Ranganath Misra, J. - (1.) The appellant was the Returning Officer in the by-election to Constituency No. 78 Fatehabad Assembly Constituency of Haryana State for which the election schedule was published on November 23, 1983. The last date for filing of nomination papers was November 30, 1983, and date of poll was scheduled for December 23, 1983.
(2.) Nomination papers were to be scrutinised on December 1, 1983. During scrutiny the appellant rejected nomination papers of two candidates being Mani Ram Chhapola and Raj Tilak. After the election Lila Krishan was declared elected and thereupon an election petition was filed under the Representation of the People Act, 1951 ('Act' for short) before the High Court of Punjab and Haryana at Chandigarh being Election Petition No. 1 of 1984 challenging the election of Lila Krishan.
(3.) In the election petition it was alleged that the rejection of the two nomination papers was without any justifying ground and on account of improper rejection of those nomination papers, the election was liable to be set aside under Section 100(1)(c) of the Act. At the trial of the election petition the successful candidate who was a respondent in the High Court examined the appellant as R.W.3. The appellant had rejected the nomination papers on account of wrong indication of the proposer's serial number in the electoral roll of the respective nomination papers. The evidence of the appellant was analysed by the High Court and the learned Judge came to hold: "In Ex.P.1 (nomination paper of Mani Ram Chapola), the name of the proposer is tick marked. Similarly, in Ex. P.6 (nomination paper of Raj Tilak) the name of the proposer is again tick marked. In view of the express stand taken by Shri Umed Singh Rao, RW.3 (appellant), the name could not be tick marked unless found correct in accordance with the entries in the electoral rolls. After the name of the proposer was located in the electoral roll, there was no question of not finding serial numbers of the votes of both these proposers in the electoral rolls. The order of rejection passed in the case of Shri Raj Tilak has been produced in paragraph 3 above. The copy of order of rejection of the nomination paper of Shri Mani Ram Chapola is Ex. P.3 and reads as:- 'S.No. of the vote of proposer does not tally with S.No. mentioned in voter list. Hence rejected'. This also goes in line with the process of tick marking as stated by Shri Umed Singh Rao RW. 3 and also admitted by the respondent (returned candidate). When this was the situation, that the name was found but it did not tally with the electoral roll number mentioned in the nomination paper the nomination paper could not be rejected as the Returning Officer could find the particulars of the proposer with the help of the election staff assisting him. During the course of the statement, Shri Umed Singh Rao tried to change the position about the order by saying:'I rejected the nomination paper of Shri Mani Ram Chapola as the serial number of the electoral roll of his proposer Shri Brij Bhushan when compared with the relevant electoral roll did not contain his name. Similarly, the nomination paper of Shri Raj Tilak was rejected. because the vote number of his proposer Shri Upender Kumar as mentioned in the nomination paper when compared with the electoral roll did not contain his name there. 'There is a marked change in the orders passed as recorded on the nomination papers on 1st of December, 1983 and what Shri Umed Singh Rao, Returning Officer, tried to say in his statement. reproduced above. When the orders dated 1st of December, 1983 are read in the light. of the practice of tick marked adopted by Shri Umed Singh Rao, these convey to mean that the name which was tick marked was found, but serial number of the vote of the proposer did not tally with the voters list. The statement conveys the meaning that the serial number of the vote of the proposer mentioned in the nomination paper, his name could not be found in the electoral roll. This apparently contains a different meaning altogether. Shri Umed Singh Rao cannot be permitted to add twist to the original orders recorded on the 1st of December, 1983 to change their sense and meaning." "Shri Umed Singh Rao R.W.3 cannot be permitted to add an explanation to the orders which he passed on 1st of December, 1983 to change the sense of the orders passed by him to reject the nomination papers Exhibits P. 1. and P.6 at the stage of the trial of the petition. When once Shri Umed Singh Rao, Returning Officer, R.W.3 had found the name of the proposer of the electoral roll and had tick marked it, then the defect, if any, remains of unsubstantial character, because against the name he could find a correct electoral roll number, which would have tallied with the original nomination paper, without tampering. The nomination papers Exhibits P.1 and P.6 were, therefore, improperly rejected. The nomination papers of Sarvshri Mani Ram Chapola and Raj Tilak Exhibits P. 1 and P.6 respectively could not be rejected, as there was no non-compliance with Section 33(4) of the Act. As a matter of fact Section 33(4) of the Act had been complied with and these two nomination papers were in order when these were filed by Shri R. C. Sharma, Assistant Returning Officer. These were tampered with after the examination of the nomination papers by the candidates or their agents on 1st of December, 1983, when those were with Shri Umed Singh Rao, Returning Officer, R.W.3. His conduct in either tampering with the nomination papers himself or manipulating the tampering in these nomination papers was guided by ill-motives. I say so because Shri Umed Singh Rao was not a new man in election matters. He had acted as Assistant or Returning Officer in elections five or six times prior to that. This conduct of such a responsible person entrusted with the duties of a returning officer. in the election system, which is (the) very foundation of democracy is most deprecable. From whatever angle it is viewed, the conclusion, which I arrive at is that the nomination papers Exhibits P. 1 and P.6 of Shri Mani Ram Chapola and Shri Raj Tilak were improperly rejected. In view of this the election petition is accepted with costs and the election of Shri Lila Krishan respondent from the 78 Fatehabad Assembly constituency to the Haryana Legislative Assembly held on 23rd of December, 1983 is declared void. As the conduct of Shri Umed Singh Rao, Returning Officer, was not straightforward but was motivated, half of the costs shall be shared by him.";