Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7457 OF 2008
Uttamrao Shivdas Jankar …Appellant
Versus
Ranjitsinh Vijaysinh Mohite-Patil …Respondent
J U D G M E N T
S.B. SINHA, J :
1. The 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
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out of a judgment and order dated 26.08.2008 passed by the Bombay High
Court in Election Petition No. 1 of 2004.
2. Indisputably, 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.
3. Appellant 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.
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4. The 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.
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5. It 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 signatures.
6. The 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”).
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7. Appellant 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.
8. Appellant 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.
9. Inter 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.
10. Respondent 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
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did not contain the material particulars as required under Section 83(1)(b) of
the Act read with Rule 94-A of the Rules.
11. During 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.
12. By 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 Respondent.”
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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 grounds.
It was, however, observed:
“Before parting 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.”
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13. Respondent 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.
Jaymala Purnanand 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.
Respondent, herein, has been materially
affected by non-compliance with the
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provisions of Sub-sections (1) and (2) of
Section 36 of the Representation of the
People Act, 1951?
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?”
14. Appellant 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
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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.
Jaymala Purnanand 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.”
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15. An 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 withdrawal thereof.
16. In 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.
17. Appellant thereafter intended to adduce evidence that the said
proposers were in the camp of the respondent. An objection raised in that
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regard by the respondent, however, was overruled, subject to the
clarifications made by the learned Judge in his order dated 24.06.2008.
18. Appellant 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.
19. Appellant has, thus, filed this appeal under Section 116A of the Act.
20. Mr. K.V. Viswanathan, learned senior counsel appearing on behalf of
the appellant would urge:
(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’.
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(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.
21. Mr. 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.
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(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.
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22. The 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.
The term “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
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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.]
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(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
adjourned.”
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.
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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 it.
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
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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 papers.”
Paragraph 7 makes the scrutiny of the nomination by the returning
officer a quasi-judicial duty. It reads as under:
“7. While 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.”
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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
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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:
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(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.
Indisputably, there exists a distinction between a decision making process
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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-à-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
probability” and applied the standard of proof
required for a criminal trial. A case for judicial
review was, thus, clearly made out.
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 Law,
p.788.”
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.
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[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:
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“…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
Section 100(l)(d)(i).”
In Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604], this
Court held:
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“…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 election.
Enquiry during 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
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.”
2
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 record:
(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 evidence.
32. At this juncture, the order passed by the returning officer may be
noticed which was in the following terms:
“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
paper of Shri Jankar U.S. are forged and not
genuine.
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
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
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 question.
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.
3
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.
Indisputably, 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
th
Review, 6 Edition, London: Sweet & Maxwell, 2007, Para 11-056] it is
stated as under:
3
“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 evidence.
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, [2005] 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 , [2004] Q.B. 1044)
(ii) Proof of admission of a subsequently
discovered fact permits an appellate
3
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 [1977] 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
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
3
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
3
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.
………………………….J.
[S.B. Sinha]
..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
May 15, 2009