Rao Om Parkash Engineer vs Narender Singh

N.K. Sodhi, J.

This order will dispose of two Election Petitions 5 and 6 of 1996 both of which call in question the election of Narender Singh respondent to the 89Ateli Assembly constituency of the Haryana Legislative Assembly held in April, 1996. The petitions have been filed under Section 100(1)(c) of the Representation of the People Act, 1951 (referred to hereinafter as the Act). In Election Petition 5 of 1996 the election has been challenged on the ground that the nomination papers of the petitioner therein were improperly rejected whereas in the other petition the ground of challenge is that the nomination papers of two other persons Suresh Kumar and Yoginder were improperly rejected. These petitions were heard together and since the respondent was to produce the same witnesses in both the cases, counsel for the parties agreed that in order to avoid unnecessary repetition in recording the same evidence the statements of the witnesses of the respondent as recorded in Election Petition 6 of 1996 be treated as evidence in the other case as well and copies thereof placed on the record of that case. The same was accordingly done.

The Governor of Haryana called upon the constituencies in the State of Haryana to elect members for the Haryana Legislative Assembly and thereafter the Election Commission notified the election programme for holding elections in the State as under :

(i) Filing of nomination papers :

27.3.1996 to 3.4.1996 to 3.4.1996

(ii) Scrutiny of nomination papers :

4.4.1996

(iii) Withdrawal of nomination papers :

5.4.1996 to 6.4.1996 upto 3.00 PM

(iv) Allotment of symbols :

6.4.1996

(v) Polling :

27.4.1996

(vi) Counting of votes :

8.5.1996

Election Petition 6 of 1996:

A large number of nomination papers were filed by the candidates including the petitioner and the respondent in the 89Ateli Assembly constituency. The petitioner was sponsored by the Haryana Vikas Party whereas the respondent was a candidate of the Indian National Congress Party. Suresh Kumar son of Tara Chand and Yogender son of Sher Singh also filed their nomination papers. Suresh Kumar filed his papers as a Scheduled caste candidate whereas Yogender claimed that he had been sponsored by the Bahujan Samaj Party. After the scrutiny and withdrawal of nomination papers, 47 candidates including the petitioner and the respondent were left in the field. Polling was held on 27.4.1996 and after the counting of votes the respondent was declared to have secured 22,114 votes whereas the petitioner polled 19,270 votes. Since the number of votes polled by the respondent were more than the votes polled by any other candidate, he was declared elected by the Returning Officer.

Shri Vineet K.Garg, Additional Deputy Commissioner, Narnaul was the Returning Officer for the Ateli Assembly constituency and he rejected the nomination papers of Suresh Kumar and Yogender on the ground that they had not taken the oath before him as envisaged in Article 173 of the Constitution. This Article provides that a person is not qualified to be chosen to fill a seat in the Legislature of a State unless he is a citizen of India and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. It is alleged that Suresh Kumar and Yogender took the oath, signed their oath forms and the Returning Officer too put his signatures certifying the fact of oath having been taken by them but later he scored off his signatures to help the respondent by illegally and improperly rejecting their nomination papers on the ground that they had not taken the oath. The plea is that the Returning Officer was out to help the Congress Party candidate, namely the respondent and for that end he did all this thus acting in a most arbitrary and whimsical manner at this behest. It is also the case of the petitioner that Suresh Kumar belongs to a Scheduled Caste and the Congress Party including the respondent were of the view that all Scheduled Castes in the State were with the Congress Party and regarded Scheduled Castes as their definite vote bank and, therefore, they thought that if Suresh Kumar contested the election he would get a large number of Scheduled Caste votes which would damage the chances of the Congress candidate. It is for this reason, according to the petitioner, that the respondent prevailed upon the Returning Officer to reject the nomination papers of Suresh Kumar even though he presented the same personally and took the oath before him. It is further alleged that the respondent prevailed upon the Returning Officer to improperly reject the nomination paper of Yogender as well who was being sponsored by the Bahujan Samaj Party and he too would have claimed a large number of Scheduled Caste votes to the disadvantage of the Congress candidate. It is pleaded that both Suresh Kumar and Yogender personally presented their nomination papers before the Returning Officer on 3.4.1996 at 2.13 P.M. and 2.15 P.M. respectively and that they made and subscribed the oath before him at the time of presenting the nomination papers. Another ground on which the election of the respondent is being challenged is that his nomination paper had been improperly accepted by the Returning Officer though he (respondent) did not make and subscribe a valid oath at the time of filing his nomination papers or at any other time before scrutiny. The plea is that the improper acceptance of the nomination papers of the respondent has materially affected the result of the election in so far as it concerns the returned candidate.

In the written statement filed by the respondent, some preliminary objections were taken. It is pleaded that since the petitioner has alleged that the respondent was in collusion with the Returning Officer in getting the nomination papers of Suresh Kumar and Yogender rejected and these allegations constitute a corrupt practice as defined in Sections 123(2) and 123(7) of the Act it was necessary that these should have been supported by an affidavit. It is averred that as the averments in the election petition are not supported by an affidavit the petition is incompetent and liable to be rejected.

On merits, it is denied that the respondent prevailed upon the Returning Officer to reject the nomination papers of Suresh Kumar and Yogender or that there was any collusion between him and the Returning Officer in this regard. It is also denied that their nomination papers were improperly rejected by the Returning Officer. According to the respondent, the Returning Officer acted in accordance with law and the rules and that his conduct did into betray any partiality. It is also pleaded that the nomination papers of the respondent were validly accepted and that he had taken a valid oath before the Returning Officer at the time of presenting his papers.

A replication was filed by the petitioner controverting the averments made in the written statement and reiterating those in the election petition. An objection was taken in the replication that the preliminary objection as raised in the written statement had not been properly verified in accordance with the provisions of the Code of Civil Procedure and that those paragraphs, therefore, deserved to be struck off.

Pleadings of the parties gave rise to the following issues :

Whether the allegations made in the petition amount to any corrupt practice committed by the returned candidate ? If so, what is the effect of such allegations not being supported by an affidavit ? OPR

Whether paras 1 to 3 of the preliminary objections in the written statement are liable to be struck off on the ground of not having been verified by the respondent ? OPP

Whether the nomination papers of Sarvshri Suresh Kumar and Yogender were improperly rejected by the Returning Officer ? If so, its effect ? OPP

Whether the nomination paper of the respondent was wrongly accepted by the Returning Officer ? If so, its effect ? OPP

Relief.

The issues were framed on the agreement of the parties and no other issue was claimed. Parties produced their evidence both oral and documentary and after considering the same and hearing their counsel at length, my findings on the issues are as under :

Issues No. 1 & 2:

The parties did not lead any evidence on issue No. 1 and on their request it was treated as a preliminary issue. By my detailed order dated 20.11.1996 the preliminary objection was held to be misconceived and consequently it was overruled. Issue No. 1, therefore, stood decided in favour of the petitioner and against the respondent. Issue No. 2 was not pressed by the learned counsel for the petitioner and, therefore, this issue is decided against the petitioner and in favour of the respondent.

Issue No. 3 :

The real controversy between the parties is covered by this issue. Exhibit PW3/1 and Exhibit PW4/2 are the nomination papers of Suresh Kumar and Yogender respectively and these were rejected by the Returning Officer on 4.4.1996 at the time of scrutiny. The orders rejecting the nomination papers which are similarly worded in both the cases read as under :

In the case of Suresh Kumar :

"Rejected.

Oath not made according to proper procedure. Only oath paper has been signed. Oath has not been made before me. Candidate has not even collected receipt for nomination paper and oath paper. Therefore, rejected.

Sd/

4.4.

Returning Officer "

In the case of Yogender :

"Oath not made according to proper procedure. Only oath paper has been signed. Oath has not been made before me. Candidate has not even collected receipt for nomination paper and oath paper. Therefore, rejected.

Sd/

4.4.

Returning Officer"

It may be reiterated that the case of the petitioner is that Suresh Kumar and Yogender not only took the oath before the Returning Officer at the time of presenting their nomination papers but they also signed their oath forms in his presence and that the Returning Officer also signed those forms certifying that they had taken the oath. It is also the case of the petitioner that the Returning Officer subsequently scored off his signatures on the oath forms with a view to reject their nomination papers. On the other hand, the case set up by the respondent is that Suresh Kumar and Yogender did not take the oath before the Returning Officer, and, therefore, their nomination papers were validly rejected. In order to determine as to which of the two versions is correct, we have to examine the evidence on the record.

It has come in evidence that the nomination papers as well as the oath forms were available in a room adjoining the room of the Returning Officer. The nomination paper is in prescribed form 2B. A look at this form would show that the first part is to be filled up by the proposer under his signatures giving his own particulars as well as particulars of the candidate. In the second part of the nomination paper the candidate is required to give his assent to his nomination and he is required to sign the same. The third part of the nomination paper is to be filled by the Returning Officer and it is so mentioned in the nomination form. The Returning Officers have also been instructed by the Election Commission to fill up this part personally or through, their Assistant Returning Officers and put the exact time and date at which they are received after they are serially numbered. This part pertains to the certificate which the Returning Officer has to give regarding the time and date at which the nomination paper was presented to him and whether the same was presented by the candidate or by his proposer. While filling this part, the Returning Officer is required to score off either the word candidate or proposer depending on who presents the nomination form before him. The serial number of the form has also to be filled in this part. A nomination paper can be presented either by the proposer or by the candidate and by no one else. There is then space for the Returning Officer to record orders after scrutiny of the nomination papers to say whether he is accepting or rejecting the same alongwith reasons, if any. In the end, there is a receipt form which is to be signed by the Returning Officer which is to be handed over to the person who presents the nomination paper. Similarly, the oath form to be filled in by the candidate consists of three parts. In the first part he fills in his name and signs the same. The second part to be filled up by the Returning Officer where he has to certify that the candidate made and subscribed the requisite oath in his presence stating the exact date and time at which the oath was taken. The third part is the receipt part which has to be signed by the Returning Officer to be delivered to the candidate when he has taken the oath.

Now when we look at the nomination form of Suresh Kumar which is Exhibit PW3/1, it is clear that the same was entered in the register meant for the purpose at serial number 64 and the Returning Officer has certified that the same was presented to him by the candidate personally on 3.4.1996 at 2.13 P.M. and consequently the word `proposer'' has been scored off. The Returning Officer appeared in the witness box as RW4 and admitted his signatures at portion marked A1 on the nomination form. He also admitted his signatures on the order rejecting the nomination paper. From this certificate, it is clearly established that Suresh Kumar was present in the office of the Returning Officer on 3.4.1996 at 2.13 P.M. When he filed his nomination papers. Suresh Kumar appeared as PW3 and has stated that he reached the office of the Returning Officer at about 1.30 P.M. and after filling up the nomination form and the oath form he handed over the same to the clerk in the room adjoining that of the Returning Officer. He has further stated that the clerk told him that due to rush he was sending the forms in a batch of 7 to 8 forms to the Returning Officer. Some other candidates namely Yogender, Narender, Tej Pal, Vijay Soni and Chander Parkash PW5 were also present with him in that room as they were also filing their nomination papers. According to this witness their forms were sent to the Returning Officer and after some time they were sent to his room and it was around 2/2.15 P.M. that their nomination papers were checked by the Returning Officer and oath given to them. PW3 has stated that he took the oath by reading from the oath form and then signed the same. He has further stated that after he had taken the oath the Returning Officer appended his signatures on the oath form certifying that he (witness) had taken the oath. Exhibit PW3/2 is the oath form signed by him. When this original form was shown to the witness he stated that the signatures of the Returning Officer has been scored off but this had not been done in his presence. He has further stated that the time, date and place in the oath form were filled by the clerk sitting by the side of the Returning Officer after he had made and subscribed the oath. This witness has further stated that receipts for his nomination paper as also for the oath form were not given to him and the Returning Officer told him that since there was heavy rush the receipt could be collected in the evening or on the following day. He has stated that he kept waiting for the receipt till about 3.30 P.M. when he was told by the clerk that the same could be had on the following day at the time of scrutiny. According to this witness when he went for scrutiny on 4.4.1996 he met the Returning Officer at 10.30 A.M. and demanded the receipt from the clerk who told him to meet the Returning Officer. When he met the Returning Officer he was told that he could not get the receipt and he was asked to go out of the room. At 11 A.M. when the scrutiny started the nomination paper of this witness was also taken up and he was told that the same was being rejected because he had not taken the oath. According to the witness he pointed out to the Returning Officer that he had taken the oath and that the Returning Officer too had signed the oath form certifying that the oath had been taken. The Returning Officer is said to have got annoyed with him and asked him to leave the room. In his crossexamination a suggestion was put to this witness that the peon of the Returning Officer had called out after 3 PM the names of some of the candidates who had not taken the oath but had signed their oath forms and the witness denied this suggestion. He also denied the suggestion that some of the persons whose names were called went and took the oath. Another suggestion put to this witness was that the official stamp of the Returning Officer was put on his nomination paper and the oath form in the room adjoining the office of the Returning Officer. He denied the suggestion. Curiously enough the evidence led by the respondent is to the contrary. RW3 and RW4 have stated that all the nomination papers and the oath forms were stamped by the Assistants in the room of the Returning Officer. It appears that the respondent was not sure of the case that he was pleading. There is nothing in the entire crossexamination of PW3 to suggest that he is not telling the truth. The statement of PW3 is supported by the statement of PW 4. PW4 is Vijay Kumar who also contested the election from the Ateli Assembly constituency. He too filed his nomination papers on 3.4.1996 and was alongwith others present with Suresh Kumar in the room adjoining the room of the Returning Officer. As stated by him they all filed their nomination papers in the afternoon and it was around 2/2.15 PM that they were all called by the Returning Officer. PW3 and PW4 have both stated that in the bunch of 7 to 8 nomination forms and oath forms, the forms of Suresh Kumar were the first to be taken up. PW4 has also stated that Suresh Kumar took the oath and then signed his oath form whereafter the Returning Officer directed his clerk sitting by his side to fill in the time, date and place in the oath form and also to affix his official stamp. After the same was done, the Returning Officer also signed the oath form of Suresh Kumar certifying that the latter had taken the oath before him. This witness has further stated that when Suresh Kumar demanded a receipt he was told that there was heavy rush and the same could be had either after 3 PM or on the following day. He has further stated that the Returning Officer then picked up the nomination paper and oath form of Yogender and after checking the same Yogender was asked to take the oath which he did. After taking the oath as stated by this witness Yogender signed the oath form and the Returning Officer then directed his clerk to fill the time, date and place in that form and put the official stamp. After the official stamp was put the Returning Officer also signed the oath form certifying that Yogender too has taken the oath in his presence. The presence of this witness at about the relevant time cannot be doubted since he was himself a candidate who had been admittedly administered oath by the Returning Officer at 2.17 P.M. No suggestion was made to him in his crossexamination that Suresh Kumar and Yogender did not take the oath in his presence. There is nothing in the crossexamination of this witness either which could suggest that he is not telling the truth. The fact that PW4 was present alongwith Suresh Kumar has not been disputed by the respondent and even otherwise it is clear from the record that he presented his nomination paper at 2.17 P.M. whereas Suresh Kumar had presented his nomination paper at 2.13 P.M. and that both had presented them personally. It is true that this witness filed his nomination form as a candidate of the Haryana Vikas Party but since he was not given the ticket by that party he contested as an independent candidate but this fact by itself is no ground to disbelieve him when his statement otherwise finds corroboration from the statements of other witnesses and the documentary and circumstantial evidence to which reference would be made later.

PW5 has also supported the version of the petitioner and corroborates the statements of PW3 and PW4. This witness too contested the election and had filed his nomination paper on 3.4.1996 at 2.20 P.M. alongwith Suresh Kumar, Yogender and some others. He has stated that when their nomination papers were taken to the Returning Officer, the latter picked up the forms of Suresh Kumar prior to him and after checking the same he called upon his name for the oath which he did. He further states that Suresh Kumar after taking the oath signed the oath form and then the Returning Officer directed his clerk to fill the time, date and place in the oath form and to put the official stamp. When this was done, the witness states that the Returning Officer also appended his signatures certifying that Suresh Kumar had taken the oath. This witness has also stated that Yogender had also taken the oath in the presence of the Returning Officer and thereafter signed his oath form. According to the witness the Returning Officer followed the same procedure in the case of Suresh Kumar and Yogender and then appended his signatures on their oath forms certifying that they had taken the oath before him. Petitioner appeared as his own witness and stated as PW1 that Suresh Kumar and Yogender filed their nomination papers on 3.4.1996 and that they took the oath in the presence of the Returning Officer. He has further stated that after taking the oath they signed the oath papers which were also signed by the Returning Officer. According to this witness when Suresh Kumar and Yogender asked for a receipt for their nomination papers they were told that the same could be had either in the evening or on the following day as there was heavy rush of candidates and no receipt was being issued to anyone. However, this witness was not present when Suresh Kumar and Yogender filed their nomination papers or took the oath. It was Suresh Kumar and Yogender who had informed him that they had taken the oath before the Returning Officer. Since the petitioner was not present when Suresh Kumar and Yogender are said to have taken the oath, his testimony is just hearsay and, therefore, not of much assistance.

As against the aforesaid evidence of PW1, PW3 to PW5, the respondent has appeared as his own witness and his statement was recorded as PW1. He has produced three other witnesses and they are RW2 Jagdish Parsad, PW3 Abhey Singh Yadav and the Returning Officer Vineet K. Garg as RW4.

RW1 to RW3 have not said a word about the rejection of the nomination papers of Suresh Kumar and Yogender and, therefore, their testimony is of no help in finding out whether their nomination papers were improperly rejected. RW3 has, however, stated in regard to the procedure which the Returning Officer had followed on 3.4.1996 while receiving the nomination forms. According to this witness there was a room outside the office of the Returning Officer where the nomination forms were available and the candidates took the nomination forms from there and filled them up. The voters'' list is also said to be lying in that room from where the particulars of the candidates and their proposers were being verified. The nomination papers alongwith the oath forms were then presented to the Assistants in that room and one of them would take a bunch of 7 to 8 nomination papers alongwith the oath form at a time to the Returning Officer in the adjoining room and the candidates whose nomination papers were taken were also sent to the room of the Returning Officer. The nomination papers were then handed over to the two Assistants who were sitting on the left side of the Returning Officer in his room. These Assistants rechecked the nomination papers and entered the same in a register that was maintained in the Office by the Returning Officer. The Assistants then put the serial number, time and date of presentation of the nomination papers and affixed the official seal of the Returning Officer wherever necessary. The nomination papers were then handed over to the Returning Officer who would call upon the candidates to take the oath. As further stated by his witness the candidates read the oath and signed their oath forms. The Returning Officer thereafter signed the oath forms certifying that oath had been taken. RW3 contested the election and had filled his nomination paper on 3.4.1996 in the afternoon and was present in the office of the Returning Officer on that day. He, therefore, knew what procedure the Returning Officer was following on that day. The testimony of this witness in so far as the procedure followed by the Returning Officer is concerned corroborates the statements of PW1 and PW3 to PW5 in material particulars. The Returning Officer who appeared as RW4 has referred to the procedure that he followed on 3.4.1996 and his version is different. He states that due to heavy rush he made his Assistants sit in his room with a view to save time and the candidates were coming to his room and submitting their nomination papers to the Assistants for registration in the register. However, according to PW1, PW3 to PW5 and RW3 the nomination papers alongwith the oath forms were being presented to the Assistants in the adjoining room where the nomination papers were available and those Assistants took the nomination papers to the Returning Officer in batches of 7 to 8 forms and those candidates were also sent to the adjoining room of the Returning Officer. The statement of the Returning Officer RW4 in so far as the procedure is concerned is contradicted by the statement of RW3 whose presence on 3.4.1996 in the room of the Returning Officer cannot be doubted. It makes no difference whether the nomination papers and the oath forms were being received by the Assistants in the adjoining room or whether in the room where the Returning Officer was sitting with his Assistants but what is important is as to what procedure was being followed by the Returning Officer while giving the oath. From the oral evidence as led by the parties, it is clear that the nomination papers were being received by the Assistants in the room adjoining the room of the Returning Officer and were being taken to the Returning Officer in a batch of 7 to 8 forms alongwith the candidates. Further it is also clear from the testimony of all the witnesses that after the nomination papers and the oath forms had been checked the candidates were called by the Returning Officer to take the oath one by one and he was signing their oath forms only after they had taken the oath. No doubt, there is a discrepancy in the statements of the witnesses for the petitioner and the statement of PW3 as to whether entries in the oath forms about the time, date and place of oath were made before the oath was taken or immediately after that but this discrepancy is hardly of any significance when we find that even RW1 and RW3 have also stated that the Returning Officer put his signatures only after the oath had been taken. In this view of the matter, there is every reason to believe that in the cases of Suresh Kumar and Yogender as well the Returning Officer RW4 must have followed the same procedure and signed their oath forms only after they had taken the oath and signed in token thereof.

If according to the procedure adopted by the Returning Officer he was signing the oath forms only after the candidates had taken the oath and appended their signatures thereon, why then in the case of Suresh Kumar and Yogender he deviated from the normal procedure and signed their oath forms without their having taken the oath. The statement of RW4 that he signed their oath forms in routine though the candidates were not present is palpably wrong and cannot be accepted. He has stated that while the candidates were being called upon to take the oath, he was simultaneously signing their nomination forms and oath forms. Even if we take the statement of the Returning Officer at its face value, it cannot still be believed that Suresh Kumar and Yogender were not present when their nomination papers and oath forms were taken up for examination from the technical point of view. There is no dispute that Suresh Kumar and Yogender filed their nomination papers personally on 3.4.1996 at 2.13 PM and 2.15 PM respectively. It is equally not in dispute that the Returning Officer has signed their nomination papers and certified that they were presented by the candidates (Suresh Kumar and Yogender) personally at 2.13 PM and 2.15 PM as is apparent from Exhibit PW3/1 and exhibit RW4/2. It is again the common case of the parties and supported by the statement of the Returning Officer himself that the oath forms and the nomination papers were being presented to the Returning Officer simultaneously at the same time and this fact is borne out from the record when we find that in every case the date and time of presentation of the nomination paper and of taking the oath as recorded in the oath form is the same. When this is so, no question of the candidate who has presented his nomination paper personally at a specific point of time being absent at that very time when he was to take the oath arises. In the case of Suresh Kumar PW3, the Returning Officer has certified on his nomination form Exhibit PW3/1 that the same was personally presented by the candidate at 2.13 P.M. on 3.4.1996. The oath form had also been presented then. In the oath form Exhibit PW3/2, the time and date at which Suresh Kumar is said to have taken the oath is also the same i.e. 2.13 P.M. on 3.4.1996. This form was signed by the Returning Officer though he later scored off his signatures. He has then recorded an order thereon that "oath not taken at 2.13 P.M. on 3.4.1996". RW4 was confronted with this oath form and the explanation furnished by him is that this oath form alongwith that of Yogender Exhibit RW4/1 were put to him in the normal course after the Assistants in his room had filled up the portions which were required to be filled up by their office and when he was called upon to take the oath he was not present though in the meantime the Returning Officer had put his signatures. This explanation is belied by the certificate given by him in the nomination form and other evidence in the case. The order passed on the oath form is ambiguous and does not state whether Suresh Kumar was present or not. However, when the Returning Officer appeared in the witness box, he has stated that Suresh Kumar was not present at 2.13 P.M. on 3.4.1996 and, therefore, he did not take the oath. It is surprising indeed why the Returning Officer while rejecting the nomination paper on the ground of oath not having been taken chose not to mention in the order that Suresh Kumar was not present particularly when he made cuttings in his order to pass a speaking order as stated by him. Similarly, in the order passed on the oath form, he does not mention that the candidate was not present. Thus, it is difficult to swallow the statement of the Returning Officer that Suresh Kumar was not present to take the oath at 2.13 P.M. when he has himself certified his presence at that very time in the nomination form Exhibit PW3/1. In such a situation, the statement of Suresh Kumar PW3 as supported by PW4 and PW5 has to be accepted as correct and it must be held that he was present before the Returning Officer, took the oath as certified by the Returning Officer himself on the oath form and that the Returning Officer for extraneous reasons scored off his signatures afterwards only to reject the nomination paper of Suresh Kumar. It will not be out of place to mention that it is not even remotely suggested either in the orders of the Returning Officer or by any witness including the Returning Officer and the respondent that Suresh Kumar though present when presenting the nomination papers refused to take the oath when called upon to do so. 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 took the oath and thereafter the Returning Officer also appended 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 credible. It is unfortunate that an officer 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 havoc with the political careers of the parties and also with that of Suresh Kumar who was eligible to contest.

I now take up the case of Yogender. He too filed his nomination papers on 3.4.1996 at 2.15 P.M. alongwith Suresh Kumar and presented them personally. The Returning Officer has certified his presence in the certificate which is there in the nomination from Exhibit RW4/2. It has been certified that the same was presented on the date and time as mentioned in the nomination form. This nomination paper was also rejected on the ground that he did not make (take ?) the oath before the Returning Officer. Here also oral evidence of PW4 and PW5 is clear that Yogender did take the oath before the Returning Officer and the latter signed the same certifying that it had been taken. This statement is corroborated by the documentary evidence which is Exhibit RW4/1 and Exhibit RW4/2. The ground of rejection is that he did not take the oath when his nomination paper was taken up for consideration on 3.4.1996. In the case of Yogender too the certificate given by the Returning Officer himself proves the presence of Yogender on 3.4.1996 at 2.15 P.M. The explanation furnished by the Returning Officer for rejecting his nomination paper is the same which was furnished in the case of Suresh Kumar and I have already held that the same does not inspire confidence. After scoring off his signatures from the oath form he went on to pass an order thereon stating that oath had not been taken at 2.15 P.M. on 3.4.1996. Here also the Returning Officer has tampered with the record and scored off his signatures only with a view to reject the nomination paper of Yogender though he was present and had taken the oath. For the reasons given in the case of Suresh Kumar which equally hold good in the case of Yogender as well, I must hold that he was present before the Returning Officer on 3.4.1996 at 2.15 P.M. and took the oath which was certified as having been taken by the Returning Officer himself but the latter for extraneous reasons scored off his signatures later only to reject the nomination paper of Yogender.

There is yet another reason why the version as given by RW4 cannot be accepted. Even if it were to be assumed that the Returning Officer once committed an error in signing the oath form of Suresh Kumar and subsequently scored off his signatures immediately on finding that he was not present at the time of taking the oath, he would have in the normal course been alerted to ensure that he did not repeat the same mistake in any other case and much less within two minutes. The oath form and the nomination form were presented by Suresh Kumar at 2.13 P.M. whereas Yogender presented the same at 2.15 P.M. Therefore, if at 2.13 P.M. he found Suresh Kumar was not present and had to score off his signatures from his oath form, it is incredible that when the next nomination paper which was that of Yogender was taken up at 2.15 P.M. he would sign the same although the candidate was not present.

According to the respondent the names of absentee candidates were called out by the staff of the Returning Officer 3/4 times and some of the candidates then appeared before the Returning Officer and took the oath but since Suresh Kumar and Yogender did not appear, their nomination papers were rightly rejected. This story is an afterthought and there is not even an iota of reliable evidence on the record to show that names of any of the absentee candidates were ever called. In para 10 of the written statement it is pleaded that names of Suresh Kumar and Yogender were called many a times by the peon so that they could come and take the oath but they were not present around 3 P.M. According to a suggestion as put to PW3 in his crossexamination names of some of the candidates who had filed their nomination papers but did not take the oath were called out after 3 P.M. RW4 has also stated that names of Suresh Kumar and Yogender were called out 3/4 times before he passed the orders on their oath forms that oath had not been taken by them. He did not record the time when the names of the candidates were called out for taking the oath nor did he record in his respective orders that the candidates were not present. RW4 has also stated that Om Parkash and Jag Ram who had also filed their nomination papers and which were registered at serial numbers 58 and 74 were not present at the time of taking the oath and that their names were also called out like the others and that they came back and took the oath and their papers were accepted. The names could not have been called out after 3 P.M. as is the case of the respondent because if that were so, then Om Parkash and Jag Ram should have taken the oath after 3 P.M. but their oath forms and nomination papers show that Om Parkash presented his nomination paper at 1.50 P.M. and took the oath at that time. Similarly, Jag Ram filed his nomination papers at 2.25 P.M. and took the oath then. The version of the respondent is, therefore, not correct and cannot be believed. The peon who allegedly called out the names of the candidates has not appeared in the witness box. RW3 has stated that the names of Suresh Kumar and Yogender were called at 2.15 P.M. while the respondent has pleaded in the written statement that they were not present around 3 P.M. when their names were called whereas the suggestion put to PW3 is that their names were called after 3 P.M. Again, as stated by RW3 no other name except those of Suresh Kumar and Yogender were called but according to RW4 the names of Om Parkash and Jag Ram were also called. RW3 is not stating the truth as it is not understood why he heard only the names of Suresh Kumar and Yogender when the names of two other candidates had also been called around the same time. It is all a cooked up story and no reliance can be placed on the testimony of RW3 and RW4 in this regard. Moreover, no mention is made in the orders of the Returning Officer if the names were ever called and at what time.

It is stated that the names of the candidates were called out by a peon who is said to have submitted a report in writing to the Returning Officer stating that the names had been called out but the candidates were not present. In the normal course of things, if the names had been called out the Returning Officer would not have obtained a report in writing from the peon in this regard as such a course is very unusual. It would have been sufficient for the Returning Officer to record that fact in his order which he has not done. As per instructions issued by the Election Commission, the Returning Officer was required to issue a memorandum in writing to the candidates who had filed their nomination papers but did not appear to take the oath. According to the Returning Officer Exhibit RW4/5 is the memo allegedly issued to Suresh Kumar. A look at this memo would show that it was prepared subsequently as it does not bear any number nor does it bear any date and even the Returning Officer has not put his signatures thereon. Only the name of Suresh Kumar has been written and there is no evidence on the record to show as to who wrote this memo. On the back side of the memo is the report of the peon which again makes an interesting reading. When translated into English it reads as under :

"On 3.4.1996 I called out from the gate 3/4 times the name of Suresh Kumar son of Tara Chand but he did not come present. Report is submitted.

Sd/

3.4.1996

Peon."

As already stated, such reports are not obtained in the normal course of conduct/business and even the learned counsel for the respondent had to concede that no reliance could be placed on this memo containing the report of the peon. Similarly, Exhibit RW4/6 is the memo which is said to have been issued to Yogender. This document also like the other memos appears to have been prepared subsequently by the Returning Officer. The reason why it became necessary to prepare such memos is clear from the record. Mala Ram (petitioner in Election Petition 5 of 1996) was one of the candidates who filed his nomination papers but the same were rejected on the ground that he was not present for taking the oath. When his nomination paper was rejected at the time of scrutiny on 4.4.1996 he immediately made a complaint to the Election Commission that in spite of his having taken the oath his nomination paper had been rejected. The Secretary, Election Commission sent a fax message to the Returning Officer. On the following day the petitioner went to Delhi and filed a complaint in writing on which the Election Commission sent a fax message to the Returning Officer enquiring from him as to whether he had issued any written memo in the prescribed form to the candidate as per instructions contained in para 24(2) of Chapter V of the `Hand Book for Returning Officers''. In reply to this message the Returning Officer submitted that Mala Ram was not present and went away immediately after filing his nomination papers and, therefore, the memo could not be handed over to him. The Election Commission disapproved the action of the Returning Officer and issued a general warning to him to be careful in future while dealing with election related duties. The complaint and the reply submitted by the Returning Officer as also the warning given by the Election Commission have been exhibited on the record of the connected election petition 5 of 1996 filed by Mala Ram challenging the election of the respondent. It appears that after the Returning Officer sent the reply to the Election Commission he prepared the memos to cover up his omissions and placed them on the file qua all the candidates whose nomination papers had been rejected. I have, therefore, no hesitation in holding that the names of the candidates were never called out as alleged by the respondent and as stated by the Returning Officer because both Suresh Kumar and Yogender were present and the alleged memorandums Exhibit RW4/5 and exhibit RW4/6 are fabricated documents which were prepared by the Returning Officer only to justify his act and conduct in wrongfully rejecting the nomination papers of these two candidates.

In view of the aforesaid discussion of the evidence, I hold that both Suresh Kumar and Yogender were present at the time when they filed their nomination papers. They not only took the oath in the presence of the Returning Officer but after they had signed their oath forms the Returning Officer too had signed their oath forms certifying that they had taken the oath. The Returning Officer later for reasons best known to him and obviously with a view to reject their nomination papers scored off his signatures from their oath forms by writing a factually wrong order on their oath forms that the candidates had not taken the oath at the time and date mentioned therein. The nomination papers of Suresh Kumar and Yogender were thus illegally and improperly rejected by the Returning Officer.

Issue No. 3 is consequently decided in favour of the petitioner and against the respondent.

Issue No. 4 :

Under this issue the election of the respondent has been challenged on the ground that his nomination papers were improperly accepted as he was not qualified to be chosen to fill a seat in the Haryana Legislative Assembly. What is alleged is that the respondent did not make and subscribe a valid oath at the time of filing his nomination papers nor at any other time before the date of scrutiny and he was, therefore, not qualified to be elected. Reference in this regard has been made to Article 173 of the Constitution which prescribes the qualifications for membership of a State Legislature. The onus to prove this issue is on the petitioner. The detailed averments in this regard have been made in paras 12 and 13 of the election petition and it is pleaded that improper acceptance of the nomination papers of the respondent has materially affected the result of the election in so far as it concerns the returned candidate. The petitioner has pressed into service the grounds mentioned in Sections 100(1) and 100(1)(d)(i) of the Act for getting the election of the respondent declared void.

In the written statement filed by the respondent the averments as made in paras 12 and 13 of the petition have been controverted and the case set up by the respondent is that he made the oath in accordance with law at the time of submission of his accordance with law at the time of submission of his nomination papers and that he had also taken a receipt for the same. The question that needs to be considered is whether the respondent had made and subscribed to the oath in the prescribed form before the Returning Officer at the time of submitting his nomination papers. In order to prove this issue the petitioner while appearing as PW1 stated that the nomination form of the respondent was wrongly accepted by the Returning Officer because the former did not take the oath after filing the same. He has further stated that the respondent presented his nomination papers and the oath form after signing them but did not take the requisite oath and that the oath paper had been signed prior to its presentation and was not signed in the presence of the Returning Officer after taking the oath. Admittedly, the petitioner was not present at the time when the respondent filed his nomination papers and is alleged to have taken the oath. In his crossexamination he states that one Raj Kumar Yadav informed him that the respondent had not taken the oath. The statement of the petitioner is based on hearsay and cannot be relied upon in this regard. There is no other evidence which the petitioner has led to prove that the respondent did not take the oath at the time of filing his nomination papers.

As against the statement of the petitioner the respondent appeared as his own witness and has categorically stated that he filed three nomination papers on 3.4.1996 at 11.35 AM and that he took the oath in the name of God at the time of filing his nomination papers. He has further stated that he had obtained a receipt for the nomination paper as also for the oath form after taking the oath. Exhibit RW1/1 to Exhibit RW1/3 are the three nomination forms filed by the respondent which were accepted by the Returning Officer. Exhibit RW1/4 is the oath form which was submitted by the respondent at the time of filing his nomination papers. A perusal of this form makes it clear that the Returning Officer has certified thereon that the respondent took the oath before him on 3.4.1996 at 11.35 A.M. As per the practice and procedure followed, the respondent was also issued a receipt for his oath form. This receipt is Exhibit RW1/5. It is clear from this receipt as well which has been signed by the Returning Officer that the respondent took the oath at the aforesaid date and time. RW4 has also stated that the respondent took the oath before him and that he certified the same on the oath form.

The argument of the learned counsel for the petitioner is that the oath form as well as the receipt do not indicate whether the respondent took the oath in the name of God or on solemn affirmation because none of the two alternatives have been scored off in both these documents though elsewhere in this very form the words which were not applicable had been scored off. For instance, the words `Rajya Sabha'' and `Lok Sabha'' were scored off but when it came to the oath part neither of the two alternatives i.e. in the name of God or on solemn affirmation have been scored off. The learned counsel argued that in fact the respondent did not take the oath. There is no merit in this submission of the learned counsel and it is being noticed only to be rejected. Merely because one of the two alternatives was not scored off does not mean that the oath had not been taken. The Returning Officer while appearing as RW4 has categorically stated that the respondent took the oath before him at the time when he submitted his nomination papers. There is no reason to disbelieve the oral and documentary evidence led by the respondent in support of his case. It must, therefore, be held that the respondent took the requisite oath on 3.4.1996 at 11.35 A.M. and was qualified to be chosen to fill a seat in the Haryana State Legislature. It thus follows that the nomination papers of the respondent were properly accepted. In this view of the matter, issue No. 4 is decided against the petitioner and in favour of the respondent.

Election Petition 5 of 1996 :

Mala Ram petitioner has challenged the election of the respondent on the sole ground that the nomination paper of the former (petitioner) was improperly rejected by the Returning Officer. It is alleged that the petitioner went to the office of the Returning Officer on 3.4.1996 alongwith his 5000 supporters and filed two sets of nomination papers at 1.45 P.M. One of the nominations was proposed by Shri Kamal Singh son of Piare Lal and the other by Shri Jag Ram son of Durjan Ram. It is further alleged that on receipt of the nomination papers the Returning Officer did not put any serial number on them but asked the petitioner to take oath in the prescribed form. It is pleaded that the petitioner took the oath by reading the same from the prescribed proforma and then put his signatures thereon before the Returning Officer. Thereafter the Returning Officer examined both the nomination forms from the technical point of view and after rectifying a minor error in one of them asked his official sitting in his room to fill up the receipt portion of the oath form and to affix the official seal on the nomination papers and the oath form. It is also the case of the petitioner that when he demanded receipts for his nomination forms and the oath form he was told to collect the same after 3 P.M. as there was heavy rush in the office. The petitioner is said to have waited outside the office of the Returning Officer till 3.30 P.M. and again contacted the office to give the receipts. He was then told to collect them after 5 P.M. or on the following day. The petitioner alleges that he again went to the Returning Officer at 4.45 P.M. but was told that the receipts were not ready and those could be collected on the following day before scrutiny. It is further pleaded that on 4.4.1996 at 10.30 A.M. the petitioner went to the Returning Officer to collect his receipts and he was told that the same would be given at the time of scrutiny which would commence at 11 A.M. It is further pleaded that the nomination paper of the petitioner was the first one to be taken up by the Returning Officer who wanted to reject the same on the ground of age but when the petitioner pointed out that there was no irregularily regard to age the Returning Officer rejected the nomination paper observing that the petitioner had not taken oath in terms of Article 173 of the Constitution. It is further averred that the Returning Officer made several cuttings in the oath form as well as in the nomination form and also in his order ejecting the nomination. The petitioner on the same day is said to have filed a complaint with the Election Commission by sending a telegram alleging that his nomination paper had been improperly rejected even though he had taken the oath before the Returning Officer enquiring from him as to whether he had issued a memo to the petitioner. The Returning Officer sent a reply stating therein that the petitioner after delivering his nomination papers and oath papers left his office immediately without taking the oath. According to the Returning Officer the name of the petitioner was called out many times but he was not found there and, therefore, no written memo could be handed over to him.

In the written statement filed by the respondent the material allegations made in the petition have been controverted and the case set up by the respondent is that the petitioner filed his nomination papers at 2.48 P.M. when there were twelve minutes left for the closing time. It is pleaded that after filing the nomination papers the petitioner did not take the oath nor did he take the receipt for his nomination papers and also for the oath form. According to the respondent the receipts were being issued at the time of filing of the nomination papers. Since allegations regarding the complaint made by the petitioner to the Election Commission and the reply sent by the Returning Officer did not concern the respondent, he has not offered any comments in this regard.

From the pleadings of the parties, the following four issues were framed on 4.10.1996:

(1) Whether the allegations made in the petition amount to any corrupt practice committed by the returned candidate ? If so, what is the effect of such allegations not being supported by an affidavit ? OPR

(2) Whether paras 1 to 3 of the preliminary objections in the written statement are liable to be struck off on the ground of not having been verified by the respondent ? OPP

(3) Whether the nomination paper of the petitioner was wrongly rejected by the Returning Officer ? If so, its effect. OPP

(4) Relief.

The onus to prove issue No. 1 was on the respondent and that of issue No. 2 on the petitioner. On 17.10.1996 learned counsel for the respondent stated that he does not press issue No. 1 and the learned counsel for the petitioner also stated that he does not press issue No. 2. Consequently, issue No. 1 was decided against the respondent and issue No. 2 was decided in his favour. The only issue that remains to be decided is issue No. 3. Parties have led their evidence oral and also documentary and after considering the same and having heard their counsel at length, my finding on this issue is as under :

The only question to be determined is whether the nomination papers of the petitioner were improperly rejected as alleged. As already stated, the case set up by the petitioner is that he took the oath before the Returning Officer and also signed his oath form in his presence but in spite of this his nomination paper had been rejected on the false ground that he did not take the oath. The case of the respondent, however, is that the petitioner after filing his nomination papers went away and did not take the oath. It is beyond dispute that the nomination papers of the petitioner were rejected by the Returning Officer on 4.4.1996 at the time of scrutiny and the following order was passed by him on the nomination paper :

"Oath not made according to proper procedure. Only oath paper has been signed. Oath has not been made before me. Candidate has not even collected receipt for nomination paper and oath paper also. Therefore, rejected.

Sd/

4.4.

Returning Officer."

Petitioner stepped into the witness box as PW1 and stated that he filed two sets of nomination papers at 1.45 P.M. on 3.4.1996 and that he also filed his oath form and took the oath before the Returning Officer. According to him he presented both his nomination papers to the clerk in the room adjoining the room of the Returning Officer and the said clerk took him to the Returning Officer around 1.45 P.M. The Returning Officer is then said to have checked his nomination papers and filled in his name, date and time of presentation. The petitioner has also stated that he took the oath, before the Returning Officer and thereafter signed the oath form before him. According to the petitioner the Returning Officer then handed over his nomination papers alongwith oath form to the clerk sitting by his side and directed him to complete the receipt portion by putting time and date and official seal of the Returning Officer thereon. The statement of the petitioner is supported by the testimony of PW3, PW4 and PW5 in all material particulars. Exhibt PW1/2 and Exhibit PW1/3 are the two nomination papers which the petitioner had filed. Exhibit PW1/4 is his oath form. In the nomination papers and also in the oath form the time at which those papers were presented and the time at which the oath is alleged to have been taken have been changed from 1.45 P.M. to 2.48 P.M. by overwriting. The time when nomination papers were presented before the Returning Officer and the time of taking the oath as mentioned in the respective forms is the same. The case of the petitioner is that he presented the nomination papers at 1.45 P.M. and not at 2.48 P.M. as shown in his nomination papers by changing the original entry. According to him the time of presentation in both the nomination papers and also at both places in the oath form were changed by the Returning Officer with a view to prepare a ground to make it appear that he was not present at 2.48 P.M. when nomination papers are said to have been presented. The respondent was not present when nomination papers were presented by the petitioner or when the petitioner is alleged to have taken his oath. He has, therefore, not said anything in his statement to this effect. The Returning Officer has, however, appeared as RW4 and stated that after presenting the nomination papers the petitioner left his office and was not present to take the oath and, therefore, his nomination paper was rejected. In the oath form Exhibit PW1/4 although the Returning Officer has not signed the certificate regarding the petitioner having taken his oath before him, the time therein has, however, been changed from 1.45 P.M. to 2.48 P.M. and there is a cryptic order passed by the Returning Officer to the following effect:

"Oath not taken at 2.48 P.M. on 3.4.1996.

Sd/

Returning Officer."

There is an official seal of the Returning Officer underneath his signatures. Apart from the question whether the nomination papers were filed at 1.45 PM or 2.48 PM it is to be determined whether the petitioner after filing his nomination papers was present for taking the oath. In both the nomination forms Exhibit PW1/2 and Exhibit PW1/3 the Returning Officer has certified that the petitioner personally presented his nomination papers at 2.48 P.M. There is an overwriting in regard to this time and it appears to have been changed from 1.45 P.M. Even if we assume that the nomination papers were presented at 2.48 P.M. then as per the certificate contained in both the nomination papers the petitioner was present before the Returning Officer at that time. When he was present and filed the nomination papers there was no earthly reason for him not to have taken the oath. Moreover, the Returning Officer is not making a correct statement in Court when he stated that the petitioner was not present at the time when his papers were presented to him. Since the petitioner was keen to contest the election and had come to file his nomination papers along with a band of 5000 people in a procession, it is not believable that he would go away without taking the oath. As per order rejecting the nomination paper the Returning Officer has not in so many words stated that the petitioner was not present. All that he said in his order is that oath was not taken before him. Not to take oath is one thing and not to be present is another. A candidate may be present and yet he may refuse to take the oath. It is no one''s case that the petitioner refused to take the oath. The case of the respondent as supported by the Returning Officer is that the petitioner was not present due to which fact his nomination paper was rejected. This stand is falsified by the certificate given by the Returning Officer himself in the nomination forms certifying that the petitioner had personally presented the papers at that very time i.e. 2.48 P.M. on 3.4.1996 when the oath was to be taken. The Returning Officer indeed went out of his way to record a false order on the oath form that oath had not been taken at 2.48 P.M. on 3.4.1996. On the following day while rejecting the nomination papers he reiterated that oath had not been taken forgetting that he had already certified the presence of the petitioner when he signed his endorsement stating that the nomination papers had been personally presented by him at 2.48 P.M. Both the orders, one passed on the oath form and the other rejecting the nomination papers were purposely kept vague and if the petitioner was really not present what was there to prevent the Returning Officer from mentioning in his orders that the candidate was not present. The Returning Officer has admitted his signatures on the certificates in the nomination forms.

In view of the aforesaid discussion, the inescapable conclusion is that the petitioner was present at the time when he filed his nomination papers and took the oath as alleged by him but the Returning Officer for reasons best known to him deliberately rejected his nomination papers improperly.

The question whether nomination papers were filed at 1.45 P.M. or 2.48 P.M., in my opinion, has become immaterial when I am holding that the petitioner was present at the time of filing his nomination papers and that he took the oath. However, I cannot resist observing that it is quite intriguing to notice that in the nomination papers and the oath form the time as mentioned at all the six places has been changed from 1.45 P.M. to 2.48 P.M. by overwriting but the Returning Officer could give no explanation for it even when specifically asked about it though the records were admittedly in his custody and the entries were to be made by him or by his staff. Normally it is not expected that if a wrong entry of time has been made once, the same would be repeated five times. All that can be said is that the cuttings in this regard do not seem to have been made bona fide.

There are yet some other points raised to contend that the conduct of the Returning Officer has not been above board and at various stages there were manipulations. I am dealing with those aspects as well.

After the nomination papers of the petitioner were rejected on 4.4.1996 he immediately applied for certified copies of his nomination papers, oath form, order rejecting his papers and some other documents which were supplied to him on the same day at 4.15 PM. Thereafter, he filed a complaint with the Election Commission on the following day i.e. on 5.4.1996 complaining that he had taken the oath before the Returning Officer but in spite of that the Returning Officer passed an order rejecting his nomination on the ground that the candidate (complainant) had not taken the oath. Exhibit PW1/5 is that complaint. Along with this complaint he attached the certified copies which he had obtained from the office of the Returning Officer. On receipt of this complaint the Election Commission sent a fax message to the Returning Officer asking for his explanation as to whether he had issued a written memorandum to the petitioner in the prescribed proforma in terms of the instructions issued to the Returning Officers at page 64 of the `Hand Book for Returning Officers''. The Commission also required the Returning Officer to send a copy of the same alongwith acknowledgement obtained from the candidate in case that memorandum had been given to him. Exhibit PW2/3 is the copy of the fax message dated 8.4.1996. The Returning Officer then faxed his reply to the Secretary of the Election Commission informing the latter that the petitioner had filed his nomination paper around 2.48 P.M. on 3.4.1996 and after delivering his papers and oath form he left his office immediately without making the oath before him. He also informed the Election Commission that the name of the petitioner was called out many times so that he could be informed about his not having made the oath but he was not found and as such no written memorandum could be handed over. Exhibit PW2/4 is the copy of this reply. The complaint and the reply furnished by the Returning Officer were considered by the Election Commission and the explanation furnished by the Returning Officer was not accepted and as per orders passed by the Election Commission on 9.4.1996 a general warning was issued to the Returning Officer to be careful in future. This warning was issued because according to the Election Commission the Returning Officer was required to send written memorandum at the given address of the candidate i.e. the petitioner which he failed to do so. The Election Commission of India then sent a letter on 17.4.1996 to the Returning Officer stating that he had failed in his duty to send the requisite memorandum to the petitioner in writing at his address available in the office of the Returning Officer. He was warned to be more careful in future. The office copy of this letter is on the file of the Election Commission which was summoned by the petitioner. Interestingly when the Returning Officer appeared in the witness box he was asked whether he received any warning from the Election Commission and his answer was evasive. He stated that he received only Exhibit PW2/3 and he could not say whether he received any other letter from the Election Commission unless he was not aware of any warning having been issued to him. The record from the office of the Election Commission shows that a letter of warning was sent to the Returning Officer and its copy is on the record. The original is not on the record of the Returning Officer. It appears that the Returning Officer did not place this letter on the file after having received the same.

Learned counsel for the petitioner forcefully contended that the certified copies of the documents which were obtained from the office of the Returning Officer were photo copies of the original certified to be true but those copies do not bear the official stamp of the Returning Officer whereas the originals when produced in Court bear the official stamp of the Returning Officer underneath his signatures and, therefore, it was sought to be argued that the Returning Officer had tampered with the record at every stage. This question was specifically put to the Returning Officer and he answered that the certified copies were supplied on 4.4.1996 at 4.15 PM whereas the official seal was put by his Assistants underneath his signatures later on. This could have happened and, at any rate, nothing turns on it.

The Returning Officer while appearing as RW4 tried to justify his action of rejecting the nomination papers of the petitioner saying that the name of the petitioner was called out several times to take oath but he did not turn up and, therefore, it was rejected. While deciding the other election petition, I have already held that the names of the candidates were never called out and this story is merely an afterthought coined by the Returning Officer only to justify his action before the Election Commission. The memorandum Exhibit P1 (Exhibit RW4/7 in Election Petition 6 of 1996) is said to have been prepared to be issued to the petitioner but according to the Returning Officer since the petitioner was not present it could not be served on him. A look at this memorandum would show that it does not bear any date nor does it bear any number. It only contains the name of the petitioner. It has not even been signed by the Returning Officer and on the back side of this memorandum is a report of the peon who is said to have called out the name of the petitioner on 3.4.1996. The names of the candidates who were not present could have been called out but it is against normal practice to obtain a report of the type which the Returning Officer claims to have obtained from the peon. The fact that the name was called out and the petitioner did not appear could have been recorded in the order. The Returning Officer got these reports prepared subsequently when the Election Commission called his explanation by sending him a fax message dated 8.4.1996 Exhibit PW 2/3. Petitioner has stated as PW1 that he was present outside the office of the Returning Officer till 5 P.M. and no names were ever called. Respondent has produced RW3 who states that the names of Suresh Kumar, Yogender and the petitioner were called and that no other name was called while the Returning Officer has stated that two other names of Om Parkash and Jag Ram were also called. Apart from this discrepancy, the demeanour of RW3 was such that no reliance can be placed on his testimony. No reliance can be placed on the testimony of the Returning Officer either. He has manufactured the memorandums as discussed above and his statement cannot be relied upon implicitly. The peon has not been examined as a witness and the date on the report is also not decipherable whether it is 3.4.1996 or 8.4.1996. Even the learned counsel for the respondent conceded that no reliance could be placed on the memorandum Exhibit P1. I am satisfied that this memorandum and other memorandums were prepared after the Returning Officer received a message from the Election Commission on the complaint filed by the petitioner to justify the improper rejection of his nomination papers despite his having taken the oath. The petitioner, as I have already held, was present and took the oath and thus no question of serving any memorandum arose.

In view of the aforesaid discussion, it is held that the nomination papers of the petitioner were improperly rejected. Issue No. 3 is consequently decided in favour of the petitioner and against the respondent.

RELIEF

In view of my findings on issue No. 3 in both the cases, the petitions are allowed with costs and the election of the respondent declared void.

Before parting I cannot resist observing that the conduct of the Returning Officers in the present case has been most reprehensible and cannot but be deprecated. In a country like ours where democracy has taken its roots it is not only the purity of the electoral system which is a must but the 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. 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. A copy of this judgment be sent to the Election Commission of India for information.