NARENDER SINGH Vs. MALA RAM

JUDGEMENT

(1.) Election to the Haryana Legislative Assembly was held on April 27, 1996 and the appellant before us (hereinafter referred to as 'the returned candidate') was elected to the Legislative Assembly from No. 89, Ateli Vidhan Sabha Constituency. On notification for election being issued, 88 nomination papers were filed. The returned candidate was sponsored by the Indian National Congress. At the time of scrutiny some of the nomination papers were rejected by the Returning Officer on the ground that oath or affirmation as contemplated under Article 173 of the Constitution had not been taken either before the Returning Officer or any other competent authority and, therefore, their nomination papers were invalid. Ultimately after withdrawal of their candidature 47 candidates remained to be elected. The returned candidate secured 22144 votes while his nearest rival, Om Prakash, secured 19270 votes and the appellant was declared elected. Om Prakash, the defeated candidate, filed Election Petition No. 6/96 on the ground that nomination papers of Suresh Kumar and Yongender amongst others had been improperly rejected. Mala Ram filed Election Petition No. 5/96 contending that his nomination papers had been improperly rejected. In these cases, contention put forth was that Yogender, Suresh Kumar and Mala Ram had taken oath or affirmation as contemplated under Article 173 of the Constitution but the Returning Officer asked each one of them to take the receipt later and that he refused to give the receipt on the same day of taking oath on the ground that he was busy and on the next day after scrutiny he rejected the nomination papers as aforesaid.

(2.) The returned candidate raised several preliminary objections in both election petitions Nos. 5 and 6/96. The learned Judge by an order made on November 20, 1996 held that the allegations would not amount to corrupt practice and, therefore, even if the petitions had not been supported by an affidavit the petition must be deemed to have been properly filed. In Election Petition No. 5/96, similar preliminary objection has been raised but the High Court did not give any decision probably in view of its earlier order in Election Petition No. 6/96. The High Court allowed the election petitions filed by the respondents and held that the nomination papers filed by Mala Ram, Suresh Kumar and Yogender have been improperly rejected and, therefore, the election of the returned candidate is void and liable to be set aside. Hence two appeals are filed by the returned candidate. The Returning Officer has also preferred a special leave petition challenging certain observations made and findings recorded against him and this Court by an order made on December 8, 1997 has directed to tag on the said special leave petition to the civil appeals preferred by the returned candidate.

(3.) The preliminary objection raised before the High Court is that Section 83(1) of the Representation of the People Act, 1951 (for short 'the 1951 Act') provides that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of such corrupt practice and the particulars thereof. In this case it was alleged that the election petitioner had made certain allegations of corrupt practice and the same having not been supported by an affidavit the petition cannot go to the trial. The allegations in this regard are contained in paragraph 4 of the Election Petition and for purposes of convenience, we will set out the entire paragraph 4 of the petition which is as under: