Case: Ram Awadesh Singh Vs. Sumitra Devi &amp; Ors

observed that the word defect in Section 36(4) included an omission to satisfy the details prescribed in the nomination. It further observed that the distinction laid down in English cases between "omission" and "inaccurate description" depended on the specific provisions of the English statute which did not obtain under the Indian law. This decision, again has no bearing on the point in issue.25. For the reasons mentioned above we are of the opinion that the defect in the appellants nomination paper was not a substantial defect. Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.26. In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of Section 100(1)(d). We shall merely notice the arguments advanced on either side on that question. According to the appellant the Legislature has made a clear distinction between improper rejection and improper acceptance of a nomination. In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected. At this stage we may notice that prior to the amendment of the Act in 1956, improper rejection and improper acceptance were placed in the same category, Clause (c) of Section 100(1) as it stood then read :"If the Tribunal is of opinion........X X X X(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination; the Tribunal shall declare the election to be wholly void."27. This Court is Vasishth Narain Sharma v. Dev Chandra and Others, ((1955) 1 SCR 509 ) observed in the course of its judgment that where the person whose nomination has been improperly accepted is the returned candidate himself, it may be readily conceded that his nomination has materially affected the result of the election. This observation was not the ratio of that decision. That apart, after this observation was made, the Parliament has amended the relevant provision and has made a distinction between improper rejection and improper acceptance of a nomination. It was urged on behalf on the appellant that in view of the amendment the observation made by this Court in Vasishth Narain Sharmas case (supra), can no more govern the point in issue. According to the learned counsel, clause (d) of Section 100(1) as it now stands definitely requires that in the case of improper acceptance of any nomination, the election petitioner must establish that the result of the election in so far as it concerns the returned candidate has been materially affected. He urged that the word any in Section 100(1) (d)(1) means every nomination. On the other hand it was urged on behalf of the respondent that the amendment of Section 100(1) did not affect the correctness of the observation made by this Court and that observation had been quoted by this Court in two cases arising under the amended provision. In view of our earlier finding about the validity of the appellants nomination, it is not necessary to decide the controversy relating to the interpretation of Section 100(1)(d).28. For the reasons mentioned above, differing from the view taken by the learned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.29. This takes us to the appeal filed by the respondent. As mentioned earlier, the High Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial Judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappreciate oral evidence. Our attention has not been invited to any exceptional circumstance in this case requiring us to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large number of witness, some of whom may be seemingly disinterested. But that by itself is no guarantee of the truth of the evidence adduced. Mr. Tarkunde, learned for the respondent put forward three broad contentions in support of the appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances. (2) The High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.30. Now coming to the instances sought to be proved by the evidence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent. Evidently those charges were given up. In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident. Courts have always viewed with suspicion the evidence of chance witnesses. There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses Hence we see no merit in the appeal filed by the respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]As mentioned earlier, theappellant was fully qualified to be nominated for the election. The only thing said against his nomination is that his nomination paper was not properly filled in.We have earlier seen that a duty is imposed on the Returning Officer by sub-section (4) of Section 33 to look into the nomination paper when it is presented and to satisfy himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination paper are the same as those entered in the electoral roll. In this case it is proved that the Returning Officer did look into the nomination paper but unfortunately he also did not notice that the name of the appellant had been removed from the electoral roll of Arrah Constituency. If he had noticed that fact, he would have asked the appellant either to correct the mistake or to file a fresh nomination paper. We have earlier noticed that the appellant filed his nomination paper on January 6, 1969, and the last date for filing the nomination paper was the 8th of that month. That being so, there would have been no difficulty for him either to correct the nomination papers filed or to file a fresh nomination paper. We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh Constituency and he had shown the same to the Returning Officer. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters list but overlooked the deletion noted in a separate list. But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That is why the Legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected. What is of importance is an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that the is not otherwise disqualified. In other words those information relate to the proof of the required qualifications.14. It may also be noted that the Legislature itself has made distinction between the acceptance of a nomination and the rejection of a nomination. The Returning Officer is required to give reasons for rejecting a nomination whereas he is not required to give reasons for accepting a nomination. Further sub-section (2) of Section 36 says that "he may reject the nomination paper". It is further seen that the proviso to sub-clause (4) of Section 33 says that no accurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the nomination paper shall affect the full operation of the nomination.15. From a combined reading of Sections 33 and 36, it is clear that a mis-description as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.For the reasons mentioned above we are of the opinion that the defect in the appellants nomination paper was not a substantial defect. Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.26. In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of Section 100(1)(d). We shall merely notice the arguments advanced on either side on that question. According to the appellant the Legislature has made a clear distinction between improper rejection and improper acceptance of a nomination. In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected.For the reasons mentioned above, differing from the view taken by the learned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.29. This takes us to the appeal filed by the respondent.As mentioned earlier, theHigh Court has rejected the charges of corrupt practices levelled by the respondent against the appellant. Those charges were sought to be established only by oral evidence. The learned trial Judge was unable to accept the evidence adduced in support of the alleged corrupt practices. Ordinarily this Court does not reappreciate oral evidence. Our attention has not been invited to any exceptional circumstance in this case requiring us to go into the evidence afresh. It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large number of witness, some of whom may be seemingly disinterested. But that by itself is no guarantee of the truth of the evidence adduced. Mr. Tarkunde, learned for the respondent put forward three broad contentions in support of the appeal preferred by the respondent. They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances. (2) The High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses. None of these contentions appear to have any merit. Each instance of a corrupt practice pleaded had to be established separately. If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.30. Now coming to the instances sought to be proved by the evidence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent. Evidently those charges were given up. In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident. Courts have always viewed with suspicion the evidence of chance witnesses. There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses Hence we see no merit in the appeal filed by thelaw requires that the nomination of a candidate should be in the prescribed form and among others it should contain the name of the person nominated, his proposers name as well as the electoral roll numbers of the candidate and hisbeing so, there would have been no difficulty for him either to correct the nomination papers filed or to file a fresh nomination paper. We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh Constituency and he had shown the same to the Returning Officer. Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters list but overlooked the deletion noted in a separate list. But the implication of Section 33(4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance. That is why the Legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected. What is of importance is an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act. The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that the is not otherwise disqualified. In other words those information relate to the proof of the required qualifications.