Jankar Vs. Ranjitsinh Vijaysinh Mohite-Patil  INSC 1100 (15 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7457 OF 2008 Uttamrao
Shivdas Jankar ...Appellant Versus Ranjitsinh Vijaysinh Mohite-Patil
S.B. SINHA, J :
extent of jurisdiction of a returning officer to determine a question as to
whether a nomination paper filed by an applicant to enable him to contest an
election in terms of the provisions of the Representation of the People Act,
1951 (for short "the Act") on the premise that the names of the
proposers were forged is the question involved in this appeal. It arises 2 out
of a judgment and order dated 26.08.2008 passed by the Bombay High Court in
Election Petition No. 1 of 2004.
an election to the local authorities constituency Solapur for Maharashtra
Legislative Council Biennial Elections, 2003 was to take place. The parties
hereto contested the said election. For the said purpose, the returning officer
issued a notification declaring the programme for election of the said
constituency in terms whereof nomination papers were to be submitted by
14.11.2003 before 3.00 p.m. and the scrutiny thereof was to be completed in his
office on 15.11.2003 at 11.00 a.m.
filed his nomination paper in the prescribed form in the office of the
Returning Officer on 14.11.2003. As is required, his name was proposed by 10
voters. Sharif Mohammed Badshah Sutar and Sau. Jaymala Purnanand Mhetre (for
short "the proposers") were the proposer Nos. 7 and 8 respectively.
All the proposers signed the nomination papers in presence of each other as
also in presence of the appellant and one Ratan Govind Pandit, brother of
Proposer No. 8.
candidates took part in the scrutiny of nomination papers.
Respondent raised an
objection to the nomination of the appellant on the premise that the proposer
Nos. 7 and 8 had not signed the nomination papers. A written objection to the
aforementioned effect was also filed before the returning officer. Similar
objection was also raised in relation to the nomination of Shri Subhash Rajaram
Patil, another candidate. The aforementioned alleged proposers also submitted
letters containing identical contentions that they had not signed the
nomination papers of the appellant and, thus, the same should be rejected. They
also affirmed affidavits inter alia contending that their signatures in the
nomination papers were forged.
In response thereto,
appellant filed three affidavits, viz., (i) affirmed by himself, (ii) jointly
affirmed by five of his proposers and (iii) by Ratan Govind Pandit, brother of
proposer No. 8. In the said affidavits, it was stated that the nomination
papers bore the signature of the aforementioned proposer Nos. 7 and 8. It was
furthermore contended that the affidavits filed by the proposer Nos. 7 and 8 were
allegedly prepared by Shri Jaksan, Advocate & Notary, Solapur which was not
mentioned in his register.
is, however, not in dispute that in terms of the request made by the appellant
the records of the office of Mangalwedha Municipal Council whereof the proposer
Nos. 7 and 8 were members were called for the purpose of verification of their
scrutiny of the nomination papers was adjourned till 3.45 p.m. on 15.11.2003.
The matter was again taken up at the said time. The returning officer compared
the signatures of the said proposers. They were also present before him.
Admittedly inter alia on the premise that the signatures of proposer Nos. 7 and
8 were not genuine, the nomination of the appellant was rejected. By a separate
order, the nomination of Shri Subhas Rajaram Patil was also rejected. Another
candidate Shri Dilip Dyandeo Chougule withdrew his candidature as a result
whereof the respondent was declared elected as an uncontested candidate in
terms of Section 53(2) of the Act read with Rule 11(1) of the Conduct of
Election Rules, 1961 (for short "the Rules").
filed a writ petition questioning the rejection of his nomination which,
however, was permitted to be withdrawn on 20.12.2003 allowing the appellant to
pursue appropriate remedies available to him.
allegedly obtained forensic examination reports from the Forgery Detection
Private Bureau upon comparative analysis of the signatures of the said two
proposers in the nomination papers and the sample signatures contained in the
attendance sheets of Mangalwedha Municipal Council on 20.12.2003.
alia relying on or on the basis of the reports of the experts as also
questioning the mode and manner in which the decision making process had been
resorted to by the returning officer, he filed an election petition on
30.12.2003, which was marked as Election Petition No. 1 of 2004.
indisputably filed an interlocutory application which was marked as Application
No. 1 of 2004 for summary dismissal of the said petition contending that
although the same was based on allegations of corrupt practices within the
meaning of Section 100(d)(ii) of the Act but it 6 did not contain the material
particulars as required under Section 83(1)(b) of the Act read with Rule 94-A
of the Rules.
hearing of the said proceeding, the counsel appearing on behalf of the
appellant inter alia contended that what was in question in the election
petition was the decision making process on the part of the Returning Officer
and it was not a case where the election petition was based on the allegations
of corrupt practices.
reason of a judgment and order dated 25.11.2004, the aforementioned application
No. 1 was dismissed, stating:
"14. It is really
a matter of interpretation whether the petitioner has verified merely the fact
that the said affidavits have been relied or whether he has verified the truth
of the contents thereof.
However, in my
opinion this application can be disposed of on a narrower issue and without
deciding whether or not the petitioner has made the alleged corrupt practices
as a part of the cause of action on the basis of which the reliefs in the
Election Petition have been prayed for. I will assume for the purpose of which
order that the petitioner has alleged corrupt practices on the part of the
7 Noticing that the
election was challenged in terms of Section 100(1)(c) and (d)(iv) of the Act,
it was opined that the election petition was maintainable on the aforementioned
It was, however,
with this order it is necessary to refer to the fact that Mr. Aney reiterated
that the petitioner, for the purpose of this petition, does not allege any
corrupt practice by or on behalf of the respondent. Thus at the trial, the
petitioner shall not seek to raise or frame any issue in this regard.
It will not be
necessary for the respondent in his written statement to deal with any corrupt
practice including those alleged in the writ petition or in Exhibits H, I and J
to the Election Petition. This logically follows from paragraph No.28 of the
election petition and Mr. Aney's statement that it is the decision making
process/the manner in which the Returning Officer has come to his decision that
is under challenge and the sole basis on which the election petition is based.
It is further clarified that all contentions with respect to the grounds on
which the Election Petition is found are kept open including the grounds of
non-joinder of necessary parties as well as the ground that by merely by even
successfully challenging the decision making process adopted by the Returning
Officer the election is not liable to be set aside."
filed his written statement thereafter. The learned Judge of the High Court
framed the following issues in the election petition:
"1. Whether the
Petitioner proves that his nomination for election to the Local Authorities
Constituency, Solapur of the Maharashtra Legislative Council Biennial Elections
2003 was improperly rejected by the Returning Officer?
2. Whether the
Returning Officer committed breach of the provisions of Sub-section (1) of
Section 36 of the Representation of the People Act, 1951 by entertaining
Petitioner's two proposers namely; Sau.
Mhetre and Sharif Mohammad Badshah Sutar personally at the time and place of
scrutiny of the nomination and by further accepting and relying on their
affidavits and written complaints, as alleged by the petitioner?
3. Whether the
enquiry conducted by the Returning Officer resulting into the rejection of the
Petitioner's nomination for the election in question was not in accordance with
the provisions of sub-section (2) of Section 36 of the Representation of the
People Act, 1951, as alleged by the petitioner?
4. Whether the
Petitioner proves that result of the election in question, in so far as it
concerns the returned candidate i.e.
has been materially affected by non-compliance with the 9 provisions of
Sub-sections (1) and (2) of Section 36 of the Representation of the People Act,
5. Whether the
election of the Respondent as member of the Maharashtra Legislative Council
from the Local Authorities Constituency, Solapur and the Maharashtra
Legislative Council Biennial Election, 2003 is void and liable to be set aside
on the grounds provided under clause (c) of sub- section (1) of Section 100 or
both of the Representation of the People Act, 1951?
6. What order is the
Petitioner entitled to, if any?"
thereafter affirmed an affidavit in lieu of his examination- in-chief;
paragraph 3 whereof reads as under:
"...I say that
the ten electors of the said constituency i.e. Arun Balasaheb Killedar,
Pandurang Vitthal Taad, Maksuud A. Rahim Bhagwan, Anna Damodar Raut, Vijay Soma
Khavatode, Dhananjay Appasaheb Koli, Sharif Mohammad Badshah Sutar, Sau.
Jaymala Purnanand Mhetre, Dattatrya Balasaheb Kambale and Sau Indrabai Bapu
Metkari whose names have been mentioned by me in paragraph five of Election
Petition had agreed to stand as prosposers on my request, including the two
electros mentioned at Sr. No.7 and 8 i.e. Sharif Mohammed 1 0 Badshah Sutar
and Sou. Jaymala Purnanad Mhetre.
I say that
accordingly all the said ten electors and one Ratan Govind Pandir came to
residence of Arun Balasaheb Killedar at Mangalvedha as per my request around
10.11 am to 10.30 am on 14.11.2003. I say that around 10.00 am to 10.30 am. I
myself was present at the residence of said Arun Balasaheb Killedar along with
Ratan Govind Pandit and the said ten proposers and some other supporters. I say
that I first signed the nomination paper in prescribed form and thereafter all
the said ten proposers including the proposers at Sr.No.7 and 8 mentioned in
paragraph five of Election Petition also signed in my presence and in presence
of each other including in presence of Ratan Govind Pandit and other persons.
The said Ratan Govind Pandit is real brother of Sou.
Mhetre. I have already filed a copy of the said nomination paper on record
along with petition at Exhibit `B'. I have also caused to call for the original
of said nomination paper through summons from office of the Returning Officer.
The officer from the office of Returning Officer has already produced on record
the said nomination listed at Sr.No.2 in the list produced along with
documents. I have seen the original from the record. I identify my signatures
on it and signatures of all ten proposers. I say that Sharif Mohammed Badshah
Sutar and Sou. Jaymala Purnanand Mhetre have signed on said nomination paper at
Sr.No.7 and 8 respectively in the column provided in the nomination for
signatures of the proposers. I also identify their signatures. I say that the
contents of nomination paper are true and correct. The said nomination paper be
exhibited and read in evidence."
objection was raised thereto by the respondent contending that in view of the
concession made by the counsel of the appellant that the election petition was
limited to the challenge to the decision making process of the returning
officer, it is impermissible in law to allow him to raise a contention that the
signatures of proposer Nos. 7 and 8 were in fact genuine. The said objection
was upheld by the High Court by reason of an order dated 26.11.2007 holding
that the appellant was bound by the concession made by his counsel. The said
concession was sought to be withdrawn on the premise that it had wrongly been
made. Appellant was given liberty to file an appropriate application for
terms of the liberty so granted, the appellant filed an application, which was
marked as Application No. 2 of 2008. However, the said application was allowed
to be withdrawn by an order dated 24.04.2008 as was requested by the counsel
appearing on behalf of the appellant reserving his right to raise the same in
an appeal that may be filed before this Court.
thereafter intended to adduce evidence that the said proposers were in the camp
of the respondent. An objection raised in that 1 2 regard by the respondent,
however, was overruled, subject to the clarifications made by the learned Judge
in his order dated 24.06.2008.
thereafter was cross-examined. By reason of the impugned judgment, the High
Court dismissed the said election petition opining that the returning officer
had not committed any error in his decision making process in rejecting the
said nomination paper.
has, thus, filed this appeal under Section 116A of the Act.
K.V. Viswanathan, learned senior counsel appearing on behalf of the appellant
(i) The Returning
Officer in rejecting the nomination paper committed a manifest error of law
insofar as he failed to take into consideration the purport and object of
Section 36(2) of the Act as also the guidelines issued by the Election
Commission of India contained in the `Handbook for Returning Officers'.
1 3 (ii) The
returning officer in his order having not taken into consideration the
affidavits affirmed on behalf of the appellant misdirected himself in law; as
the same were relevant for the purpose of determination of the issue.
(iii) In any event,
the High Court committed a serious error insofar as it did not grant any
opportunity to the appellant to adduce evidence in support of his contention
that the nomination papers were in fact signed by the said proposers and only at
a later point of time, they were won over.
L. Nageshwar Rao, learned senior counsel appearing on behalf of the respondent,
on the other hand, would urge:
(i) The Returning
Officer granted sufficient opportunity to the appellant herein not only to
adduce evidence but also in acceding to his request to call for the records of
the Municipal Council and, in any event, he cannot be said to have committed
any error in his decision making process.
1 4 (ii) Keeping in
view the statutory mandate contained in Section 36(5) of the Act read with the
proviso appended thereto, as no adjournment could be granted, he was bound to
dispose of the objection of the respondent promptly.
(iii) The High Court
cannot be said to have committed any error of law in holding that the statement
made by the proposers before the authority coupled with their affidavits could
have been given primacy over the affidavits affirmed on behalf of the appellant.
(iv) Keeping in view
the grounds raised in the election petition, viz., the scope of enquiry being
summary in nature and limited, the returning officer had exceeded his
jurisdiction in allowing the proposers to file affidavits and documents, it
does not lie in the appellant now to contend that the affidavits filed on his
behalf should also have been taken into consideration.
(v) The issues having
been framed strictly in terms of the pleadings of the parties and no specific
issue with regard to the genuineness or otherwise of the signatures of the
proposers having been raised in the written statement, the High Court cannot be
said to have committed any error in passing the impugned judgment.
Act was enacted for the conduct of elections to the Houses of Parliament and to
the House or Houses of the Legislature of each State, the qualifications and
disqualifications for membership of those Houses, the corrupt practices and
other offences at or in connection with such elections and the decision of
doubts and disputes arising out of or in connection therewith.
"sign" has been defined in Section 2(i) of the Act to mean "in
relation to a person who is unable to write his name means authenticate in such
manner as may be prescribed".
Part V of the Act
provides for conduct of elections. Section 30 mandates the Election Commission
to issue a notification appointing dates of nominations, etc. Section 31
provides for public notice of election.
Qualification of a
person for nomination of a candidate is provided for in Section 32. Section 33
details the mode and manner in which a nomination is to be filed. Section 35
empowers the returning officer to inform the person, who is delivering the
nomination papers, the date, time and place 1 6 fixed for the scrutiny of
nominations. Section 36 of the Act provides for scrutiny of nominations.
Sub-sections (1), (2) and (5) thereof read as under:
"36 - Scrutiny
of nominations (1) On the date fixed for the scrutiny of nominations under
section 30, the candidates, their election agents, one proposer of each
candidate, and one other person duly authorised in writing by each candidate
but no other person, may attend at such time and place as the returning officer
may appoint; and the returning officer shall give them all reasonable
facilities for examining the nomination papers of all candidates which have
been delivered within the time and in the manner laid down in section 33.
(2) The returning
officer shall then examine the nomination papers and shall decide all
objections which may be made to any nomination and may, either on such
objection or on his own motion, after such summary inquiry, if any, as he
thinks necessary, reject any nomination on any of the following grounds :-- (a)
that on the date fixed for the scrutiny of nominations the candidate either is
not qualified or is disqualified for being chosen to fill the seat under any of
the following provisions that may be applicable, namely:-- Articles 84, 102,
173 and 191,.
Part II of this Act
and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of
1963); or (b) that there has been a failure to comply with any of the
provisions of section 33 or section 34; or (c) that the signature of the
candidate or the proposer on the nomination paper is not genuine.] 1 7 (3) ***
*** (4) *** *** (5) The returning officer shall hold the scrutiny on the date
appointed in this behalf under clause (b) of section 30 and shall not allow any
adjournment of the proceedings except when such proceedings are interrupted or
obstructed by riot or open violence or by causes beyond his control:
Provided that in case
an objection is raised by the returning officer or is made by any other person
the candidate concerned may be allowed time to rebut it not later than the next
day but one following the date fixed for scrutiny, and the returning officer
shall record his decision on the date to which the proceedings have been
Sub-section (6) of
Section 36 mandates that the returning officer shall endorse on each nomination
paper his decision accepting or rejecting the same and in any event an order of
rejection is passed, he is required to record in writing a brief statement of
his reasons therefor.
23. Indisputably, the
Election Commission of India has issued a Handbook for Returning Officers (for
short "the Handbook"). We are concerned with Chapter VI of the
Handbook. Paragraph 1 of the said Chapter provides for scrutiny of nominations
by the returning officer.
Paragraph 2 provides
for restriction of entry of persons at the scrutiny.
Paragraph 4 mandates
that all nomination papers were to be scrutinized by the returning officer.
Paragraph 5 provides for objections and summary enquiry, stating:
"5. Even if no
objection has been raised to a nomination paper, you have to satisfy yourself
that the nomination paper is valid in law. If any objection is raised to any
nomination paper, you will have to hold a summary inquiry to decide the same
and to treat the nomination paper to be either valid or invalid. Record your
decision in each case giving brief reasons particularly where an objection has
been raised or where you reject the nomination paper. The objector may be
supplied with a certified copy of your decision accepting the nomination paper
of a candidate after overruling the objections raised by him, if he applies for
Your decision may be
challenged later in an election petition and so your brief statement of reasons
should be recorded at this time."
There exists a
presumption of validity, as adumbrated in paragraph 6 thereof. It reads, thus:
"6. There is a
presumption that every nomination paper is valid unless the contrary is prima
facie obvious or has been made out. In case of a reasonable doubt as to the
validity of a nomination paper, the benefit of such doubt must go to the
candidate concerned and the nomination paper should be held to be valid.
Remember that when ever a candidate's nomination paper has been improperly
rejected and he is prevented thereby from contesting the election, there is a
1 9 legal presumption that the result of the election has been materially
affected by such improper rejection and the election will, therefore, be set
aside. There is no such legal presumption necessarily in the converse case
where a candidate's nomination has been improperly accepted. It is always
safer, therefore, to be comparatively more liberal overlooking minor technical
or clerical errors rather than strict in your scrutiny of the nomination
Paragraph 7 makes the
scrutiny of the nomination by the returning officer a quasi-judicial duty. It
reads as under:
holding the scrutiny of nomination paper, you are performing an important
quasi- judicial function. You have, therefore, to discharge this duty with
complete judicial detachment and in accordance with highest judicial standards.
You must not allow any personal or political predilections to interfere with
the procedure that you follow or the decisions you take in any case, fairness,
impartiality and equal dealing with all candidates are expected of you by law.
You must also depart
yourself in such a manner that it would appear to all concerned that you are
following this high code of conduct. Even if a candidate or his agent is
difficult or cantankerous, you must exercise courtesy and patience. But at the
same time you have to be firm so that your task may be accomplished in a
prompt, orderly and business like manner."
2 0 24. Before the
High Court, the parties had raised a large number of issues.
The High Court,
however, proceeded on the basis, keeping in view the aforementioned purported
concession made by the learned counsel on behalf of the appellant, that the
standard for interference therewith will be the same as comes within the
purview of the power of judicial review of the High Court. In that view of the
matter, the High Court opined:
(i) The extent of
reasons and the depth of consideration to be reflected in the order passed by a
returning officer accepting or rejecting the nomination paper must of necessity
depend upon the nature of the proceeding.
(ii) As a decision is
required to be rendered within a period of one or two days, no illegality was
committed by the returning officer to take up the matter relating to scrutiny
of nomination papers at 3.45 p.m. on the same day.
(iii) The returning
officer even, in view of the differences in two sets of signatures, albeit
slight, could have rejected the appellant's nomination.
(iv) When the
proposers appeared before him, the returning officer was well within his right
to adopt the approach of relying on the 2 1 statements made before him by them
in preference to the affidavits of the parties.
It was observed:
"75. While I intend
dismissing the petition, I wish to make it expressly clear that my decision to
dismiss this petition ought not to be construed as my having disbelieved the
Petitioner's case on facts at all. In other words, this judgment ought not to
be construed as my having disbelieved the Petitioner's case that the said two
proposers had in fact signed his nomination papers or my having believed the
Respondent's case or the case of the said two proposers that they had not
signed the Petitioner's nomination forms."
25. Before adverting
to the respective contentions, we may place on record that a fair statement
made by Mr. Nageshwar Rao that Issue No. 1 framed by the High Court could have
been held to have covered the genuineness or otherwise of the signatures of the
proposers. The learned counsel, however, as noticed hereinbefore, would contend
that keeping in view the concession made by the learned counsel on behalf of
the appellant, the High Court could not have gone thereinto.
26. In our opinion,
the following questions arise for our consideration:
2 2 (i) Whether the
High Court was correct in confining itself to the `decision making process' on
the part of the Returning Officer while determining the genuineness of
signatures of the two proposers? (ii) Whether the Returning Officer having
shifted the onus of proof upon the appellant committed an error in its decision
making process? (iii) Whether the purported concession was wrong and in any
event, by reason thereof, the appellant was precluded from adducing any evidence
in regard to the genuineness of the signatures of the proposer Nos. 7 and 8, to
which he was otherwise entitled to?
27. Section 100 of
the Act provides for the grounds for declaring election to be void inter alia
in a case where a nomination has been improperly rejected. Improper rejection
of a nomination, on a plain reading of the aforementioned provision, in our
opinion, would not mean that for the said purpose an election petitioner can
only show an error in the decision making process by a Returning Officer but
also the correctness of the said decision.
exists a distinction between a decision making process 2 3 adopted by a
statutory authority and the merit of the decision. Whereas in the former, the
court would apply the standard of judicial review, in the latter, it may enter
into the merit of the matter. Even in applying the standard of judicial review,
we are of the opinion that the scope thereof having been expanded in recent
times, viz., other than, (i) illegality, (ii) irrationality and (iii)
procedural impropriety, an error of fact touching the merit of the decision
vis-`-vis the decision making process would also come within the purview of the
power of judicial review.
In Cholan Roadways
Ltd. v. G. Thirugnanasambandam [(2005) 3 SCC 241], this Court observed:
"34. ... It is
now well settled that a quasi-judicial authority must pose unto itself a
correct question so as to arrive at a correct finding of fact. A wrong question
posed leads to a wrong answer. In this case, furthermore, the misdirection in
law committed by the Industrial Tribunal was apparent insofar as it did not
apply the principle of res ipsa loquitur which was relevant for the purpose of
this case and, thus, failed to take into consideration a relevant factor and
furthermore took into consideration an irrelevant fact not germane for
determining the issue, namely, that the passengers of the bus were mandatorily
required to be examined. The Industrial Tribunal further failed to apply the
correct standard of proof in relation to a domestic enquiry, which is
"preponderance of 2 4 probability" and applied the standard of proof
required for a criminal trial. A case for judicial review was, thus, clearly
35. Errors of fact
can also be a subject-matter of judicial review. (See E. v. Secy. of State for
the Home Deptt.) Reference in this connection may also be made to an
interesting article by Paul P.
Craig, Q.C. titled
"Judicial Review, Appeal and Factual Error" published in 2004 Public
In S.N. Chandrashekar
v. State of Karnataka [(2006) 3 SCC 208], this Court observed:
"33. It is now
well known that the concept of error of law includes the giving of reasons that
are bad in law or (where there is a duty to give reason) inconsistent, unintelligible
or substantially inadequate. (See de Smith's Judicial Review of Administrative
Action, 5th Edn., p. 286.)
34. The Authority,
therefore, posed unto itself a wrong question. What, therefore, was necessary
to be considered by BDA was whether the ingredients contained in Section 14-A
of the Act were fulfilled and whether the requirements of the proviso appended
thereto are satisfied. If the same had not been satisfied, the requirements of
the law must be held to have not been satisfied. If there had been no proper
application of mind as regards the requirements of law, the State and the
Planning Authority must be held to have misdirected themselves in law which
would vitiate the impugned judgment.
2 5 [See also Indian
Airlines Ltd. v. Prabha D. Kanan (2006) 11 SCC 67 and Meerut Development
Authority v. Association of Management Studies & Anr. 2009 (6) SCALE 49]
28. The Returning
Officer is a statutory authority. While exercising his power under Section 36
of the Act, he exercises a quasi-judicial power. For the said purpose, the
statute mandates him to take a decision. A duty of substantial significance is
cast on him. As in the present case, by his order the fulcrum of the democratic
process, viz., election can be set at naught.
Improper rejection of
nomination paper, in the instant case, may lead a party not to enter into the
fray of elections. It is also now a trite law that once a finding is arrived at
by the Election Tribunal that the order of rejecting the nomination was
improper which would take within its umbrage not only the decision making
process but also the merit of the decision, no further question is required to
be gone into. The Tribunal had no other option but to set aside the election of
the winning candidate.
In N.T. Veluswami
Thevar v. G. Raja Nainar and Ors. [1959 Supp (1) SCR 623], this Court held:
2 6 "...Under
Section 32 of the Act, any person may be nominated as a candidate for election
if he is duly qualified under the provisions of the Constitution and the Act.
Section 36(2) authorises the Returning Officer to reject any nomination paper
on the ground that he is either not qualified, that is, under Sections 3 to 7
of the Act, or is disqualified under the provisions referred to therein. If
there are no grounds for rejecting a nomination paper under Section 36(2), then
it has to be accepted, and the name of the candidate is to be included in a
list. Vide Section 36(8). Then, we come to Section 100(l)(c) and Section
100(l)(d)(i), which provide a remedy to persons who are aggrieved by an order
improperly rejecting or improperly accepting any nomination. In the context, it
appears to us that the improper rejection or acceptance must have reference to
Section 36(2), and that the rejection of a nomination paper of a candidate who
is qualified to be chosen for election and who does not suffer from any of the
disqualifications mentioned in Section 36(2) would be improper within Section
100(l)(c), and that, likewise, acceptance of a nomination paper of a candidate
who is not qualified or who is disqualified will equally be improper under
In Birad Mal Singhvi
v. Anand Purohit [1988 Supp SCC 604], this Court held:
2 7 "...The
Returning Officer placing reliance on the entries contained in the public
document i.e. the electoral roll, rejected the nomination paper of the two
candidates on the ground that Hukmi Chand and Suraj Prakash Joshi were not
qualified to contest the election. In the absence of any material before the
returning officer, the Returning Officer was not wrong in taking the entries in
the electoral roll into consideration and acting on them. But his decision is
not final. In an election petition it is open to an election petitioner to
place cogent evidence before the High Court to show that the candidate whose
nomination paper was rejected had in fact attained the age of 25 years on the
relevant date. It is open to the High Court to take a final decision in the
matter notwithstanding the order of the Returning Officer rejecting the
nomination paper. If on the basis of the material placed before the High Court
it is proved that the candidate whose nomination paper had been rejected was
qualified to contest the election it is open to the High Court to set aside the
scrutiny is summary in nature as there is no scope for any elaborate enquiry at
that stage. Therefore it is open to a party to place fresh or additional
material before the High Court to show that the returning officer's order
rejecting the nomination paper was improper. It should be borne in mind that
the proceedings in an election petition are not in the nature of appeal against
the order of the returning officer. It is an original proceeding.
In the instant case
it was open to the respondent election petitioner to place material before the
High Court to show that the two candidates were qualified and their nomination
paper was improperly rejected."
[See also Sushil
Kumar v. Rakesh Kumar (2003) 8 SCC 673] 2 8 In Pothula Rama Rao v. Pendyala
Venkata Krishna Rao [(2007) 11 SCC 1], this Court held:
"8. If an
election petitioner wants to put forth a plea that a nomination was improperly
rejected, as a ground for declaring an election to be void, it is necessary to
set out the averments necessary for making out the said ground. The reason
given by the Returning Officer for rejection and the facts necessary to show
that the rejection was improper, should be set out. If the nomination had been
rejected for non-compliance with the first proviso to sub-section (1) of
Section 33, that is, the candidate's nomination not being subscribed by ten
voters as proposers, the election petition should contain averments to the
effect that the nomination was subscribed by ten proposers who were electors of
the constituency and therefore, the nomination was valid. Alternatively, the
election petition should aver that the candidate was set up by a recognised
political party by issue of a valid B- Form and that his nomination was signed
by an elector of the constituency as a proposer, and that the rejection was
improper as there was no need for ten proposers. In the absence of such
averments, it cannot be said that the election petition contains the material
facts to make out a cause of action."
29. While exercising
his quasi-judicial power, in terms of the provisions of the Act, it was
incumbent upon the Returning Officer to follow the instructions contained in
the Handbook. It provides for:
(i) opportunity to be
given to candidate to rebut the objections by placing sufficient materials on
(ii) A presumption of
validity of such nomination paper.
30. Indisputably, the
said instructions are binding being statutory in nature. [See Rakesh Kumar v.
Sunil Kumar (1999) 2 SCC 489]
31. When there exists
a presumption in favour of a party, it is for the other party to adduce
32. At this juncture,
the order passed by the returning officer may be noticed which was in the
"1) The disputed
proposers have physically appeared before me and they have also submitted
affidavits in which they stated that they have not signed any nomination paper
of Shri Jankar U.S.
The signatures as
shown in the said nomination 3 0 paper of Shri Jankar U.S. are forged and not
2) Another contention
of defendant i.e. Shri Jankar U.S. is that specimen signatures of the disputed
proposers shall be called for and examined. The specimen signatures were
accordingly called for from the Municipal Council of Mangalwedha. They were
compared with the signatures in the nomination paper. As there were subtle
differences in these two sets of signatures of each of these disputed
proposers, it was not possible to arrive at a conclusion on this basis. All the
disputed proposers have appeared before me and filed their affidavits. They
were explained and warned about the consequences of filing a wrong affidavit.
As the disputed proposers have physically appeared before me in person and
filed affidavits saying that the signatures in nomination paper are forged,
there is no reason to set aside their affidavits. The proceeding before the
Returning Officer is in the nature of a summary enquiry as per Section 36(2) of
the Representation of People Act, 1951. The defendant Shri Jankar U.S. could
not produce any evidence which would have conclusively proved that the disputed
proposers had originally signed but changed their mind later on. The point made
by the defendant that the disputed proposers had initially proposed the name
but changed their mind later on cannot be considered for want of unambiguous
and conclusive proof.
Based on the above
discussion, I am of the opinion that the onus of proof now lies on the
defendant. But, the defendant could not furnish such an evidence. Therefore, I
have come to the conclusion that the signatures of the disputed 3 1 proposers
in the nomination form of defendant Shri Jankar U.S. are not genuine and
thereby it will have to be rejected u/s 36(2)(c) of the Representation of the
People Act, 1951."
33. Before the
returning officer, two sets of signatures were available. He could not have, on
his own showing, arrived at any conclusion on that basis, particularly when
prima facie he did not find the signatures of the concerned proposers to be
discrepant on the basis of the naked eye comparison of their admitted
signatures and the ones appearing in the registers of the Municipal Council.
While, as indicated hereinbefore, he proceeded on the basis that the said
proposers were appearing before him and filed their affidavits, indisputably
affidavits had not only been filed by five others including the appellant but
also by the brother of the proposer No. 8. The evidence before the returning
officer, therefore, was by way of affidavits affirmed by the parties. Appellant
not only affirmed an affidavit denying and disputing the contents filed by the
said proposers but also brought on record the affidavits filed by other
proposes who testified to the effect that they had signed in their presence.
Even the returning officer, ex facie, did not find any 3 2 difference in their
signatures in the nomination paper and signatures contained in the attendance
sheets of Mangalwedha Municipal Council.
34. On the
aforementioned premise, it was obligatory on the part of the returning officer
to draw a presumption. He proceeded on the basis that it was for the appellant
to produce any evidence which would be conclusive proof that the proposer Nos.
7 and 8 had changed their mind later on. It was, to our mind, an irrelevant
35. The presumption
of correctness of the nomination paper being statutory in nature, as intention
of the Parliament as also the Election Commission was that even if somebody had
filed an improper nomination, but for which he can be given benefit of doubt
being a possible subject matter of an election petition where the question
would be gone into in details, it was for the respondent herein to prove that
the nomination paper prima facie did not contain the signatures of the
proposers and, thus, were liable to be rejected.
36. We must, however,
notice another aspect of the matter: A quasi- judicial authority while deciding
an issue of fact may not insist upon a conclusive proof. While doing so, he has
to form a prima facie view.
however, in terms of sub-section (5) of Section 36 in Handbook for Returning
Officers, if any objection is raised then while holding the summary inquiry in
the matter of taking a decision on the objection as to whether the same is
valid or not, he is not only required to record his brief decision for the same
but further in case of doubt the benefit must go to the candidate and the
nomination paper should be held to be valid although his view may be prima
facie a plausible view or otherwise bona fide.
37. In an election
petition, the High court, therefore, was required to consider whether he had
wrongly shifted the onus in view of S.N. Chandrashekar (supra), which would
come within the purview of an error apparent on the face of the record. It is
of some significance to note that in De Smith's Judicial Review [Harry Woolf,
et. al. (Eds.), De Smith's Judicial Review, 6th Edition, London: Sweet &
Maxwell, 2007, Para 11-056] it is stated as under:
3 4 "Our view
is that mistake of fact in and of itself renders a decision irrational or unreasonable.
In general it is right that courts do leave the assessment of fact to public
authorities which are primarily suited to gathering and assessing the evidence.
Review must not become appeal. On the other hand it should be presumed that
Parliament intended public authorities rationally to relate the evidence and
their reasoning to the decision which they are charged with making. The taking
into account of a mistaken fact can just as easily be absorbed into a
traditional legal ground of review by referring to the taking into account of
an irrelevant consideration; or the failure to provide reasons that are
adequate or intelligible, or the failure to base the decision upon any
In this limited
context material error of fact has always been a recognized ground for judicial
intervention. Since E, however, the circumstances in which a decision of the
primary decision-maker may be impugned on fact has been somewhat curtailed. In
Shaheen v. Secretary of State for the Home Department,  EWCA Civ 1294,
Brooke L.J. for the Court of Appeal, was unwilling to reopen the decision of
the primary decision- maker taken on a mistaken belief that there was no
evidence to refute a material fact. He suggested the following possible summary
of the situation to date :
`(i) Proof or
admission that the tribunal of fact misapprehended a potentially decisive
element of the evidence before it discloses an error of law (as held in the E
case,  Q.B. 1044) (ii) Proof of admission of a subsequently discovered
fact permits an appellate 3 5 court to set aside a decision for fraud,
provided that it was potentially decisive and it can be shown that the
defendant was responsible for its concealment.
(iii) The emergence
of any other class of new fact, whether contested or not, has either to be
processed (within the Immigration Rules in that case) or simply lived with, as
Lord Wilberforce explained in the Ampthill Peerage case  A.C. 547... In
any other case, finality prevails'."
38. Evidence by way
of an affidavit is one of the modes of proving a question of fact both under
the Code of Civil Procedure as also under the Code of Criminal Procedure
besides other special statutes recognizing the same.
39. The Returning
Officer, thus, while exercising his quasi judicial function could have
appreciated the evidence brought on record by the parties by way of affidavits.
A wrong question posed, leads to a wrong answer, which is a misdirection in
law. [See Cholan Roadways Ltd. (supra)]
40. In an election
petition, the High Court acts as a Court of original jurisdiction and the
election petition is a civil trial and the jurisdiction in 3 6 such a trial,
stricto sensu cannot be said to be appellate in nature. Clearly, the High Court
acted illegally in treating its power only as an appellate authority and not as
an original authority for it only proceeded to try and determine as to whether
or not the decision making process is legal. That approach of the High court in
our considered opinion was illegal and unjustified. The High court was duty
bound to treat the matter on merits by framing issues and thereafter calling
for production of evidence in support of their respective cases. The High court
should have examined the veracity of the rival claims based on the evidence
produced by the parties and should have tested the correctness of the
affidavits. The opinion of the hand writing expert in that regard would have
been sufficient and on the basis of the same it could be possible for the High
court to decide the entire lis between the parties. The High Court despite
being the Court of original jurisdiction acted as a court of appellate
jurisdiction and dismissed the petition without allowing the parties to produce
evidence in support of their contention. As the matter has not been adjudicated
on merits, we set aside the judgment and order passed by the High Court and
remit the matter to the High Court to proceed in accordance with law and decide
the dispute raised in the election petition in accordance with law as
expeditiously as possible and at least within a period of six months from
today. Since it is an election petition and is required to be decided within a
period of six months, the High Court should make an endeavour to complete the
trial within a period of six months from today, if necessary by holding a day
to day trial.
41. However, a
statutory right of a party to file an election petition cannot and, in our
opinion, for all intent and purport, should not be denied only on the basis of
a wrong concession made by a counsel. We have noticed hereinbefore the order
dated 25.11.2004 passed in Application No. 1 of 2004 in Election Petition No. 1
of 2004. Therein, a contention was raised that the election petition was not
based on corrupt practices. The concession, if any, was confined only to the
said question, by reason thereof, a right vested in a suitor by reason of a
statute could not have been taken away. [See M.P. Gopalakrishnan Nair and
Another v. State of Kerala and Others (2005) 11 SCC 45, para 53]
42. In view of our
findings aforementioned, we are of the opinion that the impugned judgment
cannot be sustained, which is set aside accordingly and the matter is remitted
to the High Court for consideration of the matter afresh. The appeal is allowed
with the aforementioned directions. However, in the facts and circumstances of
the case, there shall be no order as to costs.
[Dr. Mukundakam Sharma]
Pages: 1 2 3