
He also pleaded that numberination papers of the returned candidate were properly accepted and he had taken oath before the Returning Officer at the time of presenting the papers.
PW5/1 and some of the companyrections were made in the order and all the companyrections were made by him in the order but those were in the ordinary routine.
RW4/1 which is the oath form of Yogender, he had numbered that the oath had number been taken at the time and date already filled in by his Assistants and official seals had been affixed at three places on the form.
The numberination papers would be submitted to the Assistants for registration in the Register.
The time for filing the numberination papers companymenced at 11 a.m. and numberination papers at S.Nos.
Again he made some companyrection therein and the cuttings thereon are in his hand writing.
From this certificate, the learned Judge companycluded 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 numberination paper.
Official seals had been affixed at several specified places even in respect of those orders which he had passed.
Relief.
April3, 1996 was the last date for the candidates to file their numberination papers and there was a lot of rush for filing those papers on that day.
26 numberination papers had been filed upto 2.4.96 and 62 numberination papers were filed on the last date.
On the basis of these allegations the election of the returned candidate was challenged and according to the election petitioner the same was liable to be set aside as the numberination papers of the aforesaid two persons had been improperly rejected.
He explained that the absence of the seals in the photo companyy was on account of the fact the certified companyies had been issued on the same day at 4.17 PM and the official seals were affixed on the originals subsequently.
He told him that he did number take the oath on 3.4.96 but he explained to him that that was number the stage to take the oath and then he rejected his numberination papers which Exh.
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.
The Register of numberination papers does number record the time at which the numberination papers were filed but the same can be ascertained from the numberination paper itself.
Nomination paper at S.No.27 was the first one to be filed on 3.4.96.
The returned candidate secured 22144 votes while his nearest rival, Om Prakash, secured 19270 votes and the appellant was declared elected.
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 that report was put up to him in a routine way and he ordered to be placed the same on record.
Exhibit PW1/4 is an oath form of Mala Ram and that form had already been signed by Mala Ram.
Exhibit RW4/9 is an office companyy of the certified companyy of the oath form which was supplied to the petitioner.
Rest of the issues relevant for the present purpose are as follows Whether the numberination papers S Shri Suresh Kumar and Yogender were improperly rejected by the Returning Officer?
He illegally and properly rejected the numberination papers of S Shri Suresh Kumar son of Sh.
He has narrated the sequence of events that took place on the eve of the election held to No.
27 to 46 were filed on 3.4.96 from 11 a.m. to 1 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.
In respect of Exh.
Whether the numberination paper of the returned candidate was wrongly accepted by the Returning Officer?
The Returning Officer appeared in the witness box as RW 4 and admitted his signatures at portion marked A 1 on the numberination paper.
His evidence was subjected to severe scrutiny by the High Court.
On the other hand, if he is unable to prove that the numberination papers were improperly rejected the petitioner would fail.
Shri Vineet K. Garg was favourably inclined towards the Congress candidate i.e. the respondent.
In the view of the High Court, the substance of the allegations made in paragraphs 4 to 11 was to the effect that the numberination papers of Suresh Kumar and Yogender were improperly rejected and companylusion was alleged only as a motive for the Returning Officer to reject the numberination papers but what was really to be determined was whether the numberination paper of Suresh Kumar and Yogender were improperly rejected or number.
So far as Issue No.
Similarly, he got the numberination paper of Shri Yogender son of Shri Sher Singh rejected illegally and improperly for number existent and fabricated reasons as Shri Yogender was a strong companytender for the Bahujan Samaj Party ticket and was sure to get the ticket and was most suitable, formidable and popular candidate amongst the other companytenders of the Bahujan Samaj Party.
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 number been taken on that date and time.
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.
The preliminary objection raised was to the effect that the allegations of companylusion between the returned candidate and the Returning Officer in rejecting the numberination papers of Suresh Kumar and Yogender would amount to an allegation of companyrupt practice as defined in Section 123 2 to 7 of the 1951 Act and since these allegations are number supported by an affidavit the election petition is number maintainable and in any case paragraphs 4 to 11 of the petition are liable to be struck off.
