- (1.) The appellant is the original election petitioner whose Election petition No. 14 of 1994 came to be dismissed by A. K. Mathur, J. of the High court of Madhya Pradesh at Jabalpur, He has, therefore, preferred this appeal against the dismissal of his election petition. The brief facts giving rise to the appeal may be stated as under: The elections for the 10th Vidhan Sabha, State of Madhya Pradesh, came to be notified and the last date of submission of nomination forms was fixed as 30/10/1993. Appellant 1 collected the nomination form on 28/10/1993 and got it filled up on the next date. He also collected the voters' list on 29/10/1993 and submitted the form on 30/10/1993 to the Returning Officer. His proposer was shown to be one Firoz Khan of the same constituency i. e. 242, Berasiya Assembly Constituency. The Returning Officer after verifying the form as required by Ss. (4 of Section 33 of the Representation 231 of the People Act (hereinafter called the Act) accepted the same and entered the particulars thereof in the register as required by the Rules. The scrutiny of the nomination papers was fixed on 1/11/1993 and the last date for withdrawal of the forms was 3/11/1993. On the date of the scrutiny, the form of Appellant 1 came to be rejected and an order to that effect was passed as required by Ss. (6 of Section 36 of the Act. On 2/11/1993 the appellant met the Collector and protested against the illegal rejection of his nomination form. However, since there was no remedy available to him at that stage he had no alternative but to wait till the election was over. The polling took place on 24/11/1993 and the election results were declared on 30/11/1993. The respondent, L. N. Sharma was declared elected. Thereafter, the appellant along with Jodha Ram Gurjar (who had withdrawn his nomination before 3/1 1/1993 jointly filed an election petition on 11/1/1994 which was numbered as E. P. No, 14 of 1994. The principal question raised in the election petition was that the appellant's nomination form was wrongly and illegally rejected by the Returning Officer. In this connection the contention of the appellant was that the serial number of his proposer Feroz khan was, initially, wrongly mentioned as 136 but before the form was submitted the mistake was corrected to 138 by converting the figure 6 into 8. In support of this contention he contends that he had taken out a photocopy of the nomination form on 29/10/1993 and, therefore, on the date of scrutiny of the nomination forms the proposer's number was shown as 138 and not 136 and, therefore, the Returning Officer was not justified in rejecting the same. In other words, according to the said appellant even though he had initially mentioned the figure as 136 in the nomination form he had corrected it to 138 before he submitted the nomination form to the Returning officer and, therefore, the Returning Officer was not correct in rejecting the nomination form on the ground that the name of the proposer did not appear at Serial No. 136. To prove this contention of illegal and improper rejection of his nomination paper. Appellant I, besides examining himself, also called the co-petitioner Jodha Ram and the proposer Feroz Khan to the witness stand. The returned candidate on the other hand contended that the nomination form as submitted by the said appellant was defective and that the correction was perhaps made after the scrutiny and rejection of the nomination paper and, therefore, the learned trial Judge was right in taking the view that the correction was subsequent to the rejection of the nomination form. He contended that the correction, therefore, appeared to be a subsequent interpolation. The learned Judge also took the view that the rejection of the nomination form was neither illegal nor improper and that the election petition was wholly misconceived and unsustainable. In that view of the matter the learned Judge dismissed the election petition and hence this appeal.
(2.) There is no doubt that the appellant had submitted his nomination form on 30/10/1993. In the nomination form the proposer's number was initially written as 136 but was corrected by converting the figure 6 into 8 to 138. Was this correction made before the submission of the nominationpaper or some time thereafter i. e. after it came to be rejected by the returning Officer As pointed out earlier, besides himself the appellant relies on the evidence of Appellant 2 and the proposer Feroz Khan. There can be no doubt that all the three witnesses examined on behalf of the appellants are highly interested witnesses for the reason that Appellant 2 jodha Ram had joined hands with Appellant 1 in filing of the election petition. Their evidence must, therefore, be scrutinised with great care. The successful candidate examined himself as RW 1 and RW 2 Shri Ram maheshram, the Assistant Returning Officer (the Returning Officer then not being available). The learned trial Judge was not prepared to place implicit reliance on the testimony of the three witnesses Public Witness 1, Public Witness 2 and Public Witness 3. He did not uphold the contention of the appellants that the nomination form was corrected before it was submitted and that there was no interpolation. The learned trial Judge has gone to the length of holding that the appellant was guilty of tampering with an important official document. The Assistant returning Officer has deposed that after the forms were submitted, the candidate and the proposer were called to remain present at the time of scrutiny and even though their names were announced on the microphone, neither of them turned up and, therefore, after examining the forms by himself, he rejected the nomination paper since the name of the proposer did not appear at Serial No. 136 in the voters' list.
(3.) The learned counsel for the appellants took us through the electoral roll as well as the documentary evidence and contended that the learned judge had overlooked certain important and significant aspects of the evidence placed on record. Firstly, he contended that before he submitted the nomination form he had taken out a photocopy and the same was appended to the petition. He says that this photocopy belies the contention that the figure 136 was changed to 138 after the rejection of the nomination paper. There is no other evidence except that of the appellants and the proposer in this behalf. In the first place it is difficult to understand why the Returning officer should reject the nomination paper if the name of the proposer and the serial number are correctly recorded. Appellant 1 as well as his proposer say that they were not called before the rejection of the nomination paper. Now, in the ordinary course, official action must be presumed to have been done in accordance with the rules and the procedure. Secondly, even on the statement of Appellant I, he and his proposer went to the place of scrutiny at about 3. 00 p. m. Thirdly, it is an admitted fact that he did not raise any objection when his nomination was rejected on 1/11/1993. In ordinary course if he and his proposer were present at the time of scrutiny and their names were not announced on the microphone we would expect them to react by enquiring of the Returning Officer why his name was not announced at all. The evidence of RW 2 shows that the names of the candidates who had submitted the nomination forms were announced one after another and when his name was announced, neither he nor his proposer turned up before the Returning Officer. If he and his proposer were in fact present they would have responded to the call and if despite their presencehis nomination form was rejected, there would be any number of independent witnesses available to corroborate his version, since even according to him the room was full. Therefore, the conduct of the appellant and his proposer does not seem to be natural; more so because both the appellant and his proposer are lawyers. They certainly would have reacted sharply if their names were not called out when the names of all others were called out. This unnatural conduct leads one to believe that the appellant's contention that his name was deliberately not announced as the Returning officer had made up his mind to reject his nomination form, does not appear to be correct. Merely because he produced in court a photocopy of the corrected nomination form cannot advance his case. He must satisfy the court that the photocopy was taken out before the rejection of the nomination form. No doubt he has said so in his evidence but it is difficult to believe his version for the simple reason that if the form had been submitted after correction and the photocopy was taken out in advance, his conduct would have been totally different at the time when his name was not announced at the scrutiny of the nomination forms on 1/1 1/1993. Therefore, on the totality of evidence it is difficult to hold that the learned Judge committed any error in the appreciation of evidence placed before him. We do not think it necessary to express any opinion as to whether the appellant was guilty of tampering with the document at any point of time after its submission because that is a matter for investigation. However, we think that on the totality of evidence before the court, the view taken by the High court is a plausible view and we would not be justified in interfering with it.;