ORDER
1. General elections to the Haryana Legislative Assembly were held in May/June, 1987. Smt, Jasma Devi respondedwas elected on the ticket of the Indian National Congress (I) (for short 'Congress (I)') from 79 Adampur Constituency. Her election has been called in question by the petitioners on the ground that the nomination paper of Azad Singh petitioner 2 was improperly rejected. Dharampal Singh petitioner 1 was a candidate for election from the same constituency on Lok Dal(B) party ticket, but he was defeated by the respondent by a margin of nearly 10,000 votes. Besides petitioners 1 and 2, Dalbir petitioner 3, is an elector from the same constituency.
2. The last date for making nominations was May 25, 1987. Azad Singh presented his nomination paper Ex.P.W. 2/1 before the Returning Officer. Since he was an illiterate person, he affixed his left thumb-impression on Ex.P.W. 2/1 and the same was attested by the Returning Officer. The scrutiny of the nomination papers took place on 26-5-1987. The nomination paper of Azad Singh (Ex.P.W. 2/1) was rejected by the Returning Officer vide his order Ex.P.W. 2/1-C. The order is to the following effect : --
' Checked up and rejected because the Part No. and Serial No. of electoral roll number of the contesting candidate does not tally with the list as filled in by the candidate in the nomination paper.''
3. The petitioners contend that when Azad Singh filed his nomination paper on 25-5-1987 before the Returning Officer, he being illiterate, disclosed his identity to the Returning Officer and thumb-marked the nomination paper in his presence. The Returning Officer, on being satisfied as to his identity, attested his thumb-impression under his own signatures as required under Rule2(2)(b) of the Conduct of Election Rules, 1961 (for short 'the Rules'). The Returning Officer on receiving the nomination paper of Azad Singh indicated to him that the nomination paper was 'all right' and thereafter the Returning Officer administered the prescribed oath to him and issued the receipt of security, certificate of oath and notice for scrutiny which was to take place on 26-5-1987. The Returning Officer under Section 33(4) of the Representation of the People Act, 1951 (for short 'the Act') is mandatorily required tosatisfy himself that the name and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. Where the name and electoral roll number do not tally, it is the statutory duty of the Returning Officer to have the same corrected under the proviso to Section 33(4) of the Act. It was, therefore, illegal and improper on the part of the Returning Officer not to carry out his statutory duty and later on to make his own omission the basis for rejecting the nomination paper. The Returning Officer was debarred from rejecting the nomination paper on such a ground. Section 36(4) of the Act gives a mandate that the nomination paper shall not be rejected on any defect which is not of a substantial character. The part number of the electoral roll, namely 102, was correctly mentioned in the nomination paper. Only the serial number was wrong. The said part of the electoral roll contained t he names of only 726 electors and there was only one elector by the name of Azad Singh appearing at Sr. No. 231. The Returning Officer could, therefore, have easily located the name of Azad Singh petitioner No. 2 from the electoral roll without any difficulty.
4. It is further contended that the order of the Returning Officer shows that even the part number of the electoral roll was not correctly mentioned in the nomination paper. The petitioners have ventured to speculate that the Returning Officer was misled because on page 3 of the electoral roll, Part No. 102, on which the name of Azad appeared at Sr. No. 231, the part number on the top was misprinted as 120 instead of 102. Right below this misprint, in the second column at page 3, the name of Azad son of Siri Chand, petitioner No. 2, was entered at Sr. No. 231. From this, it was inferred that the Returning Officer found the name of Azad Singh in the electoral roll, whose identity he himself had verified.
5. It was further contended that the Returning Officer improperly rejected the nomination paper of Azad Singh inasmuch as he did not apply his mind before passing the order of rejection Ex.P.W. 2/1-C. Inspite of the fact that the part number of the electoral roll was correctly mentioned in the nomination paper as 102, the same was also described by the Returning Officer asincorrectly mentioned. The petitioners, thus, prayed that the election of the respondent, the returned candidate, should be declared to be void.
6. The respondent filed her written statement. It was pleaded therein that the; verification of the election petition is not in accordance with law, that the petitioners have failed to furnish concise statement of material facts in support of the allegations made in the petition, and that the allegations are vague and indefinite. As regards the averment in the petition that when Azad Singh presented his nomination paper, his name and particulars as entered in the nomination paper were verified by the Returning Officer from the electoral roll and when his identity was established, he attested the thumb-impression of Azad Singh on the nomination paper affixed in his presence, the respondent denied the same and stated that the petitioner should be put to strict proof of these averments. Rejection of nomination paper of Azad Singh on the date of scrutiny by the Returning Officer was admitted. It was, however, maintained that the order of rejection Ex.P.W. 2/1-C is in accordance with law. The nomination paper was not rejected illegally or improperly as alleged. It was stated that Azad Singh was not present at the time of scrutiny. He did not assist the Returning Officer in ascertaining his correct particulars at the time of scrutiny. No body raised any objection to the nomination of Azad Singh The Returning Officer rejected his nomination paper suo motu. It was the duty of Azad Singh to take necessary steps to be present at the time of scrutiny either personally or through his agent. As his nomination paper was not in accordance with the provisions of the Act, the Returning Officer rightly rejected the same. It was denied that the identity of Azad Singh was established. It was, thus, maintained that the very identity of Azad Singh was not established as per the electoral roll. The Returning Officer found that the particulars in the nomination paper were such that with those particulars the name of the candidate could not be traced and there was nobody to assist him. It was asserted that the petitioners were now stating certain facts which were not pointed out by anybody to the Returning Officer at the time of scrutiny. It was maintained that the Returning Officerapplied his mind before rejecting the nomination paper of Azad Singh. It was, thus, prayed that the petition being without any merit should be dismissed.
7. The petitioners filed their replication. They reiterated the facts already mentioned in the petition. They tried to meet the legal objections raised by the respondent. They controverted what has been stated in the written statement. They also introduced one or two new averments to which reference shall be made in the later part of the judgment.
The pleadings of the parties gave rise to the following issues which were framed by me vide my order dt. 21-9-1987 :-
(1) Whether the nomination paper of petitioner 2 Mr. Azad Singh was improperly rejected? OPP
(2) If issue No. (1) is proved, whether the election of the respondent is liable to be declared void? OPP
(3)..Relief. .
Evidence was led by both the parties in support of their pleas. It is, however, interesting to note that Azad Singh petitioner 2 himself did not appear in the witness box. Dharampal Singh petitioner No. 1, who appeared as P.W. 1, stated that he was not present when Azad Singh filled in his nomination paper and filed the same with the Returning Officer. So, there is no evidence to support the averment made in the petition that the Returning Officer checked the name, electoral roll number etc. of Azad Singh as entered in the nomination paper with the electoral roll, established his identity and then attested his thumb-impress ion on the nomination paper Ex.P.W. 2/1, which was affixed in his presence. Shri O.P. Langayan, the Returning Officer, appeared as P.W. 2. He stated that the nomination paper Ex.P.W. 2/1 was presented before him by Azad Singh in person. He asked Azad Singh to tell the name of his village, his father's name, the name of the constituency, vote number and part number of the electoral roll in which his name was entered as a voter. After he gave this information, he asked his. staff to check the same with the entries made in the nomination paper of Azad Singh. The members of his staff told him that the entrieswere correct and then his name was entered in the list of candidates who had filed their nomination papers. Azad Singh affixed his thumb-impression at point P.W. 2/1-A on the nomination paper in his presence and he attested the same with his signatures and date, which are at point P.W. 2/1-B. In cross-examination he stated that the officials whom he had asked to check the particulars in the nomination paper of Azad Singh at the time he filed the same before him were the Assistant Returning Officer and the Election Kanungo. Their names are Shri Kaushik, the then Tehsildar, Hissar, and Mr. Rai Sahib, Election Kanungo, respectively. At the time the nomination paper Ex. P.W. 2/1 was presented before him, he himself did not cross-check the serial number and part number of the electoral roll where the name of Azad Singh as a voter was entered to find out whether the serial number and part number of the electoral roll mentioned by Azad Singh in his nomination paper Ex.P.W. 2/1 were correct or not. He had asked his staff to check the same. They told him that the above particulars mentioned in the nomination paper were correct He could not say for certain whether it was the Assistant Returning Officer or the Election Kanungo who told him that the particulars mentioned in Ex.P.W. 2/1 were correct.
8. Thus, there is no evidence that the name, the particulars like the electoral roll number and serial number as elector of Azad Singh as mentioned in the nomination paper were checked with the electoral roll at the stage of presentation of the nomination paper Ex.P.W. 2/1. Its perusal shows that the figures, '0' and '2' of 102 in the column 'Part Number' of electoral roll are the result of overwriting. At what stage this overwriting was done has not been brought to light during the course of evidence. Azad Singh admittedly is an illiterate person. He thumb-marked his nomination paper Ex.P.W. 2/1. He was seeking election as an independent candidate. Had he appeared in the witness-box, it could be elicited from him as to who was the person who scribed the entries in his nomination paper. At any rate, the figure '102' against the column 'Serial Number' in the electoral roll as given in Ex.P.W. 2/1, is also wrong. Reference to the electoral roll, Part No. 102Ex-P.W. 1/3, shows that the name of one Naraini Devi wife of Ram Bilas, aged 54 years, appears against Sr. No. 102. It is, thus, obvious that the entries in the nomination paper Ex.P. W. 2/1 had not been checked when the same was presented by Azad Singh and his thumb-impression was attested by the Returning Officer.
9. The learned counsel for the petitioners refers to the provisions of Sub-section (4) of Section 33 and the proviso thereto. He contends that it is the duty of the Returning Officer, on presentation of a nomination paper, to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. It is mentioned in the proviso that no misnomer or inaccurate description or clerical error in the electoral roll or in the nomination paper in regard to the electoral roll numbers of such persons shall affect their full operation. The Returning Officer is enjoined upon to permit any such inaccurate description or' clerical error to be corrected and where necessary to overlook the same. He also invited my attention to Rule 2(2)(b) of the Rules to the effect that for the purposes of the Act and the Rules a person, who is unable to write his name, shall, unless otherwise specifically provided in the Rules, be deemed to have signed an instrument or paper if he has placed a mark on such instrument or paper in the presence of the Returning Officer and such officer on being satisfied as to his identity has attested the mark as being the mark of that person. He further pointed out that the nomination paper Ex. P.W. 2/1 is in Form 2-B prescribed by the Rules for the purpose, and had been duty presented before the Returning Officer by Azad Singh personally. He, thus, contended that the Returning Officer should be presumed to have checked the entries in the nomination paper Ex.P.W. 2/1, but in case he had failed to do the same, he had not discharged his duties in accordance with law. As already observed, from the evidence on the record it is clear that the Returning Officer did not check the entries in the nomination paper Ex. P. W. 2/1 when it was presented before him and when he attested the thumb-impression of Azad 'Singh. However, this failure of duty on thepart of the Returning Officer cannot adversely affect the election of the respondent. In Brij Mohan v. Sat Pal, AIR 1985 SC 847, the following observations are worth notice at this stage : --
'The Hand Book for Returning Officer, issued by the Election Commission of India, says what the Returning Officer and the Specified Assistant Returning Officer should do as each nomination paper is filed It says that the Returning Officer or Specified Assistant Returning Officer is not to hold a formal scrutiny of any nomination paper at t his stage. If the candidate is an elector in the constituency concerned, the Returning Officer or the Specified Assistant Returning Officer should compare the entries in the nomination papers with the entries in the electoral roll relating to the serial number and the name of the candidate and the proposer...... The instruction reiterateswhat is contained in the proviso to Section 33(4) of the Act and further states that the points which the Returning Officer or Specified Assistant Returning Officer are required by Section 33(4) to be disposed of should be invariably disposed of at the time f the receipt of the nomination paper and that it will be improper for the officer at the time of scrutiny to reject the nomination paper for defects which could have been cured at the earlier stage of presentation of the nomination paper. It was conceded by Mr. Kacker, learned Senior Advocate, appearing for the respondent, that the enquiry at the stage of receipt of nomination paper is what he called a peripheral one and that no legal consequence flows from the omission on the part of the Returning Officer or Specified Assistant Returning Officer to carry out his responsibility at the stage of receipt of the nomination paper.'
10. So, we have to pass on to the stage of scrutiny of the nomination papers on 26-5-1987. The evidence which has come on the record on both sides shows that Azad Singh was not present at the time of scrutiny. No one raised any objection to his nomination paper. In fact, the Returning Officer himself rejected the same. P.W. 1 Dharampal Singh states that Azad Singh reached the office of the Returning Officer after the scrutiny of nomination papers was over and his namehad already been rejected. No one present before the Returning Officer raised any objection against the nomination paper of Azad Singh. On the date of scrutiny pf the nomination paper, he had not seen the nomination paper of Azad Singh. When the nomination paper of Azad Singh was scrutinised by the Returning Officer he was present. The Returning Officer found some numbers mentioned in his nomination paper to be wrong and that is why he rejected it. Azad Singh was not a candidate of any political party. He is a Harijan. He was sponsored by Harijans' Panchayat but was an independent candidate. Durra Ram R.W. 7 stated that when the nomination paper of Azad Singh was taken up for scrutiny by the Returning Officer, he enquired whether Azad Singh was present. Since he was riot present inside the office he asked the peon to call his name in loud voice outside his office. This was done twice but Azad Singh was hot present. The Returning Officer tallied the entries in the nomination paper with the electoral roll and he could not find the name of Azad Singh therein. He enquired whether any agent or a counsel could assist Him in scrutinising the entries in the nomination paper of Azad Singh with the electoral roll but no one came forward. Ultimately, he rejected his nomination paper. No one raised any objection against the nomination paper of Azad Singh at the time of its scrutiny by the Returning Officer. Pirthi Singh R.W. 8 stated that the Returning Officer rejected the nomination paper of Azad Singh as he could not find his name in the electoral roll Before rejecting the nomination paper of Azad Singh, the Returning Officer asked those present at the time of scrutiny whether any one raised any objection to any nomination paper. None raised any objection. He then asked that the name of Azad Singh should be called in loud voice outside his office to ensure his presence. His name was called twice but Azad Singh was not present. Azad Singh was also not represented by any counsel or agent.
11. Even Shri O.P. Langayan, Returning Officer, P.W. 2 has admitted in cross-examination that nobody raised any objection to the nomination paper of Azad Singh at the time of scrutiny. He did call out the name of Azad Singh when his nomination paper came up for scrutiny before him. Similarly, he called out the names of all other candidates as and when their nomination papers came up for scrutiny before him.
12. It is in the statement of P.W. 2 that he was the Returning Officer of two constituencies, namely, Adampur and Girahe. On the date of scrutiny, he scrutinised the nomination papers filed by the candidates of both these constituencies. Durra Ram R.W. 7 has stated that the scrutiny of nomination papers of Girahe constituency started at 11.00 a.m. and finished at about 1 p.m. Then the scrutiny of the nomination papers of the Adampur constituency started. During the scrutiny of the nomination papers of the Adampur constituency about 40/50 persons were present inside the office of the Returning Officer from 1.00 p.m. to 3.00 p.m. It is averred in the petition that there were in all 26 candidates who filed their nomination papers, out of which the nomination paper of Azad Singh was rejected on the date of scrutiny. The number of nomination papers filed by different candidates from the. Girahe constituency has not come on the record but it is clear that the Returning Officer spent two hours for scrutinising the nomination papers of each of the two constituencies.
13. In view of the fact that at the time of the scrutiny of the nomination papers Azad Singh was not present, neither he nor any one on his behalf rendered assistance to the Returning Officer by mentioning his correct serial number in the electoral roll and the fact that the Returning Officer scrutinised a large number, of nomination papers filed by candidates who were seeking election from the two constituencies which were in the charge of the Returning Officer, it is to be seen whether rejection by him of the nomination paper of Azad Singh vide order Ex.P.W. 2/1-C can be said to be improper and whether the defect in the nomination paper which did not give the correct, vote number of Azad Singh to locate it from the electoral roll was of a substantial nature or not In Brij Mohan's case, (AIR 1985 SC847) (supra), the filial Court has observed :--
'It is not possible to say generally and in the abstract that all errors, in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defectsof a substantial character. They would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the material placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll If that is not the case, he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency.
14-15. In Brij Mohan's case, (AIR 1985 SC 847) the Returning Officer' compared the admittedly inaccurate particulars given in the nomination paper with those entered in the part of the voters' list mentioned in the nomination paper and found them to be incorrect. He asked the concerned candidate to show his name himself and that of his proposer in the electoral rolls but the candidate was unable to do so. So, he rejected the nomination paper.
16. In Lila Krishan v. Mani Ram Godara, AIR 1985 SC 1073, the final Court observed that the scope of scrutiny is obviously to verify the contents of the nomination paper with a view to ascertaining whether the form is in order and what is required to be complied with by the election law has been duly complied with. It was further emphasised that the Supreme Court has repeatedly held that election proceedings are strict in nature and what is required to be performed in a particular manner has to be done as required and substantial compliance has ordinarily no place while dealing with the Act or the Rules made thereunder. That is why an exception has been made by inserting Sub-section (4) of Section 36 of the Act. Their Lordships further observed thus -
'It is not the submission of Mr. Kacker and rightly so, that even if the Returning Officer has not been in a position to identify the proposer with reference to the serial number in the electoral roll, he can accept the nomination paper to be valid. If that be so, it is the obligation of the Returning Officer tocomply with the requirements of the law by satisfying himself that the name of the candidate has been proposed by a voter entitled to propose. The proviso to Section 33, Sub-section (4), runs thus-
'Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood and the Returning Officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral rollor in the nomination paper shall be overlooked.'
The contents of the aforesaid proviso and the provisions of Sub-section (4) of Section 36 when read together make it clear that the mistake with reference to the serial number was such an error in this case which could be corrected Under Section 36(1) of the Act, on the date fixed for scrutiny of nominations election agents, one proposer of each candidate and one other person duly authorised in writing by each candidate are entitled to appear before the Returning Officer, and such persons are entitled to reasonable facilities for examining the nomination papers. The purpose of making such provision is to facilitate scrutiny. The presence of candidate, his election agent and another person acquainted with the constituency would certainly facilitate the process of scrutiny. Defects covered by the proviso to Section 33(4) could easily be resolved if people authorised under Section 36(1) of the Act are present at the time of the scrutiny. What could be resolved or overlooked in case proper steps were taken in due time has become a major issue leading to rejection of nomination papers in the instant case mainly on account of the absence of the candidates,their election agents or persons interested in them at the time of scrutiny. No one was available, for instance, when the Returning Officer took up the nomination paper of Mani Ram Chhapola, to indicate to the Returning Officer that his serial number in the electoral roll was 26 and not 126. If this had been pointed out and on summary enquiry the Returning Officer was satisfied that it was mistake, clerical in nature, and the identity of Brij Bhushan was not in dispute, there would have been end of the matter. If the correlation has not been made and the Returning Officer has no assistance to fix up the identification it cannot be said to be a defect not of substantial character. We reiterate that it could not be a statutory obligation of the Returning Officer to scrutinise the electoral roll for finding out the identity of the proposer when the serial number turns out to be wrong. But if interested and competent persons point out to the Returning Officer that it is a mistake, it would certainly be his obligation to look into the matter to find out whether the mistake is inconsequential and has, therefore, either to be permitted to be corrected or to be overlooked.
As a result of scrutiny, nomination papers are either accepted or rejected. Once a nomination paper is rejected, the candidate loses his opportunity to contest and is kept out from the electoral fray. Every genuine candidate is expected to be very much interested in ensuring clearance of his nomination paper at the stage of scrutiny. It is indeed surprising that before scrutiny was done and the nomination papers were accepted by the Returning Officer, the two candidates and people interested in them went away from the place of scrutiny and did not remain available to the Returning Officer. In the circumstances, if the nomination papers have been rejected for mistakes in the nomination papers it is the candidates themselves who have to thank their lot and no mistake can be found with the Returning Officer. We may not be understood to say that a mistake of the type if properly clarified would not be unsubstantial in character. But if the Returning Officer is not in a position to correlate and identify the proposer, the mistake would indeed be not one which can be covered by Sub-section (4) of Section 36 of the Act.'
17. In view of the above authoritative pronouncements when we read the order Ex.P.W. 2/1-Crejecting the nomination paper of Azad Singh passed by the Returning Officer coupled wit h the evidence referred to above, the imperative conclusion, in spite of some contentions raised by the learned counsel for the petitioners to which reference shall be made later is that the Returning Officer could not find the name of Azad Singh at serial number 102 of the relevant part of the electoral roll No assistance was available to him to find out the correct part number of the electoral roll and the serial number of Azad Singh therein. He was over-worked as he had to carry out the scrutiny of the nomination papers of two constituencies. Scrutiny of nomination papers of Girahe constituency had been carried out by him by spending two hours and then he had taken up the scrutiny of the nomination papers of Adampur constituency. Since he could not find the name of Azad Singh at the serial number of the electoral roll mentioned in the nomination paper, he rejected the same. In the given circumstances, it cannot be said that the defect in the nomination paper was of an unsubstantial nature.
18. As a result, the assertion that the nomination of Azad Singh was improperly rejected has to be brushed aside but for the statement of Shri O.P. Langayan, Returning Officer, P.W. 2, to which reference is made in the following paragraphs.
19. Shri O. P. Langayan P.W. 2 sprung a surprise when he made a statement in this Court to the effect that he had seen Part No. 102 of the electoral roll of the constituency and that the name of Azad Singh was entered therein at Sr. No. 231 at page 3 thereof. At this, the learned counsel for the petitioners put the following question to him which was disallowed by me on an objection raised by Mr. H. L. Sibal, Senior Advocate, appearing on behalf of the respondent :--
'I put it to you that the part number of the electoral roll in Ex.P.W. 2/f is correct, and in spite of this you have mentioned in your order Ex.P.W. 2/1-C that the part number of the electoral roll so mentioned in Ex. P. W. 2/1 is wrong, Can you explain the reasons for the same?'
The next question put by the learnedcounsel for the petitioners was the following and the same was allowed : --
'When you did not find the name of Azad Singh at Serial No. 102 in Part No. 102 of the electoral roll as mentioned by him in his nomination paper Ex.P.W. 2/1, did you look for his name against other serial numbers in the same part of the electoral roll?
P.W. 2 answered this question in the affirmative and said, 'yes'. The learned counsel for the petitioners then put the next question in the following form : --
'Please tell me whether you found his name against any other serial number in this part of the electoral roll if so, at what serial number it was?'
P.W. 2 answered this question thus-
'I found his name at Serial No. 231 of this part.'
19A. The learned Counsel for the respondent rightly contended that the above answers of the Returning Officer to the questions put by the learned counsel for the petitioners bring out a version altogether-different from what is given in the contents of his order Ex.P.W. 2/1-C. In his cross-examination P.W. 2 admitted that he did not mention in his order Ex. P.W. 2/1-C that the name of Azad Singh figured at Sr. No. 231 in the relevant part of the electoral roll. He stated that he was not bound by law to mention in his order that he had found his name at a serial number other than that mentioned by him in the nomination paper Ex.P.W. 2/1 in the relevant part of the electoral roll.
20. Mr. Sibal contends that by making the above statement Shri O. P. Langayan P.W. 2 has made a deliberate attempt to turn the tables in favour of the petitioners and to ensure that the election of the respondent, the Returned candidate, is declared void What he means by his above statement is that in spite of his having found the name of Azad Singh against the correct Sr. No. 231 he neither allowed correction of the same nor he overlooked this clerical mistake. Instead, on the basis of this defect of unsubstantial nature he rejected the nomination paper Ex.P.W. 2/1. He submits that P.W. 2 has deliberately made this false statement to render illegal and bad his order Ex.P.W. 2/1-C.
21. Mr. Sibal has pointed out certain facts which have not been disputed by the other side and which are mentioned hereunder. Smt. Jasma Devi respondent, the returned candidate, is the wife of Sh. Bhajan Lal. Shri Bhajan Lal is an ex-Chief Minister of the State of Haryana and is now a Union Cabinet Minister. A decade earlier, from 1977 to June, 1979 Shri Devi Lal was the Chief Minister of Haryana and Shri Bhajan Lal was a minister in his Cabinet. Because of certain disputes regarding the leadership of Devi Lal in the ruling legislature party, he resigned the office of the Chief Minister in June, 1979. Shri Bhajan Lal was elected leader in his place on the same day and he became the Chief Minister of Haryana. In the general elections to the Haryana Legislative Assembly held in June, 1982, Shri Devi Lal -- being the leader of Lok Dal spearheaded the election campaign on behalf of his party. On the other hand, Shri Bhajan Lal carried out the election campaign as a leader of the Congress (I). After the election results Shri Devi Lal claimed that tie had the majority of the elected legislators with him. A similar claim was made by Shri Bhajan Lal on behalf of the Congress(I). Shri Devi Lal was asked by the Governor, Haryana, to give proof of his majority in the Legislature but before he could do so Shri Bhajan Lal as leader of the Congress (I) party was sworn in as the Chief Minister of Haryana. Shri Devi Lal thereafter remained leader of the opposition in the Legislative Assembly. Five years later in June, 1987, when elections were held to the Haryana Legislative Assembly, Lok Dal (B) party headed by Shri Devi Lal with its ally B. J.P. virtually had a clean sweep. The Congress (I) could get only five seats in the Assembly. The election campaign on behalf of the Congress (I) was carried out by Shri Bhajan Lal in spite of this miserable defeat the seat of Adampur constituency, which was earlier held By Shri Bhajan Lal himself, was retained by his wife Smt. Jasma Devi respondent. She was elected by a comfortable margin of nearly 10,000 votes.
22. In the above background Mr. Sibal contends that there has been long-standing acute political rivalry between Shri Devi Lal and Shri Bhajan Lal. The victory of the wife of the latter, who is the respondent herein, inJune, 1987 Assembly elections is a bitter pill which could not be swallowed by Sh. Devi Lal and his supporters. Thus, according to him, an all out effort has been made to get the election of the respondent declared void. The Returning Officer P.W. 2 has been pressurised and used for this purpose, who has either willingly or under pressure made the above statement. Mr. Sibal, therefore, contends that the above statement being a white lie should not be believed. Mr. Sibal has further pointed out that during the period June, 1982 onwards when Shri Bhajan Lal was the Chief 'Minister of Congress (I) in Haryana, Shri Devi Lal was spearheading a campaign against him and several efforts were made to dislodge him. Memorandum Ex.R.W. 9/1 was addressed by a number of M.L.As. and members of Parliament to the Prime Minister. Shri Devi Lal is the first signatory of this memorandum. An attempt was made therein for the appointment of a Commission of Enquiry against Shri Bhajan Lal, the then Chief Minister of Haryana, for going into the alleged acts of corruption, mal-administration, nepotism, misuse of power and authority etc. Shri M. K. Maitra, Project Officer, Department of Personnel Training, Ministry of Personnel, Public Grievances and Pensions, New Delhi, who appeared as R.W, 9 and produced the memorandum Ex.R.W. 9/1 stated that on the basis of, this memorandum Justice Jaswant Singh Enquiry Committee was appointed Mr. Sibal states that it is a matter of common knowledge that Justice Jaswant Singh Enquiry Committee gave a clean chit to Shri Bhajan Lal
23. Mr. Sibal further points out that at the time of election and particularly on the date of polling, i.e. 17-6-1987, the enmity of acute type was exhibited by Dharmpal Singh petitioner No. 1, who accompanied by his son and some other supporters reached in vehicles the polling booth near Mandi Adampur Dharamsala. They wanted the polling to bestopped alleging that bogus votes were being polled Devi Lal son of Manphool Singh, a nephew of Shri Bhajan Lal, was also present there along with his supporters. Many threats and abuses were exchanged between the two groups. It is alleged that one Rajinder Singh, a supporter of petitioner 1, fired from his Revolver at the said Devi Lal. Another supporter of petitioner 1 fired from his single-barrelled gun, who according to the said Devi Lal was Anoop son of Dharampal petitioner 1. He alleged that he was fired upon with an intention to kill him. A report of his complaint was registered at the police station as F.LR. No. 51 dt. 17-6-1987 for offences under Sections 307/506/34, I.P.C., read with Sections 25 and 27 of the Arms Act. A copy of this' F.I.R. is Ex. R.W. 6/1. No police action on the same was taken and the same was filed. The said Devi Lal son of Manphool, therefore, filed a complaint Ex.R.W. 5/1 in the Court of the Illaqa Magistrate, Hissar, who summoned the accused vide his order dated 6-10-1987 EX.R.W. 5/2. One of the accused, namely, Rajinder refused to accept service of the summonses. Therefore, the Judicial Magistrate vide order dated 6-11-1987 directed issuance of non-bailable warrants against him. The other accused in the complaint still remain unserved Mr. Sibal thus points out that at the time of polling on 17-6-1987 the atmosphere remained surcharged He submits that while on that date when the above occurrence took place the police registered the F.I.R. Ex.R.W. 6/1, it later developed cold feet when Lok Dal (B) headed by Sh. Devi Lal came into power, He refers to the statement of Shri Shiv Dayal, Station House Officer, Adampur Police Station, who appeared as R.W. 6, wherein he states that the F.I.R. Ex.R.W. 6/1 was investigated in the first instance by Shri Bhoja Ram S.I./S.H.O. who was then in charge of the Adampur Police Station. Later on, the investigation was carried out by Shri Ran Singh Sub-Inspector who succeeded Shri Bhoja Ram. Thereafter, this witness took over as S.H.O. Adampur Police Station. He completed the investigation of the case. He did not call Devi Lal complainant. He found the complaint to be a false one. Therefore the case was filed He stated that he took charge of the Adampur Police Station on 23-8-1987 and he made the report finding the case to be a false one on 4-9-1987. Mr. Sibal points out that this forced the complainant to file the complaint Ex.R.W. 5/1 in the Court of the Judicial Magistrate as the State machinery through the police attempted to hush up the case.
24. Mr. Sibal then refers to a complaint Ex. R. W. 2/1 by Dharampal Singh petitioner1. This was presented by him personally to the Chief Minister Shri Devi Lal on 12-11-1987. It contains a number of allegations of illegal amassing of wealth beyond their known means by Shri Bhajan Lal and his family members. Shri H. R. Swan, Director General of Police, Haryana, R. W. 2, has stated that complaint Ex. R. W. 2/1 was addressed to the Chief Minister, Haryana There are orders recorded on the top of the first page of it which are signed by some one in the C. M.'s secretariat. The order indicates that the complaint had been seen by the Chief Minister and it was sent to R. W. 2 on 12-11-1987 itself and on the same day he recorded his remarks on it, addressed it to the Superintendent of Police, Hissar, by name to look into the same and take necessary action and report He marked these orders as 'confidential'. He, however, stated that he did not treat Ex. R. W. 2/1 as urgent. He did not know when it was sent to the Superintendent of Police, Hissar. It was to be sent by his office. He could not say whether the orders in the margin of the first page of the complaint EX.R.W. 2/1 to the effect that 'S.HO. Police Station Sadar, Hissar, please register a case and investigate' are in the hand of Shri Lakhi Ram, Superintendent of Police, Hissar, under date 21-11-1987. Shri Kartar Singh Inspector of Police, S.H.O. Police Station Sadar, Hissar, appeared as R.W. 3 and stated that first information report was recorded on the basis of the complaint Ex.R.W. 2/1. Ex.R.W. 3/1 is the certified copy of the said first information report. He stated that the investigation of the case was taken over by Shri Tara Chand Inspector and Shri Mohinder Singh Deputy Superintendent of Police. The complaint Ex.R.W. 2/1 and the first information report Ex.R.W. 3/1 show that on its basis a case under Sections 161 and 165 of the I.P.C. was registered against Shri Bhajan Lal. Shri Dharampal Singh P.W. 1 admitted that the complaint Ex.R.W. 2/1 bears his signatures. On the basis of the aforesaid documents, Mr. Sibal submits that Shri Dharampal Singh petitioner No. 1 is very close to Sh. Devi Lal, Chief Minister, Haryana, and both of them have a common enemy in Shri Bhajan Lal.
25. Mr. Sibal thus submits that an all out effort was made to get the election of the respondent declared void. Shri O. P.Langayan P.W. 2, who was posted as Sub-Divisional Officer (Civil), Hissar, when the Lok Dal (B) Government headed by Shri Devi Lal came to power, was transferred as Land Acquisition Officer, Urban Estate, Gurgaon, vide order dt. 27-6-1987 EX.R.W. 1/1. Mr. Langayan was one of 55 officers whose transfers and postings were ordered thereby. However, only two days later on 29-6-1987 by an express telegram addressed to Shri Langayan P.W. 2 his transfer and posting as Land Acquisition Officer, Gurugaon, was stayed till further orders. This telegraphic order is purported to have been issued by the Chief Secretary, Haryana. A copy of the same was sent by post in confirmation to Shri Langayan the same day. Its attested copy is R.W. 1/3. About three weeks later vide order dated 22-7-1987 the transfer and posting of Shri O. P. Langayan vide R.W. 1/1 was cancelled by an order of the said date Ex.R.W. 1/2. Shri Brij Bhushan Lal R.W. 1, Deputy Secretary, Administration Department, Haryana, produced these three orders. He stated that the order Ex.R.W. 1/1 contains an endorsement communicating the orders of transfer to Shri O. P. Langayan. He stated that the original order of transfer of 55 officers including Mr. Langayan is signed by Shri R. C. Rao, Deputy Principal Secretary to the Chief Minister, Haryana It is to the effect that the Chief Minister had desired that postings and transfers, of these officers should be ordered with immediate effect. The order was that these transfers should be implemented with immediate effect. However, the order of transfer of Mr. Langayan along with some others was stayed on 29-6-1987 under the orders of the Chief Secretary, Haryana The original file contains the orders which are signed by Shri Naresh Gulati, Joint Secretary, Political and Services, on 29-6-1987. It states that the Chief secretary desired that the transfer orders of Shri O. P. Langayan along with three others should be stayed He stated that subsequently the orders of transfer of Shri O. P. Langayan were cancelled vide order Ex.R.W. 1/2. Both the orders Exs. R.W. 1/1 and R.W. 1/2, according to him, were passed under the orders of Shri Devi Lal, Chief Minister, Haryana Both these orders as also the telegram Ex.R.W. 1/3 were conveyed to Shri Langayan. He stated that the file with him did not disclose why the orders of transfer of this officer werecancelled In cross-examination, he stated that Chief Minister himself is the Minister- in-charge of the Administration and the Chief Secretary is the Secretary-in-charge of the same. Copies of the orders aforesaid were to be sent outside Chandigarh by post. He had no proof on the record brought by him that Shri Langayan received copies of these three orders. He further stated on re examination that copies of these orders were sent to the Heads of concerned Departments, Commissioners, Deputy Commissioners and other concerned officers besides sending t he same to the affected officers.
26. It would be advisable first to test the veracity of the statement of Shri O.P. Langayan P.W. 2 as regards his transfer and its subsequent cancellation. He admitted that soon after the Government of Lok Dal (B) came to power in June, 1987 he was transferred from Hissar but stated that in spite of his transfer he had not been given any order of his next posting. He admitted that ultimately the orders of his transfer were cancelled but he could not recollect after how many days of the issuance of his orders of transfer from Hissar the orders cancelling his transfer were passed He stated that in fact, he did not receive the orders of his transfer from Hissar. He got to know about it from a news hem in the Press. He stated that he continued at his place of posting at Hissar without any break and is still continuing there since then. It is clear that by denying the receipt by him of the orders of his transfer Ex.R.W. 1/1 he attempted to avoid further inconvenient questions like issuance of telegraphic order Ex. R.W. 1/3 staying his transfer two days later. This telegram is in fact addressed to him and copies have been sent in confirmation to him and to other officers. His further attempt was to avoid the next question as to how his transfer was ultimately cancelled vide order Ex.R. W. 1/2, Mr. Sibal maintains that P.W. 2 has been holding an important post as Sub-Divisional Officer (Civil) at Hissar -- a premier town in Haryana. His transfer to the post of Land Acquisition Officer at Gurgaon would have been to an insignificant post. The transfer was cancelled for reasons which cannot be brought out on the record but it speaks volumes about the fact that either he managed to get his transfer cancelled or incurred obligation by approaching some influential quarters in the Lok Dal (B) Government.
27. I, however, do not consider it necessary to dilate on these aspects. What I find is that his prevarication in the witness box and his absurd answers to different questions with a view to justify his earlier statement that he had located the correct serial number of Azad Singh in the electoral roll leave no one in doubt that his statement is not truthful When asked why he did not mention in his order Ex.P.W. 2/1-C that the name of Azad Singh was at Sr. No. 231 as allegedly found by him, his answer was that he was not bound by law to mention in his order that he had found the name of Azad Singh at a serial number other than that mentioned by him in his nomination paper Ex.P.W. 2/1. When asked how did he locate the name of Azad Singh at Sr. No. 231, he stated that he started looking for his name in the relevant part of the electoral roll from S. No. 102 onwards and found it. When asked why did he not look up the electoral roll from S. No. 1 onwards, his answer was that since Azad Singh had mentioned S. No. 102 in his nomination paper, he presumed that if it is not at Sr. No. 102 it must be at a serial number subsequent thereto. When further asked how was he certain that the name of Azad Singh appeared in part No. 102 of the electoral roll, he stated that he was sure that his name was in the said part because he had mentioned in the nomination paper Ex.P.W. 2/1 that his vote number is in part No. 102 of the electoral roll But he could not have the same certainty about the serial number at which his name appeared in this part although he had written the same as 102 in the nomination paper Ex.P.W. 2/1. He stated that it did not strike him at the time of scrutiny that when the name of Azad Singh had riot been found in part No. 102 of the electoral roll his name might be in some other part of the electoral roll. He did not check the other parts of the electoral roll. He scrutinised the part of the electoral roll relating to village Mangali Kalan which is part No. 102. He admitted that nobody pointed out to him at the time of scrutiny that the name of Azad Singh figured at Sr. No. 231 of Part No. 102 of the electoral roll. When asked why he did not mention in his order Ex.P.W. 2/1-C that the name of Azad Singh had been found at Sr. No. 231 of part No. 102 of the electoral roll, he stated that his aforesaid order was a judicial decision and that is why he did not consider it necessary to mention this fact. He denied the suggestionthat he did not find at that time that the name of Azad Singh was at Sr. No. 231 of electoral roll Part No. 102 and that he was now deposing falsely for the reason that he is an officer under the Lok Dal (B) Government. He admitted that no one told him on the date of scrutiny that he was wrongly rejecting the nomination paper of Azad Singh. For the first time it was Azad Singh who met him 2/3 days after the date of scrutiny that he was told that he had wrongly rejected his nomination paper. He denied the suggestion that since the respondent is the wife of Shri Bhajan Lal, ex-Chief Minister, Haryana, he was deposing in favour of the petitioners as Lok Dal(B) Government is now in power. He denied knowledge of the fact that there is any political revelry between Shri Bhajan Lal, ex-Chief Minister of Congress (I) and Shri Devi Lal, the present Chief Minister of Lok Dal (B) party.
28. When asked why did he not personally check the particulars mentioned by Azad Singh in his nomination paper Ex.P.W. 2/1 when it was presented to him, the reason which he stated is that he was over-worked. He was Returning Officer of two constituencies, namely. Adampur and Girahe. At the same time he admitted that on the date of scrutiny he scruinised the nomination papers filed by the candidates of both these constituencies. He, however, denied the suggestion that he did not look for the name of Azad Singh in part No. 102 of the electoral roll after he did not find the same at Sr. No. 102 for the reason that he was overworked. He ventured to add that in fact it was his duty in law to personally check up the electoral roll and find out the correct serial number of Azad Singh and he did so. He admitted that it was also his duty in law to check the correct serial number and part number of the electoral roll where the name of Azad Singh was entered even on the date he filed his nomination paper before him.
29. On perusal of the above statement of Shri O. P. Langayan P.W. 2, there is no escape from the conclusion t hat for the reasons best known to him he told blatant lies in the witness box. He looked up the electoral roll to find out the correct serial number of Azad Singh because it was his duty in law to do so but strangely enough his duty stopped short at that. Having found the correct serial numberof Azad Singh and on being certain that he is a voter from the constituency, it was his duty to overlook the error in the voter number mentioned in the nomination paper. He could have conveniently mentioned in his order that in the relevant part of the electoral roll the name of Azad Singh appeared at Sr. No. 231 and not at No. 102 as given in the nomination paper, and then by overlooking the error he should have accepted the same as required by the proviso to Section 33(4) and Section 36(4) of the Act. He admits that there was no objection raised by any one to the nomination of Azad Singh. Therefore, there could be no reason for him whatsoever to reject his nomination had he found his correct serial number in the electoral roll. His statement that he did not mention all this in his order because it was a judicial one is an added absurdity. It is difficult to believe that he knew the law to the extent that he was required to locate the correct serial number of Azad Singh in the electoral roll, but he did not know his duty in law that having found the same he was to overlook the error as an unsubstantial one and accept the nomination instead of rejecting it. The only possible conclusion is that having not found the name of Azad Singh as Sr. No. 102 and there being no assistance available to him, as neither Azad Singh nor any one on his behalf was present, he rejected his nomination paper on the ground that part number and serial number given in the nomination paper were wrong. In the witness box he has tried to deviate from the order Ex.RW. 2/1-C deliberately.
30. The order Ex.P.W. 2/1-C passed by Sh. O. P. Langayan P.W. 2 as Returning Officer is an order of a statutory functionary. He could not add to it or vary it at his will in the witness box so as to give it a different colour with an intention to render it bad in law. The law in this regard is well settled and has been reiterated by the final Court in Mohinder Singh Gill v. Chief Election Commr. New Delhi, AIR 1978 SC 851, in the following words: --
'The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by thetime it comes to court on account of a challenge, get validated by additional grounds later brought out.'
31. An earlier judgment of the Supreme Court in Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, was relied on, wherein it is, inter alia, observed thus -
'Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'
Their Lordships observed that orders are not like old wine becoming better as they grow older.
32. In Union of India v. Mario Cabrale Sa, AIR 1982 SC 691, the following observations made by the final Court are worth quotation: --
'The legality of the Governmental action must be adjudged on the reason stated in the impugned order and it is impermissible for the Government to take a new ground......Itwas, therefore, not permissible for the Government to offer a justification for refusal to grant accreditation to the respondent, on grounds other than the one that he did not fulfil the requirements of Rule2(i)of Section II of the Rules of Accreditation of Press Correspondents and News Agencies.'
33. Therefore, what has to be construed from the order Ex.P.W. 2/1-C passed by the Returning Officer is that on scrutiny he found that the electoral roll number and serial number mentioned by Azad Singh in his nomination paper did not tally with the electoral roll and in the absence of Azad Singh or his representative to assist the Returning Officer in finding out his correct particulars, the nomination paper was rejected. It was a perfectly valid order which Shri O. P. Langayan cannot be permitted to render invalid by making a statement on oath in the witness box at variance with his order.
34. I am of the view that a crude attempt has been made to take the present case out of the confines of the law which is by now well settled by the judgments of the Supreme Court in Brij Mohan's (AIR 1985 SC 847) and Lila Krishan's cases (AIR 1985 SC 1073) (supra). Shri O. P. Langayan P.W. 2 who was the Returning Officer and held a very responsible position has either voluntarily or under pressure allowed himself to be used for this purpose. An election held by a democratic process is not to be allowed to be lightly set aside. The Court shall always be reluctant to do so. The choice of the electors must be respected It is a politically sacred act. It is only on the evidence of an indubitable character that an election can be set aside. It is the duty of the Court to safeguard the choice of the electors because it is the conscienc keeper of the constituency. The following observations of the final Court in Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290, laid down the guiding principles in this regard: --
'It is of the first importance that elections must be free and fair if the democratic system is not to founder. Not long ago a Chief Justice of this Court, delivering the Lajpatrai Memorial Lecture, observed -
'Untruth before elections, during elections and after elections seem to be too prevalent for a healthy political society.'
He also tartly remarked in that speech :
There is always a danger of the failure of democracy. 'Remember' said John Adams, 'remember, democracy never lasts long. It' soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide.' We must realise that this is entirely true.'
The Court is the conscience keeper of the constituency, as it were, in the maintenance of the purity of elections to the extent they are litigated in Court.....The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.'
However, we have to remember another factor. An election once held is not to be treated in a light hearted manner and defeated candidates or disgruntled electors should notget away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainly in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced.
.....
There are many who are cynical about the enforcement of the election law, which is too moral for the pragmatic skills of the politicians when locked in pitched battles. They regard these vices as inevitable and therefore remain indifferent to their prevalence. Sydney Harris' statement in this context is apposite :
'Once we assuage our conscience by calling something a 'necessary evil', it begins to look more and more necessary and less and lessevil..''
35. Commenting on the oral testimony of witnesses, their Lordships of the Supreme Court observed in Rahim Khan's case (AIR 1975 SC 290) (supra) :
'Counsel for the appellant and to some extent the 1st respondent's advocate also read before us rulings galore as to when witnesses should be believed and when not. Precedents on legal propositions are useful and binding, but the variety of circumstance and peculiar features of each, case cannot be identical with those in another and judgment of Courts on when and why a certain witness has been accepted or rejected can hardly serve as binding decisions, Little assistance can therefore be derived from case law on credibility. There are no legal litmus tests to discover the honest conscience of a human being and the canons of truthfulness of oral evidence sans commonsense are but misleading dogmas. The golden rule is, as George Bernard Shaw tells us, that there are no golden rules. For this reason, we are not referring to the many rulings cited before us. But we certainly inform ourselves with the genera! touchstones of reliability. The fact that we are not ready to act on the testimonyof a person does not mean that he is a perjurer. It merely means that on such testimony it is not safe to conclude in quasi-criminal proceeding that the 'corrupt practice' has been proved beyond reasonable doubt The whole constituency is silently present before us -- it must be remembered..........We mustemphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents..............There is noX-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny cats election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witness. The Court must look forserious assurance, untying circumstances on unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life.'
There is yet another aspect of the case which needs deliberation. There is no assertion in the petition that the Returning Officer having found serial number 102 in the elector air oil not to pertain to Azad Singh proceeded to trace his correct serial number and actually found it at Sr. No. 231. Section 83 of the Act categorically lays down that an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies, (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The purpose of this mandatory requirement has been elaborated by the Supreme Court in D. Venkata Reddy v. R. Sultan, AIR 1976 SC 1599, in the following words: --
'In a democracy such as ours, the purity and sanctity of elections, the sacrosanct and sacred nature of the electoral process must be preserved and maintained. The valuable verdict of the people at the polls must begiven due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on. evidence which is of a shaky or prevaricating character. It is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election. In our country election is a fairly costly and expensive venture and the Representation of the People Act has provided sufficient safeguards to make the elections fair and free. In these circumstances, therefore, election results cannot be lightly brushed aside in election disputes. At the same time it is necessary to protect the purity and sobriety of the elections by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, communal propaganda, bribery or other corrupt practices as laid down in the ActAnother principle that is equally well settled is that the election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence.'
The learned counsel for the respondent, however, pointed out that in the replication-the petitioners have made such an assertion in para 10(d) to the following effect : --
'The Returning Officer actually located the name of the petitioner No. 2 and was satisfied with regard to the identity andeligibility'.
36. Mr. Sibal, on the other hand, contended that in case the above assertion pertains to the scrutiny of nomination paper by the Returning Officer, its verification by the petitioners to the effect that it is correct to their knowledge is a false one. In support of this, he pointed out that Azad Singh petitioner 2 was not present at the time of scrutiny of his nomination paper. All that Dharampal Singh petitioner No. 1 stated in the witness box as P.W. 1 in this regard is that when the nomination paper of Azad Singh was scrutinised by the Returning Officer, he was present. The Returning Officer found some numbers mentioned in his nomination paper to be wrong and that is why he rejected it. Shri O.P. Langayan Returning Officer P.W. 2 stated that when Azad Singh met him 2/3 days after the date of scrutiny and represented to him orally against rejection of his nomination paper he did not tell him thathis name figured at Sr. No. 231 in Part No. 102 of the electoral roll and that he had wrongly mentioned serial number 102 in his nomination paper. Azad Singh also did not tell him that as his name figured at Sr. No. 231 his nomination paper ought not to have been rejected. Mr. Sibal thus contends that there was no source of knowledge with the petitioners to aver in the replication that the Returning Officer had actually found out the correct serial number of Azad Singh in the electoral roll The verification is thus a false one. He further submits that this averment in the replication appears to have been made after an understanding had been reached at with Shri O.P. Langayan P.W. 2 about the statement which he has made on oath in Court. That may or may not be so. It is, however, clear from the record that the petitioners had no knowledge that the Returning Officer had actually found the name of Azad Singh against the correct serial number in the electoral roll and that in spite of that he rejected his nomination paper. It is, thus, clear that there is no specific statement duly verified in accordance with law in the pleadings that the Returning Officer had found the name of Azad Singh at Sr. No. 231 in the electoral roll, Part No. 102.
37. In all fairness to Mr. B.S. Malik, learned counsel for the petitioners, I must refer to some of the contentions raised by him. He submitted that the enquiry before the Returning Officer at the tune of scrutiny is a summary one. He relied on Parmeshwar Kumar v. Lahtan Chaudhary, (1958) 14 Ele LR 444 : (AIR 1959 Pat 85), a judgment of the Patna High Court, wherein it is stated that -
'The provisions of the Act beginning from Section 80 to Section 122 would show that the Election Tribunal (provided in the unamended provisions) acts as a Court in this matter of hearing election petition and it is meant to give scope of fuller enquiry with regard to the various matters for declaring the election void Objections before the Returning Officer need not be in writing, nor is it incumbent upon the Returning Officer to hold the inquiry in any prescribed manner nor is he under any obligation to reduce to writing the statements made before him by the persons present before him. He may make the enquiry as he thinks fit, may not note down the names of all the persons from whom he makes the enquiryand may not discuss in detail the materials upon which he bases his decision of the enquiry. In that view of the matter it is difficult to accept the proposition that the powers of the Tribunal are restricted to see as to whether the nomination papers had been properly rejected by the Returning Officer on the materials available before him.'
38. In my view, the observations in Parmeshwar Kumar's case (AIR 1959 Pat 85) (supra) in no way help the petitioners. No one objected to the nomination paper of Azad Singh at the time of scrutiny. Had the Returning Officer found the name of Azad Singh by tracing it out at the correct serial number, he was bound to accept the same by overlooking the error in the nomination paper. In the order Ex. P.W.2/1-C he says in so many words that he checked up and rejected the nomination paper because the part number and serial number of the electoral roll of the contesting candidate do not tally with the list as filled in by the candidate in the nomination paper, which means that he could not trace the correct serial number. He cannot now turn round and depose in the witness box that he did trace the correct serial number in the electoral roll pertaining to Azad Singh and in spite of that he rejected the nomination paper. This is virtually converting a valid order into a bad one. It would vary the character, scops and effect of the order, which cannot be permitted. Reference made by him to Ajayab Singh v. Karnail Singh (1953) 6 Ele LR 368 (Tri) and Karnail Singh v. Election Tribunal, Hissar, 10 Ele LR 189 : (AIR 1955 NUC5796), is of noavail When the Returning Officer could not locate the name of Azad Singh against the serial number in the part of the electoral roll mentioned in the nomination paper and there was no assistance available to him at the time of scrutiny to trace the name of Azad Singh in the electoral roll, he rejected the nomination paper. In these circumstances, it cannot be said that the defect which he found in the nomination paper was not of a substantial nature.
39. Mr. Malik then contended that the name of the village of Azad Singh was correctly given in the nomination paper, i.e. Part No. 102 of the electoral roll pertaining to that village. On making a little more effort the Returning Officer could have ascertained the correct serial number against which the name of Azad Singh figured in the electoralroll. This aspect has already been discussed in detail and relying on Brij Mohan's (AIR 1985 SC 847) and Lila Krishan's cases (AIR 1985 SC 1073) (supra), I have held that since neither Azad Singh nor any person on his behalf was present and no assistance was available to the Returning Officer, he was not required to launch a search for the name of Azad Singh in the electoral roll when he did not find his name against the serial number given in the nomination paper. In Avadh Raj Singh v. Jugal Kishore Gupta, AIR 1979 SC 1148, the Supreme Court dealt with a finding recorded by the High Court that the nomination paper of the candidate had been rightly rejected by the Returning Officer as he did not produce a certified copy of the extract of the electoral roll as required by Section 33(5). A contention was raised by the counsel for the appellant that had the non-production of the certified copy from the electoral roll been pointed out as the defect he would have produced it, and all remediable defects as distinguished from disqualifications, were 'not of a substantial character.' Their Lordships discarding this contention observed -
'May be so, but we need not investigate this aspect because the appellant never appeared at the scrutiny and had to thank himself for the final outcome -- an unremedied non-compliance with the statutory requirement. Had he appeared what would have happened is hypothetical and the effect of non-objection and non-product ion would also be so. We need not and do not go beyond the facts and law presented before us.'
40. Then defending the deposition of Sh. O.P. Langayan P.W. 2 that he never received the orders of transfer Ex R.W. 1/1, Mr. Malik contended that the telegram Ex. R,W. 1/3 staying the transfer of the P.W. had been issued on 29-6-1987. The orders of transfer Ex. R.W. 1/1 had been issued on 27-6-1987. In between these two days, 28th of June, 1987, was a Sunday. Even the 27th of June, 1987, -- the date on which the transfer orders had been issued -- was a holiday, it being a Saturday. He therefore, submits that, in all probability, in view of the orders contained in the telegram Ex.R.W. 1/3, the transfer orders of Shri O.P. Langayan were not despatched and might not have been received by him. This contention justifying the oddstatement made by P.W. 2, in my view, is untenable. The telegram Ex.R.W. 1/3 in the natural course of events was addressed to Shri O.P. Langayan staying his transfer orders only when the transfer orders dated 27-6-1987 had been conveyed to him. Had it not been so, his transfer orders could simply be withheld and there was no need of issuing telegram Ex. R.W. 1/3.
41. Mr. Malik then submitted that the suggestion made by Mr. Sibal as regards undue influence and pressure on the Returning Officer P.W. 2 was vagus and far-fetched. He submitted that the statement of the Returning Officer should not be lightly disbelieved In his support he cited Umed Singh Rao v. Mam Ram Gadara, AIR 1985 SC 1079. The observations made by the final Court in Umed Singh Rao's case(supra) are to be read in the context of the facts of that case. There the finding was that the Returning Officer had tampered with the nomination paper himself or manipulated the tampering in the nomination paper guided by ill motives and he was ordered to share half the costs ordered in the petition. In these circumstances, the final Court observed that until justifiable grounds are made out no evidence should be condemned. It was further observed that the High Court seems to have lost sight of the position that there is a presumption that official acts have been regularly performed and the burden was on the person who pleaded to the contrary and sought a different conclusion to be reached. Umed Singh Rao's case (supra) in fact supports the case of the respondent. It is to be presumed that in the course of his official acts regularly performed the Returning Officer found that the part- number of the electoral roll and the serial number therein of Azad Singh as mentioned in the nomination paper were found to be wrong as they did not tally with the electoral roll. Since in the absence of Azad Singh and without assistance the Returning Officer did not find the name of Azad Singh in the electoral roll, he rejected his nomination paper. It would, in fact, be deviating from the presumption that the official acts are regularly done if the statement of the Returning Officer P.W. 2 made to the contrary is believed. Thus,in my view, Umed Singh Rao's case is of no help to the petitioners.
42. Lastly, Mr. Malik sought to distinguish Brij Mohan's case (AIR 1985 SC 847) and Lila Krishan's case (AIR 1985 SC 1073) (supra). He pointed out that in Brij Mohan's case part number of the electoral roll of both the candidate and his proposer as mentioned in the nomination paper were wrong. Therefore, it was difficult for the Returning Officer to locate their names in the respective electoral rolls. He further points out that in Lila Krishan's case (supra) the serial number of the proposer as mentioned in the nomination paper did not tally with the serial number in the electoal roll On the other hand, in the present case the serial number of the candidate himself as mentioned in the nomination paper did not tally with the serial number in the electoal roll. It is difficult to understand how the facts so distinguished in the above two cases can help the petitioners. The electoral roll number and the serial number of the candidate and the proposer are required to be correctly mentioned in the nomination paper. The Returning Officer is required to cross-check the same with the electoral rolls. If any particular does not tally and he is not in a position to locate the name of either the candidate or the proposer in the electoral roll because of the absence of the candidate, his proposer and any other person on his behalf and the nomination paper is rejected, the result would be the same. I have already referred to the observations of the final court in Brij Mohan's case that it is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character. They would not be defects of a substantial nature only if at the time of scrutiny the Returning Officer either himself with the materials placed before him during scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll The imperative conclusion in the present case is that the Returning Officer could not find the correct serial number of Azad Singh petitioner No. 2 in the electoral roll and in the absence of the candidate no assistance was available to the Returning Officer to locate his correct serial number. Thus, the defect in thenomination paper at the time of scrutiny was of a substantial character. I, therefore, hold that the nomination of Azad Singh was not improperly rejected Issue No. (1) is therefore, decided against the petitioners and in favour of the respondent.
As a consequence of my finding on issue No. (1). issue No. (2) has become redundant and is disposed of accordingly.
43. Before parting with this judgment, I may mention that Mr. Sibal, on behalf of the respondent, urged that Shri O.P. Langayan P.W. 2 should be prosecuted for perjury. He made a blatantly false statement when he appeared in the witness-box. Mr. Sibal contended that the election of a returned candidate should not be allowed to depend on the whims, fancy or dishonest conduct of the Returning Officer. If Mr. O.P. Langayan P.W. 2 is not punished for the false statement made by him, any Returning Officer may at any time make any statement in Court to suit the political party in power to get unseated a returned candidate belonging to the opposition. He, therefore, submitted that it is expedient in the interest of justice that an enquiry should be held into the perjured statement made by Sh. O.P. Langayan P.W. 2 by adopting the procedure laid down under Section 340, Criminal Procedure Code, which should lead to his prosecution. I have given my thoughtful consideration to this submission. I, however, desist from adopting this course for two reasons. During arguments, it was brought out that Shri O.P. Langayan P.W, 2 belongs to a weaker section of the society. He is a Harijan. Further, it is difficult to predicate whether Mr. Langayan made the false statement of his own volition on the basis of quid pro quo or under pressure from some quarters. It, however, does not mean that an officer belonging to a weaker section of society has a lincence to perjure in a court of law. I, however, advise the Election Commission not to assign any election work in future to Mr. O.P. Langayan. He does not deserve to hold the responsible position of a Returning Officer. He has exhibited complete disregard of the law and procedure provided by the Act and the Rules. For reasons best known to him, he came forward to make afalse statement with the motive to unseat aduly elected candidate at the elections of which he was the Returning Officer. It is hazardous to entrust him any position of responsibility.
44. I would also like to give a word of advice to Mr. O.P. Langayan. A civil servant in our polity is known as 'public servant', He is paid to serve the people. He should discharge his duties without fear or favour. Honesty and unimpeachable integrity should guide his course through the service career. He should not be influenced by the changing fortunes of the political big wigs even if the change of the Government at the political level takes him away from an important assignment to an unimportant one. He should accept the position without grudge or demur. After all, insignificant posts are also manned by public servants like him. Such events are pure and simple exigencies of service which should not disturb a public servant so as to compel him to run after the powers that be and to curry favour with them.
45. As a result of the above discussion, I dismiss this election petition with costs. A copy of this judgment should be sent to the Chief Election Commissioner and the Chief Secretary, Haryana Government, for their information.