judgement:
ivil Appeal No. 10085 of 1983.
From the Judgment and Order dated 15.9.1982 of the Allahabad High Court in Civil Revision No. 332 of 1981.
S.N. Kacker and R.B. Mahlotra for the Appellant.
Aruneshwar Gupta and B.B. Sharma for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
The short point arising for consideration in this appeal by special leave filed against the decision of a Division Bench of the Allahabad High Court in Civil Revision No. 332 of 1981 turns upon the interpretation of section 20 (4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972 (hereinafter referred to as 'the Act ').
The appellant land lady filed the suit on 6.8.1973 for recovering possession from the respondent tenant of a portion of premises situate at Bhau Ka Nagla, Agra Road, Mauza Dholpura on the allegation that it had been let to the respondent on a rent of Rs. 360 per mensem and that the tenancy has come to an end by efflux of time fixed in the rent note on the expiry of 30.6.1973.
She alleged in the plaint that the demised property is situate beyond the municipal limits of Ferozabad and is intended for use as a factory and is exempt from the provision of the Act and that the respondent is in arrears of rent to the extent of Rs. 3,960 for the period from 1.8.1972 to 30.6.1973 and she is entitled to recover possession of the premises together with arrears of rent of Rs. 3,960 at Rs. 360 per mensem for the said period and mesne profits at Rs. 720 for the subsequent period from 1.7.1973 at Rs. 20 per day.
The respondent opposed the suit contending that the property is situate within three kilometres of Ferozabad municipal limits and was not a factory when it was let out and that it is governed by the 586 provisions of the Act.
He denied that the rent is Rs. 360 per mensem and contented that it is only Rs. 125 per mensem and that the tenancy includes a vacant land shaded green and yellow in the plan filed with the plaint which according to the plaint does not form part of the lease.
He denied that he had executed the rent note mentioned in the plaint and that the vacant land shaded green and yellow in the plaint plan had not been leased to him.
He further denied that the tenancy has come to an end by efflux of time and contended that the amounts claimed as arrears of rent and mesne profits are wrong and excessive and that the notice to quit is invalid in law as it excludes the vacant land shaded green and yellow in the plaint plan which also is the subject matter of the lease.
Finally he contended that the suit is barred by the provisions of s.20 of the Act sub section (1) whereof says that save as provided in sub section (2), no suit shall be instituted for the eviction of a tenant from a building notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner.
The learned Fourth Additional District Judge, Agra who tried the suit exercising his Jurisdiction as a Judge of Small Causes Court found on 19.7.1975 that he had jurisdiction while recording findings on the point of jurisdiction tried as preliminary issue, and he held that though admittedly even the vacant land marked green and yellow in the plaint plan had been originally leased upto 27.7.1972 thereafter only the red marked portion had been leased on a rent of Rs. 360 per mensem under the rent note (paper No. 18A) the execution whereof has been denied by the respondent, excluding the green and yellow marked portion.
On the basis of that unregistered rent note, (paper No. 18A) he found that the rent is Rs. 360 per mensem, rejecting the respondent 's case that the old rent of Rs. 125 per mensem continued even after the dissolution of the partnership to which the premises had been leased earlier.
The respondent admitted that though the property is situate outside the Ferozabad municipal limits it is situate within three kilo metres from those limits and is therefore governed by the provisions of the Act while the appellant denied that it is situate within three kilo metres.
The learned District Judge found on the evidence that the property is situate within two kilo metres of the municipal limits and falls within the exception and is governed by the provisions of the Act.
He found that the tenancy for the period of 11 months under the rent note (paper No. 18A) had come to an end by efflux of 587 time and the parties are governed by it and that the suit is, however, governed by the provisions of s.20 of the Act.
However, the learned District Judge considered the question whether the respondent is liable for eviction in this suit and found that the appellant had served notice of demand (paper No. 35C) on the respondent and he failed to pay the rent claimed by the appellant and he is as such liable to be evicted under s.20 of the Act.
But the respondent had deposited the full amount of rent as claimed at Rs. 360 per mensem together with damages for use and occupation, interest and costs as required by s.20 (4) of the Act on 31.10.1973, a day after the first hearing date 30.10.1973.
The learned District Judge found that the sum of Rs. 7,490 was tendered in court on 30.10.1973 and passed by the court on that day and deposited into the bank on 31.10.1973 and that the tender made on 30.10.1973 was valid and the payment must be deemed to have been made on 30.10.1973 itself.
But he accepted the argument advanced on behalf of the appellant that because the respondent had contended in the written statement that the rent is Rs. 125 per mensem and it was rejected by the court and it was found that the rent is Rs. 360 per mensem the deposit of Rs. 7,490 towards arrears of rent calculated at Rs. 360 per mensem together with interest and costs was not unconditional and therefore invalid and s.20 (4) of the Act does not help the respondent.
In that view the learned District Judge decreed the suit for eviction with arrears of rent and mesne profits at Rs. 360 per mensem from 1.8.1972 and ordered credit being given for the amount deposited by the respondent towards the amount payable under the decree and granted four months time for the respondent to vacate the premises.
In C.R.P. No. 332 of 1981 filed by the respondent against the Judgment of the trial court a Division Bench of the High Court noticed that one of the conditions of s.20(4) of the Act is that the tenant should unconditionally pay or deposit the entire amount due together with interest and costs and that s.20 (6) says that any amount deposited under s.20(4) shall be paid to the landlord without prejudice to the pleadings of the parties and subject to the ultimate decision in the suit, and they have observed that the submission made before them on behalf of the appellant that the deposit to be unconditional must be on acknowledgement of the liability for rent as claimed by the landlord if accepted would render the provisions in s.20(6) of the Act nugatory.
They have observed that if the tenant makes a deposit 588 with a condition that it shall not be paid to the landlord until the suit is decided it would be a conditional deposit.
They have found that in the present case the deposit was not conditional merely because while depositing the amount inclusive of rent at the rate of Rs. 360 per mensem as claimed in the plaint the respondent had contended in the written statement that the rent is Rs. 125 per mensem and not Rs. 360 per mensem and that pleading in the written statement that the rent is Rs. 125 per mensem and not Rs. 360 per mensem does not make the deposit conditional.
In that view the learned Judges allowed the civil revision petition and dismissed the suit with costs in both the courts.
The findings dated 19.7.1975 recorded by the learned District Judge on the preliminary issue holding that he had jurisdiction to entertain the suit is not available in the records produced in this Court.
Therefore, it is not known for what reason the learned District Judge held that he had jurisdiction to entertain the suit.
The appellant came forward with the suit for recovering possession of the premises together with arrears of rent and mesne profits on the allegation that the tenancy under the rent note (paper No. 18A) was for a period of only 11 months and that it had come to an end by efflux of time and the premises was intended for use as a factory and the Act is not applicable thereto.
On the other hand, the respondent 's defence was that the property was situate within three kilo metres of Ferozabad municipal limits and is governed by the provisions of the Act and that the civil suit for recovery of possession of the property is not maintainable.
The learned District Judge accepted the respondent 's contention on the question of applicability of the provisions of the Act to the premises in question on the ground that it is located within two kilo metres of Ferozabad municipal limits.
section 20(1) of the Act lays down that save as provided in sub section (2), no suit shall be instituted for eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiry of a notice to quite or in any other manner.
The present suit is not based on any of the grounds mentioned in s.20 (2) of the Act and though the respondent is alleged to have been in arrears of rent to the extent of Rs. 3, 960/ there is no allegation in the plaint that he is in arrears of rent for not less than four months and had failed to pay the same to the appellant within one month from the date of service upon him of a notice of demand, which is the ground mentioned in clause (a) of s.20(2) of the Act.
In these 589 circumstances, the learned District Judge should have normally dismissed the suit for want of jurisdiction in view of s.20(1) of the Act on his finding that the Act is applicable to the premises.
It is not known why he did not do so, but on the other hand proceeded to hold that the deposit by the respondent is not unconditional as required by s.20(4) of the Act and ordered his eviction on that basis.
We entirely agree with the learned Judges of the High Court that the deposit of the amount on the first hearing date, made up of rent at the rate of Rs. 360 per mensem as claimed in the plaint and interest and costs could not be said to be not unconditional merely because the respondent had contended in the written statement that the rent was only Rs. 125 per mensem and he did not succeed in proving it at the trial.
It is not possible to construe s.20(4) in the manner done by the learned District Judge as that would amount to foreclosure of any defence regarding the quantum of rent even in cases where the amount alleged by the landlord is more than the real rent agreed between the parties.
In this connection Mr. Kacker, learned Counsel appearing for appellant relied strongly upon the following observation made by Balakrishna Eradi, J, speaking for himself and Pathak and Venkataramiah, JJ.
in Mangal Sen vs Kanchhid Mal : "The provisions of sub section (4) will be attracted only if the tenant has, at the first hearing of the suit, unconditionally paid or tendered to the landlord the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlord 's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub section (1) of section 30.
There is absolutely no material available on the record to show that the alleged deposit of Rs. 1,980 was made by the tenant on the first date of hearing itself and, what is more important, that the said deposit was made by way of an unconditional tender for payment to the landlord.
The deposit in question is said to have been made by the appellant on January 25, 1974.
It was only subsequent thereto 590 that the appellant filed his written statement in the suit.
It is noteworthy that one of the principal contentions raised by the appellant defendant in the written statement was that since he had stood surety for the landlord for arrears of sales tax, there was no default by him in the payment or rent.
In the face of the said plea taken in the written statement, disputing, the existence of any arrears of rent and denying that there had been a default, it is clear that the deposit, even it was made on the date of the first hearing, was not an unconditional tender of the amount for payment to the landlord.
Further, there is also nothing on record to show that what was deposited was the correct amount calculated in accordance with the provisions of Section 20(4).
In these circumstances, we hold that the appellant has failed to establish that he has complied with the conditions specified in sub section (4) of Section 20 and hence he is not entitled to be relieved against his liability for eviction on the ground set out in clause (a) of sub section (2) of the said Section.
" The above principle cannot apply to the facts of the present case, for in that case it was not clear whether the deposit of the correct amount was made within the time fixed in s.20(4) of the Act whereas in the present case it has been found by the learned District Judge that the arrears of rent at the rate claimed in the plaint together with interest and costs had been deposited within the time mentioned in section 20 (4) of the Act.
Mr. Kacker next drew our attention to the language used in s.20(4) and s.39 of the Act and submitted that whereas the provisions of s.39 are mandatory the Rent Controller has a discretion in s.20(4) in lieu of passing a decree for eviction on the ground of failure to deposit the arrears, interest and costs within the period mentioned in s.20(4) to pass an order relieving the tenant against his liability for eviction on that ground and that the High Court exercising revisional jurisdiction under section 115 C.P.C. should not have interfered with the discretion exercised by the learned District Judge in ordering eviction and set aside that order especially in view of the fact that the respondent had failed to prove that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem.
We do not agree.
The Act is a social piece of legislation which leans in favour of tenants.
Merely because 591 the tenant had failed to prove his case that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem, the discretionary relief could not be denied to him even though he had deposited the arrears of rent at the rate claimed by the landlord in the plaint together with interest and costs within the time mentioned in s.20(4) of the Act.
It is not possible to lay down any broad and general proposition that the discretionary relief should be denied to the tenant in all cases where he fails to prove his case regarding the quantum rent even though he had deposited the rent at the rate claimed by the landlord in the plaint together with interest and costs within the time as required by s.20(4) of the Act.
For the reasons mentioned above we are of the opinion that no interference with the decision of the High Court is called for in this case.
The appeal fails and is dismissed with costs.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant landlady filed a suit for recovering possession from the respondent tenant on the allegation that the demised property was situated beyond the municipal limits of the town, and was exempt from the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act 1972, that it was let out to the respondent on a rent of Rs. 360 per mensem, that the tenancy had come to an end by efflux of the time fixed in the rent note, and that as the respondent was in arrears of rent to the extent of Rs. 3,960 she was entitled to recover possession of the premises with the arrears of rent.
The respondent oppose the suit contending that the property was situated within three kilometres of the municipal limits of the town and was, therefore, governed by the provisions of the Act, denied that the rent was Rs. 360 per mensem and contended that it was only Rs. 125 per mensem, denied that he had executed the rent note, and the tenancy had come to an end by efflux of time, that the amounts claimed as arrears of rent and mesne profits were wrong and excessive, that the notice to quit was invalid in law and that the suit was barred by the provisions of section 20 of the Act.
The Additional District Judge who tried the suit exercising jurisdiction as a Judge of Small Causes Court, found that the property was situate within three kilometres of the municipal limits and was governed by the provisions of the Act, that the tenancy for the period of 11 months under the rent note had come to an end by efflux of time, and the parties were governed by it, and that the suit was governed by the provisions of section 20 of the Act.
On the question whether the respondent was liable for eviction it was held that though the respondent had deposited the full amount of rent as claimed at Rs. 360 per mensem together with damages for use and occupation, interest and costs as required by section 20(4) of the Act amounting to Rs. 7,490 a day after the first hearing date fixed for the suit, as the respondent had contended in the written statement that the rent was Rs. 125 per mensem the deposit of Rs. 7,490 towards arrears, interest and costs was not unconditional and therefore invalid 584 and section 20(4) of the Act did not help the respondent.
The suit was accordingly decreed for eviction with arrears of rent and mesne profits.
The respondent filed a revision petition and a Division Bench of the High Court noticed that one of the conditions of section 20(4) of the Act was that the tenant should unconditionally pay or deposit the entire amount due together with interest and costs, and that section 20(6) says that any amount deposited under section 20(4) shall be paid to the landlord without prejudice to the pleadings of the parties, and that in the instant case the deposit would not be a conditional deposit merely because the respondent had contended in the written statement that the rent was Rs. 125 per mensem and not Rs. 360 per mensem as alleged in the plaint.
The civil revision petition was allowed and the suit was dismissed with costs.
Dismissing the appeal, ^ HELD: 1.
The suit in the instant case, is not based on any of the grounds mentioned in section 20(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and though the respondent is alleged to have been in arrears of rent to the extent of Rs. 3,960 there is no allegation in the plaint that he is in arrears of rent for not less than four months and had failed to pay the same to the appellant within one month from the date of service upon him of a notice of demand, which is the ground mentioned in clause (a) of section 20(2) of the Act.
[588 G H] 2.
No interference with the decision of the High Court is called for.
The District Judge should have normally dismissed the suit for want of jurisdiction in view of section 20(1) of the Act on his finding that the Act is applicable to the premises.
It is not known why he did not do so, but on the other hand proceeded to hold that the deposit by the respondent is not unconditional as required by section 20(4) of the Act and ordered his eviction on that basis.
[589 A B] 3.
It is not possible to construe section 20(4) in the manner done by the District Judge as that would amount to foreclosure of any defence regarding the quantum of rent even in cases where the amount alleged by the landlord is more than the actual rent agreed to between the parties.
[589 C] In the instant case, it had been found by the District Judge that the arrears of rent at the rate claimed in the plaint together with interest and cost had been deposited within the time mentioned in section 20(4) of the Act.
Merely because the tenant had failed to prove his case that the rent was only Rs. 125 per mensem and not Rs. 360 per mensem, the discretionary relief could not be denied to him.
[590 E; 591] Mangal Sen vs Kanchhid Mal, [1982] I SCR 331 at 336 distinguished.
The Act is a social piece of legislation which leans in favour of tenants.
It is not possible to lay down any broad and general proposition that 585 the discretionary relief should be denied to the tenant in all cases where he fails to prove his case regarding the quantum of rent even though he had deposited the rent at the rate claimed by the landlord in the plaint together with interest and costs within the time as required by section 20(4) of the Act.
[590 H; 591 B]


judgement:
Civil Appeal No. 4123 of 1984.
From the Judgment and Order dated 28.8.84 of the Punjab and Haryana High Court in E.P. No. 1 of 1984.
H.L. Sibal, O.C. Mathur, section Sukumaran and D.N. Misra for the Appellant.
S.N. Kacker, Mahabir Singh, L.K. Pandey, N. section Bishnoi, P.K. Sandhir and D.K. Garg for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal under Section 116A(1) of the Representation of the People Act, 1951 ( 'Act ' for short) is directed against the judgment of the Punjab & Haryana High Court 595 setting aside the election of the appellant to Fatehabad Constituency of the Haryana Legislative Assembly.
By Notification dated November 23, 1983, the Constituency was called upon to elect a member at the by election.
November 30, 1983, was appointed as the last date for receipt of nomination papers.
Scrutiny was scheduled for December 1, 1983.
Poll was held on December 23, 1983 and appellant was declared as the returned candidate by securing 1339 votes in excess of votes polled by respondent 1 who had been fielded as the common opposition candidate.
On February 2, 1984, the respondents filed an Election Petition asking the election of the appellant to be set aside on the ground provided under s.100(1)(c) of the Act by the pleading that the nomination papers of two candidates being Mani Ram Chapola and Raj Tilak had been improperly rejected by the Returning Officer.
The appellant pleaded that the nomination papers were defective and, therefore, liable to be rejected and the Returning Officer had acted properly in rejecting them.
It was further pleaded that defective nomination papers had been intentionally filed with a view to challenging the election in case it went in favour of the appellant.
Both sides led oral evidence.
On the side of the election petitioners, the Assistant Returning Officer among others was examined as PW.4 while for the returned candidate (respondent before the High Court), the Returning Officer was examined as R.W.3.
The nomination papers as also the orders of rejection were produced and duly exhibited.
The High Court came to hold that the nomination papers when filed were in order and while they were in the custody of the Returning Officer 's establishment, interpolations had been made and on the basis thereof the nomination papers had been rejected.
Though the election petitioners failed to establish their plea contained in paragraph 16 of the election petition that the Returning Officer acted mala fide at the behest of the Chief Minister of the State, the Court took the view that the Returning Officer acted mala fide and had either directly or indirectly been responsible for the alteration in the nomination papers.
Accordingly the election has been set aside and the Returning Officer 's conduct has been criticised and he has been directed by the High Court to share the liability of half the costs of the election petition.
The Returning Officer had filed a separate appeal which is being disposed of today by a separate judgment.
There is no dispute before us that if the nominations of the two candidates Mani Ram Chapola and Raj Tilak are found to 596 have been improperly rejected the election of the appellant must be held to have been rightly set aside.
That is the effect of s.100(1) (c) of the Act.
The only question relevant for the disposal of this appeal is, therefore, to examine and decide whether the High Court was right in its conclusion that the two nomination papers had been improperly rejected.
The relevant nomination papers relating to Mani Ram Chapola and Raj Tilak have been produced and proved as Exhibits P 1 and P 6 respectively.
The orders made by the Returning Officers rejecting the two nomination papers have also been produced and marked as Exhibits.
Similarly, the notice in statutory form 3A as required under rule 7 of the Conduct of Election Rules, 1961, to be published in the notice board of the Returning Officer has been produced and exhibited.
The Returning officer 's order of rejection in respect of both the nomination papers is almost in similar terms.
We, therefore, propose to extract one of them for convenience.
The order of rejection reads thus: "S.No. of the vote of proposer does not tally with S.No.
mentioned in voter list.
Hence rejected.
" The order is cryptic and there is force in the submission of Mr. Kacker appearing for the respondents that the order has to be interpreted; otherwise it makes no meaning.
All parties have agreed before us that the true import of the order is that the serial number of the proposer disclosed in the nomination paper did not tally with the serial number given in the electoral roll.
On that ground each of the nomination papers has been rejected.
It is the case of the election petitioners and the High Court has accepted that stand that the nomination papers were received by the Assistant Returning Officer, PW.4, and he caused the notice in form 3A to be prepared for being put in the notice board.
The proposer of Mani Ram Chapola was one Brij Bhushan while the proposer of Raj Tilak was one Upender Kumar.
Brij Bhushan 's serial in the electoral roll was 26 while Upender Kumar 's was 77.
In form 3A these numbers have been correctly indicated.
But in the nomination papers the number have been shown as 126 and 177 respectively.
The discrepancy has arisen on account of the appearance of the figure '1 ' before the correct number in the electoral roll.
The Assistant Returning Officer P.W.4 has stated: 597 "I had received the nomination papers from the candidates who wanted to contest election to the Fatehabad constituency in the by election between 26.11.1983 to 30.11.1983 in my capacity as Assistant Returning Officer of that constituency.
I have seen Ex P.I 1, the nomination paper of Shri Mani Ram Chapola and exhibit
P6, the nomination paper of Shri Raj Tilak when I received these two nomination papers.
I had compared the vote number of the candidate and the proposer with the electoral roll of that constituency.
" The witness further said: "The correct position of these nomination papers which I found regarding the vote numbers of the candidate and the proposer is reflected in notice in form 3A, the office copy of which is Ext.
P 3 and the original taken away from the notice board and produced by the election petitioners has been marked as exhibit
P 10".
In view of the statement by PW.4, the High Court was right in its conclusion that the respective nomination papers contained the correct serial numbers in the electoral roll of the proposer in each of them.
These nomination papers were made over by the Assistant Returning Officer between 9 and 9.30 A.M. to the Naib Tashsildar incharge of elections on December 1,1983, under instructions from the Returning Officer.
December 1, 1983, was the date appointed for scrutiny and as the evidence shows, the Assistant Returning Officer was not available at the time of scrutiny as deposed to by him as also by the Returning Officer.
There is no evidence that the nomination papers were handled by the Naib Tahsildar, Elections, and the Kanungo, Elections, as also other members of the staff at the time when form 3A was typed out.
Even when the work of scrutiny began the nomination papers which were 45 in number were taken by the candidates and their agents for inspection and for some time they were handled by them.
We have looked into the nomination papers with great care but by merely looking at them it is difficult to say at what point of time the figure '1 ' has been inserted in the prescribed column against the proposer 's serial number in both of them.
When admittedly the nomination papers have been handled by the staff in the establishment of the Returning Officer and by the candidates and 598 their agents before scrutiny began, it is difficult to ascribe the insertion of figure '1 ' to the Returning Officer.
We agree with the High Court that for the effective functioning of democracy in a large polity as ours the election process has got to be free from blemish and officers in whom trust has been reposed to conduct the electoral process in a fair and decent way cannot be permitted to hobnob or interpolate with valuable documents like nomination papers.
At the same time it must be remembered that the credibility of public officers assigned the sacred trust should not be doubted on mere suspicion and without acceptable evidence.
The conclusion of the High Court that the Returning Officer either by himself or through somebody caused the interpolation to be done is totally unwarranted even if we accept as a fact that the figure '1 ' appearing before the rest of the number of the column for serial number in the electoral roll was not there when the nomination papers had been filed.
Strictly speaking, the insertion in the instant case is a forgery and amounts to a criminal act.
To put that responsibility on the Returning Officer without cogent evidence is highly improper and the conclusion of the High Court does not commend itself to us.
The election petitioners had pleaded that they were present before the Returning Officer when the process of the scrutiny started.
They alleged that the Returning Officer made an announcement that all the nomination papers were in order and after hearing the same most of them and in particular the two candidates whose nomination papers were rejected went away.
From the evidence it is clear that the nomination papers were taken up for scrutiny one after the other and the Returning Officer has stated that he used to pass orders either of acceptance or rejection of each of the nomination papers after due scrutiny.
That position has also been accepted by witnesses on the election petitioners.
The evidence on the side of the election petitioners does indicate that the nomination papers were first shown to the candidates and their agents and scrutiny followed thereafter.
The Returning Officer has denied, as already pointed out, that he had made an open declaration that all the nomination papers were in order.
Mani Ram Chhapola has admitted in his deposition that by 2 P.M. on the date of scrutiny the fact that his nomination paper had been rejected on the ground indicated has been notified to him by the Returning Officer.
If the Returning Officer wanted to play any mischief he could have avoided intimating the fact of rejection or at any rate delayed the same.
In the absence of cogent evidence on the side of the election petitions and accepting the evidence of the 599 Returning Officer that he had scrutinised the nomination papers one after the other and contemporaneously accepted or rejected the same by providing grounds of rejection, we hold that the orders of rejection nomination papers in the two cases relevant for the appeal, contemporaneous ordered had been made.
When scrutiny was taken up Mani Ram Chhapola and Raj Tilak on their own showing were not present before the Returning Officer.
Similarly, the proposers, Brij Bhushan and Upender Kumar were also absent.
Though there is a evidence on the side of the election petitioners that the Assistant Returning Officer was present at the time of scrutiny, he as P.W.4 has categorically denied that fact The Returning Officer, RW.3 has stated that the Assistant Returning Officer was not present when he took up scrutiny of the nomination papers.
There is also evidence from the side of the appellant that the Assistant Returning Officer was not present.
We accept as a fact that the Assistant Returning Officer was not present at the time of scrutiny.
There were 45 nomination papers to be scrutinised.
It is the evidence of the Returning Officer that he scrutinised all the nomination papers one by one.
PW.5 who is a practising Advocate and was a proposer of one of the election petitioners examined as PW.3 has stated: "After the departure of some of the people, the Returning Officer compared the entries in the nomination papers one by one with the relevant electoral rolls.
" In view of such evidence there was no justification to hold otherwise.
The evidence of RW.4, the Returning Officer was placed before us once by Mr. Sibal for the appellant and over again by Mr. Kacker for the respondents.
The Returning Officer has deposed that he passed the orders of rejection of nomination papers at the time of scrutiny and he rejected those nomination papers as the serial number of the proposers as disclosed in the nomination papers did not tally with reference to the electoral roll.
In the two nomination papers the Returning Officer put tick marks against the name of the candidate as also the name of the proposer and specification of the part in the electoral roll of the proposer.
He has put cross marks as against the serial number.
RW.3, stated in Court: "At the time of scrutiny I had the nomination papers before me.
The election staff, including Election Naib 600 Teshsildar, Quanungo, etc. were helping me in tracing out the relevant entries from other records, like electoral rolls etc.
When after location they used to put before me, I used to tick mark on the nomination papers.
At the time of scrutiny when I found the entries in the nomination papers are correct, I used to tick mark each entry.
In those nomination papers I found the entries not to be tallying with the other records and on this basis I found those to be incorrect, I used to put cross.
" Coming to the specific nomination papers, the witness stated: "I have seen nomination paper Ex.
P 1 of Shri Mani Ram Chhapola.
In this after reading the name of Brij Bhushan I tick marked it because that was held correct.
I have crossed his vote number because it was not found to tally with the electoral roll.
" The witness again said: "I had seen vote number 126 in the relevant voters list, which did not contain the name of Brij Bhushan:" With reference to tick marks in Ext.
P 1 which is the nomination paper of Mani Ram Chhapola, we find that there has really been no tick mark against the name of Brij Bhushan, the proposer.
If the Returning Officer had really put a tick mark against the name of Brij Bhushan there should have been four tick marks with pencil.
As a fact there are only three tick marks.
Mr. Kacker strongly contended that in view of the statement of the witness he had tick marked the name of Brij Bhushan we must not entertain a different view by a look at the document.
Having seen the document with some amount of care and having looked into other nomination papers for the pattern of tick marking by the Returning Officer, we have no doubts in our mind that the statement by the witness has been made out of confusion.
We cannot loss sight of the fact that the Returning Officer had accusations to face and he was possibly puzzled and bewildered when he was facing cross examination.
The tick mark appearing above the name of Brij Bhushan related to the candidate 's particulars.
As we have just pointed out, if Brij Bhushan 's name had been tick marked, one more tick mark should inevitably be found in the document.
Similar comments are available with reference to the nomination paper of Raj Tilak.
The stand adopted by Mr. Kacker, learned counsel for the election petitioners respondents is that if Brij Bhushan name had been tick marked, even if the serial number was wrong by the time the nomination paper came before the Returning Officer, finding out the correct serial number was not a problem and the Returning Officer who was being assisted by other public officers would have easily found it out.
Connected with this stand and the submission, reliance is placed on s.36(4) of the Act which provides 601 that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
We have already come to the conclusion that the Returning Officer had not ticked the names of Brij Bhushan and Upender Kumar.
Mr. Kacker not being satisfied with that conclusion which we had indicated during hearing, relied upon the position that the Returning Officer personally knew both Brij Bhushan and Upender Kumar and there could be no difficulty in the Returning Officer fixing them up properly with reference to the electoral roll.
This aspect requires closer examination.
Indisputably the insistence on disclosure of the serial number in the prescribed column against the proposer is for the purpose of identifying the proposer and ascertaining that he is competent to propose.
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.
This 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 s.(4) of s.36 of the Act.
The Returning Officer made reference to the electoral roll and did not find the name of the proposer against the disclosed serial number in either case.
The High Court has taken the view that it was the obligation of the Returning Officer to verify the electoral roll and find out the serial number, the mistake, if any, was not of substantial character so as to expose the nomination papers to rejection and the rejection on such a ground was improper.
To cast the obligation on the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law.
To read that as an obligation is likely to lead to a unworkable position.
The prescribed form of nomination (form 2 B) does not require to specify the name of the father of the proposer.
That actually does not become necessary because once the name and the serial number in the voters ' list are given, the cross verification become easy and the father 's name is available in the electoral roll.
In one part of the electoral roll on the average names of about a thousand voters 602 appear.
Out of one thousand name it is quite possible that there would be more than one voter by the same names.
Identification of any particular voter out of such list even when there are more voters with the same name is possible only with further reference to the father 's name.
To cast the obligation of verifying the entire electoral roll of a particular part is actually requiring the Returning Officer to do almost an impossible fact.
It may not be so if there be a few candidates and it be a case of a by election but when general election takes place and every Returning Officer is supposed to handle about seven or eight Assembly Constituencies and there may be instances of even 300 candidate contesting from one seat as it happened in the 1985 elections in the Belgaum Constituency of Karantaka State, the Returning Officer would find it physically impossible to grapple with such a situation.
The election schedule is a very tight one.
Under the law the day following the last day fixed for receipt of nomination papers is the date of scrutiny and soon thereafter follows the date fixed for withdrawal.
If nomination papers are not scrutinised with due haste and promptness the election schedule may not be operative in the strict manner and dislocation are bound to follow.
It is not the submission of Mr. Kacker, and rightly so, that even if the Returning Officer has not been in a position to the proposer with reference to his serial number in the electoral roll, he can accept the nomination paper to be valid.
If that to be so, it is the obligation of the Returning Officer to comply 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 s.33, sub s.(4), run 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 electoral 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 in such as to be commonly understood and the returning officers all permit 603 any such misnomer or inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
" The contents of the aforesaid proviso and the provisions of sub s.(4) of s.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 dully 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 s.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 stops 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 candidate, their election agents of 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 a mistake, clerical in natural, 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 604 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 s.(4) of s 36 of the Act.
That view has been taken recently by this Court in Brij Mohan vs Sat Pal, to which two of us are parties.
We endorse the ratio of the decision and applying the same, we agree with Mr. Sibal that the nomination papers were validly rejected in this case.
Mr. Sibal thereafter contended that Mani Ram Chhapola and Raj Tilak had designedly entered wrong references to the electoral roll in respect of their proposers with a view to challenging the election of the returned candidate if necessary.
The evidence on record is not impressive as apart from bare suggestions there is no material worth the name to accept it as a fact.
We are also of the view that once we have reached the conclusion in the manner indicated above, it is totally unnecessary to go into such an aspect.
On the analysis indicated, the view taken by the High Court cannot be sustained.
We allow the appeal, vacate the judgment of the High Court and uphold the election of the appellant as the returned candidate from the Constituency in question.
The appellant shall be entitled to his costs before the High Court as also before this Court.
Hearing fee in this Court is assessed at.
Rs. 3,000 M.L.A. Appeal allowed.

summary:
Respondents challenged in the High Court the election of the appellant to Fatehbad Constituency of the Haryana Legislative Assembly under s.100(1) (c) of the Representation of the People Act 1951 (Act, for short) on the ground that the nomination papers of two candidates being Mani Ram Chhapola and Raj Tilak had been improperly rejected by the Returning Officer.
The proposer of Mani Ram Chhapola was one Brij Bhushan while the proposer of Raj Tilak was one Upender Kumar.
Brij Bhushan 's serial number in the electoral roll was 26 while Upender Kumar 's was 77.
In Form 3A, these numbers were correctly indicated.
But in the nomination papers the numbers had been shown as 126 and 177 respectively The Returning Officer rejected these nomination papers as the serial number of the proposers as disclosed in the nomination papers did not tally with reference to the electoral roll.
The High Court set aside the election of the appellant holding that the Returning Officer acted mala fide and had either directly or indirectly been responsible for the alteration in the nomination papers, since the nomination papers when filed were in order and while they were in the custody of the Returning Officer 's Establishment, interpolations had been made and on the basis thereof the nomination papers had been rejected.
Allowing the appeal to this Court by the appellant, ^ HELD: 1.
(i) When admittedly the nomination papers have been handled by the staff in the establishment of the Returning Officer and by the candidates and their agents before scrutiny began, it is difficult to ascribe the insertion of figure '1 ' to the Returning Officer.
Therefore, the conclusion of the High Court that the Returning Officer either by himself or through somebody caused the interpolation to be done is totally unwarranted even if this Court accepts as a fact that the figure '1 ' appearing before the rest of the number in the column for serial number in the electoral roll was not there when the nomination papers had been filed.
Strictly speaking, the insertion in the instant case is a forgery and amounts to a criminal etc.
To put that responsibility on the Returning Officer without cogent evidence is highly improper.
[597H; 598A; C D] 593 1.
(ii) From the evidence it is clear that the nomination papers were taken up for scrutiny one after the other and the Returning Officer has stated that he used to pass orders either of acceptance or rejection of each of the nomination papers after due scrutiny.
That position has also been accepted by witnesses on the sides of the election petitioners.
The evidence on the side of the election petitioners does indicate that the nomination papers were first shown to the candidates and their agents and scrutiny followed thereafter.
The Returning Officer had denied, as already pointed out, that he had made an open declaration that all the nomination papers were in order.
Mani Ram Chhapola has admitted in his deposition that by 2 P.M. on the date of scrutiny the fact that his nomination paper had been rejected on the ground indicated had been notified to him by the Returning Officer.
If the Returning Officer wanted to play any mischief he could have avoided intimating the fact of rejection or at any rate delayed the same.
In the absence of cogent evidence on the side of the election petitioners and accepting the evidence of the Returning Officer that he had scrutinised the nomination papers one after the other and contemporaneously accepted or rejected the same by providing grounds of rejection, there is no doubt that contemporaneous order rejecting the nomination papers had been made in the instant cases.
[598 F H; 599A] 2(i) Indisputably the insistence on disclosure of the serial number in the prescribed column against the proposer is for the purpose of identifying the proposer and ascertaining that he is competent to propose.
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.
This 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 s.36 of the Act.
Therefore, to cast the obligation of the Returning Officer to look through the entire electoral roll of a particular part with a view to finding out the identity of the proposer is not the requirement of the law.
To read that as an obligation is likely to lead to a unworkable position.
[601 C F] 2(ii) The contents of the proviso to S.33 sub section (4) and the provisions of sub section (4) of section 36 of the Act 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 another 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.
[603 B D] 594 2(iii) In the instant case, 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 Returning Officer was satisfied that it was a 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.
Moreover, it could not be 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.
When scrutiny was taken up Mani Ram Chhapola and Raj Tilak on their own showing were not present before the Returning Officer.
Similarly, the proposers, Brij Bhushan and Upender Kumar were also absent.
Though there is evidence on the side of the election petitioners that the Assistant Returning Officer was present at the time of scrutiny, he as PW.4 has categorically denied that fact.
The Returning Officer, RW.3, has stated that the Assistant Returning Officer was not present when he took up scrutiny on the nomination papers.
There is also evidence from the side of the appellant that the Assistant Returning Officer was not present.
In the circumstances, if the nomination papers have been rejected for mistake 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.
Therefore, the nomination papers were validly rejected.
Brij Mohan vs Sat Pal, C.A. No. 2650/84 disposed of on 13.3.85 followed.
[603 E H; 599 B D; 604 B C]