http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 25  

PETITIONER: MOHD. YASIN SHAH

       Vs.

RESPONDENT: ALI AKBAR KHAN

DATE OF JUDGMENT14/04/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA BHAGWATI, P.N. GUPTA, A.C.

CITATION:  1976 AIR 1866            1976 SCR    1  1977 SCC  (2)  23  CITATOR INFO :  R          1978 SC 351  (15)  R          1985 SC  89  (13)

ACT:      Jammu &  Kashmir Representation  of the  People Act, S. 47(2) (c)-Scope of

HEADNOTE:      Section 47(2)  of the Jammu & Kashmir Representation of the People  Act enacts  that  the  Returning  Officer  shall examine  the   nomination  papers   and  shall   decide  all objections which  may be  made to  any nomination  and  may, either on  such objection  or in  his own motion, after such summary enquiry,  if  any,  reject  any  nomination  on  the ground, among others, that the signature of the candidate or the proposer on the nomination paper is not genuine.      For the  general election  to the  State  Assembly  the appellant and  the respondent  (petitioner) filed nomination papers. The  nomination paper of the respondent was rejected by the  Returning  Officer  on  the  ground  that  when  his nomination was  called neither  he nor  anyone on his behalf was present.  After the  words ’Hence  rejected’ recorded on the nomination  paper the  Returning Officer  had also added that the  signature of  the proposer was not genuine. In the election that ensued the appellant was declared elected. The respondent in  his election petition alleged (i) that though at the  time of  scrutiny the Returning Officer was informed by his proposer that the respondent had gone out to ease and requested him  to wait  for a  while, the  Returning Officer rejected the  nomination paper  and refused  to  reopen  the matter  even   on  the   respondent’s  request   immediately thereafter and  (ii) that  the Returning  Officer  committed forgery by subsequently adding certain words in the order of rejection and  by over-writing the signature of the proposer on the nomination paper.      The High  Court held (i) that the Returning Officer was not justified  in law  in rejecting  the nomination paper of the respondent  on the ground that he was not present at the time of scrutiny, and (ii) that the Returning Officer having become functus  officio any subsequent observations which he might have  made was  irrelevant and  since  the  nomination

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 25  

paper was  illegally rejected  the election was void and was liable to be set aside under s. 108(1)(c) of the Act.      Allowing the appeal to this Court, ^      HELD: The  judgment of the High Court is erroneous both on fact  and in law and is against the weight of evidence on record and preponderance of probabilities. [27 D]      (1) Although  the appellate  Court should  be  slow  to disturb a  pure finding  of fact  based on  appreciation  of evidence by  the Trial  Court, it  is well  settled that the sanctity  and   purity  of   electoral  processes   must  be maintained. The  election of a duly elected candidate cannot be set  at naught  on the  basis of  interested on  partisan evidence not backed by cogent circumstances or unimpeachable documents. [6 H]      Rahim Khan  v. Khurshid  Ahmed &  Ors. [1975]  1 S.C.R. 643, 656  and D. Venkata Reddy v. R. Sultan & Ors. [1976], 3 S.C.R. 445, referred to.      In the  instant case the approach of the High Court was not correct.  It had  overlooked  many  essential  features. Secondly the  High Court  had observed  that issue No. 1 was wide enough to include the appellant’s plea that even if the order of  the Returning  Officer in rejecting the nomination paper on  the ground  of absence  of the  candidate  or  his proposer was wrong, it could 2 still be  supported on  the ground that the signature of the proposer was  not genuine.  Yet it  had not  determined this aspect of the matter. [27 C]      (2) The  order of the Returning Officer read as a whole clearly shows  that the  nomination paper  was rejected  not only on  the ground  that the  candidate or his proposer was not present but also on the ground that the signature of the proposer on the nomination paper was not genuine. It is true that the  Returning Officer  had not given any clear finding on this  point but  s. 47  of the Act did not require a well reasoned decision.  All that  was  necessary  was  that  the Returning Officer  should apply  his mind  and determine the question in  a summary  manner. Even  if the ground on which the nomination  paper had  been actually  rejected was not a permissible ground,  if the  successful candidate could make out a  case  that  the  nomination  paper  could  have  been properly rejected  on one  of the grounds mentioned in s. 47 the rejection  would not  be improper and the election would be upheld. [22 D-H]      N. T.  Veluswami Thevar v. G. Raja Nainar & Ors. [1959] Supp. 1 S.C.R. 623 followed.      (i) In the instant case the fact that P.W. 4 had stated in his  evidence that  when the Returning Officer called the name of the petitioner no one on his behalf responded knocks the bottom  out of  the respondent’s story that the proposer had been instructed to request the Returning Officer to wait or that  the  Returning  Officer  had  not  acceded  to  his request. [8 D]      (ii) On  a perusal  of the Returning Officer’s original order it was clear that the entire order had been written in the same  ink, with  the same  pen and  appears to have been written in  one sitting.  There is  nothing to show that the second part  of the order was added subsequently because the strokes of  the letters,  the ink used and the general tenor of the writing are the same throughout. [20 B]      (iii)  As   regards  that   portion  of  the  Returning Officer’s  order   written  by   him  after  writing  "Hence rejected" his  explanation was that while he was writing his order and had not completed the same, objection was taken by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 25  

the appellant  regarding the  genuineness of  the proposer’s signature and  since the  clerk had by then put the seal, he had recorded  the appellant’s  objection in  this space left and completed  his order and signed above the seal. This was corroborated by independent witnesses and there is no reason why the  Returning Officer  should have  added a part of the order subsequently. [20E, 21 A]      (iv)  The   Returning  Officer,  while  indicating  the appellant’s  objection  regarding  the  genuineness  of  the signature of  the proposer  also observed  that it  was  not possible to  verify the  signature of  the proposer  in  the absence of  the candidate  as well as the proposer. Thus the absence of the candidate and the proposer had been used, not for the  purpose of  rejecting the nomination paper, but for the purpose  of supporting  the conclusion  of the Returning Officer that the signature was not genuine. [22 F]      (v)  It   has  been   satisfactorily  proved  that  the signature of  the proposer  which contained  overwriting was not his  genuine signature  and, therefore,  the  nomination paper had  been properly rejected and the election could not be assailed  under s.  108(1)(c) of  the Act. From the facts found it  was clear  that the  over-writing present  in  the signature at  the time  of scrutiny threw considerable doubt on the  genuineness of  the proposer’s  signature. The  fact that the proposer and the respondent were absent at the time of scrutiny  lends sufficient  support to the inference that the signature of the proposer was not genuine. [26 C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1141 of 1974.      Appeal from the Judgment and Order dated 10th June 1974 of the  Jammu &  Kashmir High  Court at Srinagar in Election Petition No. 4 of 1972. 3      A. K.  Sen,  Altaf  Ahmed  and  M.  Veerappa,  for  the appellant.      G. S.  Pathak, O.  C. Mathur,  Shri Narain  and  J.  B. Dadachanji, for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This is  an election  appeal against the judgment of the High Court of Jammu & Kashmir dated June 10, 1974, by  which  the  learned  Judge  allowed  the  election petition filed  before him  by the respondent Ali Akbar Khan and set  aside the  election of the returned candidate Mohd. Yasin Shah  who is  the appellant  before us.  The  returned candidate will,  for short,  be referred  to by  us as  ’the appellant’  and  the  respondent  Ali  Akbar  Khan  will  be referred to  as ’the petitioner’. It appears that during the elections held  in the  year 1972  in the  State of  Jammu & Kashmir both  the appellant  and  the  petitioner  were  the candidates for  election to the Karnah Assembly Constituency of the  District of  Baramulla  in  the  State  of  Jammu  & Kashmir. There  were other  candidates also some of whom had withdrawn. One  Mohd Yunis  was the  Congress candidate  for this constituency  but  he  was  defeated.  The  petitioner, according to the appellant was merely a covering or a shadow candidate  for   the  Congress  candidate  Mohd  Yunis.  The petitioner filed  his nomination  paper on  February 7, 1972 and his  proposer was  P.W. 1 Ghulam Mohiuddin. According to the petitioner  the nomination  paper was  presented to  the Returning Officer  R.W. 3  Abdul Rehman  Mir on  February 7, 1972 by the petitioner who was accompanied with his proposer

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 25  

Ghulam  Mohiuddin  who  had  signed  as  the  proposer.  The Returning Officer  received the nomination paper and granted a receipt  for the  same. A  sum  of  Rs.  250/-  being  the election deposit  was also  deposited and  other formalities were duly  observed. February  9, 1972,  was the  last  date fixed for  the scrutiny  of the nomination papers of all the candidates. According  to  the  petitioner  he  reached  the office of the Returning Officer at about 10 A.M. on February 9, 1972,  but as  he was suffering from dysentery he went to attend the call of nature and instructed his proposer P.W. 1 Ghulam Mohiuddin  to take  time on his behalf if the name of the candidate  was called  out. The petitioner’s case before the  High   Court  was  that  the  Returning  Officer  after scrutinising the  nomination papers accepted all of them but rejected the  nomination paper  of  the  petitioner  on  the ground of  his absence  in spite  of the  fact that  P.W.  1 Ghulam Mohiuddin  requested him  to wait  for the petitioner who had  gone to  attend the  call of nature. It was further alleged that  when the  petitioner returned he beseeched the Returning Officer not to reject his nomination paper but the Returning Officer  refused  to  reopen  the  matter  as  the nomination paper  of Mohd.  Yunis the Congress candidate had been accepted.  The nomination  paper of Mohd Yasin Shah the appellant was also accepted. Thereafter the poll was held on March 8,  1972 and  the results  were declared  on March 12, 1972. The  appellant Mohd  Yasin Shah  was declared elected, while Mohd  Yunis  was  defeated.  After  the  results  were declared the  petitioner applied for a certified copy of the order of rejection of his nomination paper on April 1, 1972, and according  to him  the Returning  Officer tried to avoid giving the copy of the said order which was ultimately given 4 to him on April 3, 1972, April 2, being a Sunday. The sheet- anchor of  the case of the petitioner was that the Returning Officer was  particularly biased against him and he rejected the nomination  paper  in  order  to  support  the  returned candidate in  whom he was interested. The petitioner further pleaded that  the only  ground on which the nomination paper was rejected was that the petitioner did not appear when the Returning Officer  called out  his name  at the  time of the scrutiny of  his nomination  paper. The  petitioner  further averred that  under the  law the Returning Officer could not have rejected  his nomination  paper on  the ground  of  his absence  even   if  it   was  so.  Not  content  with  these allegations the  petitioner went  to the  extent of making a serious and  irresponsible allegation  against the Returning Officer by averring that the Returning Officer had committed forgery by subsequently adding certain words in the order of rejection and  overwriting the  signature  of  the  proposer Ghulam Mohiuddin  on the  nomination paper.  Thus, in short, according to  the petitioner  as his  nomination  paper  was improperly rejected  by the  Returning Officer, the election of the appellant was void on that ground alone.      The petitioner filed the present election petition with the allegations  aforesaid on April 12, 1972. It was alleged that at  the time  when P.W. 1 Ghulam Mohiuddin was examined as a  witness there was some overwriting on the signature of Ghulam Mohiuddin  the proposer  of  the  petitioner  on  the nomination  form.   Accordingly  the   petitioner  made   an application to  the Court  for permission to file an amended petition by  incorporating the fact that the overwriting was brought into  existence after the scrutiny of the nomination papers was  over and  behind the back of the petitioner. The learned Judge, after hearing the parties, ultimately allowed the application  and accordingly  an  amended  petition  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 25  

filed by  the petitioner  where  the  allegations  regarding interpolation etc.  were made.  The appellant was also given an opportunity to file his additional written statement.      The petition  was stoutly resisted by the appellant who denied,  inter   alia,  all  the  allegations  made  by  the petitioner  and  contended  that  there  was  absolutely  no overwriting on the signature of Ghulam Mohiuddin nor was any forgery committed  by the  Returning Officer. It was further averred that  as neither the petitioner nor his proposer was present when  the scrutiny  of the  nomination paper  of the petitioner was  taken up by the Returning Officer and as the appellant himself raised the objection that the signature of Ghulam Mohiuddin on the nomination paper was not genuine the Returning  Officer   having  applied  his  mind  upheld  the objection and  rejected the  nomination paper  on the ground that the signature of Ghulam Mohiuddin was not genuine as it could not  be verified. The appellant also vehemently denied the allegation  that the  Returning Officer  was in  any way biased or  prejudiced against  the petitioner.  On the other hand it  was  averred  that  the  Returing  Officer  was  an independent officer and since the petitioner was a candidate of the  Congress if  the Returning  Officer could  have  any leaning at  all it  would be  towards the  petitioner rather than the appellant who was an independent candidate opposing the Congress  party. The  learned Judge,  after  taking  the evidence of the 5 parties, came  to the  conclusion that from the order of the Returning Officer  it would appear that the nomination paper of the  petitioner was  rejected mainly on the ground of his absence  which   was  not  a  lawful  ground  on  which  the nomination paper  could have been rejected under s. 47(2) of the Jammu & Kashmir Representation of the People Act. On the question of  the overwriting  the learned  Judge  held  that there was  no  doubt  that  there  was  overwriting  on  the signature of  P.W. 1 Ghulam Mohiuddin on the nomination form of the  petitioner and perhaps the overwriting was made some time after  the scrutiny.  But the  learned Judge  refrained from giving any finding as to who made the interpolation and in what  circumstances. As  regards the  allegation that the Returning Officer  had committed  forgery the  learned Judge does not appear to have accepted the same or given any clear finding on  this point, and he steered clear of this fact by observing that  as the  first  part  of  the  order  of  the Returning Officer  rejecting the  nomination paper was based on  the  ground  of  the  absence  of  the  petitioner,  the Returning Officer  became functus  offcio and any subsequent observation which  he may  have  made  was  irrelevant.  The learned Judge further seems to have held that the petitioner was not  present when  the scrutiny  of his nomination paper was taken  up and the Returning Officer was not justified in law in  rejecting his nomination paper on that ground alone. On these  findings  the  learned  Judge  held  that  as  the nomination paper  of the  petitioner was  illegally rejected the election  of the appellant was void and was liable to be set aside  under s.  108(1)(c)  of  the  Jammu  and  Kashmir Representation of  the People Act-hereinafter referred to as ‘the Act’, as amended upto date.      In support  of  the  appeal  Mr.  Altaf  Ahmed  learned counsel for  the appellant who was followed by Mr. Asoke Sen submitted that  the learned Judge has misconstrued the order passed by  the Returning  Officer rejecting  the  nomination paper of  the petitioner  and that  the judgment of the High Court is  against the  weight of the evidence on the record. It  was  also  argued  that  the  learned  Judge  completely

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 25  

overlooked some  of the  essential features appearing in the case which  completely demolished the petitioner’s case. Mr. G.  S.   Pathak  appearing   for  the  petitioner,  however, supported the  judgment of the High Court and contended that the order  of the Returning Officer was mainly passed on the ground of  the absence  of  the  petitioner  which  was  not justified by  the provisions  of s.  47(2)(c) of the Act. He also submitted  that a  bare perusal  of the  order  of  the Returning Officer would clearly show that the second part of the order  regarding the genuineness of the signature of the proposer Ghulam  Mohiuddin appears  to  have  been  inserted subsequently. Lastly,  it was  submitted that  although this Court could reappraise the evidence for itself it should not interfere with  the judgment  of the  High  Court  on  facts unless  the  High  Court  had  committed  an  error  in  its appreciation of evidence or overlooked any material fact. It was further  argued that  this Court should keep in mind the slowness of the appellate court to disturb a pure finding of fact based  on appreciation  of evidence  by the Trial Court which had the initial advantage of watching the demeanour of the witnesses  examined by  it. There can be no dispute with the propositions adumbrated by Mr. Pathak, but we would like 6 to mention  that it  is well  settled that  the sanctity and purity  of   electoral  process   in  the  country  must  be maintained. The election of a duly returned candidate cannot be set  at naught  on the  basis of  interested or  partisan evidence which  is not  backed by  cogent  circumstances  or unimpeachable documents.  In Rahim  Khan v. Khurshid Ahmed & Ors.(1) this Court observed as follows :           "We must  emphasize the danger of believing at its      face value  oral evidence  in an  election case without      the  backing   of  sure  circumstances  or  indubitable      documents.  x  x  x  There  is  no  x-ray  whereby  the      dishonesty of  the story can be established and, if the      Court were  guillible enough to gulp such oral versions      and invalidate elections, a new menace to our electoral      system would  have been  invented through  the judicial      apparatus. We  regard it  as extremely  unsafe, in  the      present climate  of kilkennycat  election  competitions      and partisan  witnesses wearing  robes of  veracity, to      upturn a  hard won electoral victory merely because lip      service to a corrupt practice has been rendered by some      sanctimonious witness.  The Court must look for serious      assurance,  unlying   circumstances  or   unimpeachable      documents to uphold grave charges of  corrupt practices      which might  not merely cancel the election result, but      extinguish many a man’s public life."      In D.  Venkata Reddy v. R. Sultan & Ors.(2) this Court, in which  one of  us (Fazal  Ali,  J.)  was  also  a  party, reiterated the principles in the following words :           "In a  democracy such  as  ours,  the  purity  and      sanctity of elections, the sacrosanct and sacred nature      of  the   electoral  process   must  be  preserved  and      maintained. The  valuable verdict  of the people at the      polls must  be given due respect and candour and should      not  be   disregarded  or   set  at  naught  on  vague,      indefinite, frivolous  or fanciful  allegations  or  on      evidence  which   is  of   a  shaky   or  prevaricating      character. It  is  well  settled  that  the  onus  lies      heavily on the election petitioner to make out a strong      case for  setting aside  an election.  In  our  country      election is  a fairly  costly and expensive venture and      the Representation  of  the  People  Act  has  provided      sufficient safeguards  to make  the elections  fair and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 25  

    free.  In   these  circumstances,  therefore,  election      results cannot  be lightly  brushed aside  in  election      disputes."      We would  now proceed to discuss the various aspects of the case  in the  light of the principles enunicated by this Court in  the aforesaid  cases.  To  begin  with,  we  might mention that  most of the facts on which evidence appears to have been  led by  the petitioner  were not  pleaded in  the election petition  at all.  For instance,  the definite case made out  by the  petitioner in his evidence was that at the time of  the scrutiny of the nomination papers when the name of the petitioner was called out P.W. 1 Ghulam Mohiuddin the proposer of the 7 petitioner  was  present  who  drew  the  attention  of  the Returning officer  to the  fact that the petitioner had gone to attend the call of nature and that he should wait for him but the  Returning Officer  refused to wait and rejected the nomination paper  on  the  ground  of  the  absence  of  the petitioner. It  was further  sought  to  be  proved  in  the evidence that on return the petitioner tried to persuade the Returning Officer  to reopen the matter and in fact filed an application before  him for recalling the order of rejection of the  nomination paper  but the  Returning Officer  was so much prejudiced  against him  that he  tore of  the petition submitted before  him by  the petitioner. It will be noticed that neither in the original petition nor in the amended one there is  any  mention  of  the  fact  that  P.W.  1  Ghulam Mohiuddin drew  attention of the Returning Officer and asked him to  wait, nor  is there any mention of the fact that the petitioner  on  his  return  submitted  a  petition  to  the Returning  Officer   which  was  torn  into  pieces  by  the Returning Officer.  We shall  show that these facts are also not proved  even by  some of  the witnesses  examined by the petitioner. It  may be  pertinent to note here that while in paragraph 14  it was mentioned that when the nomination form of the  petitioner was  taken up  it  was  reported  to  the Returning Officer that the petitioner had gone to attend the call of  nature but significantly enough it is not mentioned therein as to who was the person who had drawn the attention of the  Returning Officer.  It seems  to us that even at the time of  filing his  amended petition  which was filed after the trial  had started the petitioner was not certain of his ease and  had not  yet decided  to allot  this part  to  his proposer Ghulam  Mohiuddin. P.Ws.  1, 2  and 6 have no doubt asserted in  their evidence  that P.W.  1  Ghulam  Mohiuddin requested the  Returning Officer  to wait for the petitioner who had  gone to  attend the  call of  nature. P.W. 1 Ghulam Mohiuddin  who  was  the  proposer  of  the  petitioner  and therefore the  most interested  witness in  this case has no doubt testified  to the fact that he had drawn the attention of the  Returning Officer  when the  nomination paper of the petitioner was  taken up  for  scrutiny  but  the  Returning Officer did not heed his request and rejected the nomination paper. This witness also stated that petitioner himself told the Returning  Officer that  he was going to attend the call of nature  and that  he should wait for him. But the witness does  not   appear  to  be  sure  of  his  statement  as  he immediately volunteered  to state  that as  there was lot of noise at  that time  evidently the Returning Officer did not hear him. The petitioner also says the same thing.      P.W. 2 Qazi Mohammad Abdullah also tries to support the fact that  at the  time of  scrutiny the  petitioner was not present and  Ghulam Mohiuddin  P.W. 1 informed the Returning Officer that  the petitioner  had gone to attend the call of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 25  

nature.  This   witness,  however,   did  not   support  the allegation of  the petitioner  that a petition was submitted by him  before the  Returning Officer which was torn by him. The witness stated thus:           "The petitioner did not submit any petition before      the Returning  Officer in  my presence  on the  day  of      scrutiny. There  was no  such incident  in my  presence      such as  the filing  of a petition before the Returning      Officer and the tearing off that petition by him." 8      P.W. 6  the petitioner  himself no  doubt supported his case that  he had gone to attend the call of nature when the scrutiny of  his nomination  paper  was  taken  up  and  had instructed P.W.  1 Ghulam Mohiuddin to remain present and to ask the  Returning Officer  to wait.  Thus this  fact is not proved by any independent witness.      On the  other hand  the fact  that Ghulam Mohiuddin did not respond  to the  call even  though he was instructed, as the petitioner  would have us believe, is admitted even by a witness of  the petitioner, namely, P.W. 4 Ghulam Qadir Mir, who deposed as follows:           "At the  time when  the scrutiny of the nomination      paper of  Ali Akbar  Khan was  taken up, he himself was      not present  there. His proposer Ghulam Mohi-ul-Din was      present there.  The name  of Ali  Akbar Khan was called      out but  no one  responded and so the Returning Officer      wrote down  that  the  candidate  was  absent  and  his      nomination paper  was being  rejected. In  my  presence      nothing else happened there." It would  therefore appear from the evidence of this witness that even  though Ghulam Mohiuddin was present he did not at all respond  when the name of the petitioner was called out. This knocks  the bottom  out of the story put forward by the petitioner that  Ghulam Mohiuddin had been instructed to ask the Returning Officer to wait or that Ghulam Mohiuddin stood up and  requested the  Returning Officer  to  wait  for  the petitioner. Thus  the entire  story given  out by P.Ws. 1, 2 and 6  on this  point is  falsified by  one of the witnesses examined by the petitioner himself.      There  is   yet  another   circumstance  which   throws considerable  doubt  on  this  part  of  the  story  of  the petitioner. P.W.  5 Girdhari  Lal  counsel  engaged  by  the petitioner at  the  time  of  scrutiny  according  to  whose evidence Ghulam  Mohiuddin had signed the nomination form in his presence, was also present at the time when the scrutiny of the  nomination paper  of the petitioner was taken up and in spite  of this  fact when  the name of the petitioner was called out  and  according  to  the  witness  the  Returning Officer announced  that since  he was  absent his nomination paper was  rejected this  witness did not enter a protest on behalf of  his client,  the petitioner,  that the  Returning Officer could  not have rejected the nomination paper on the ground of  the absence  of  the  petitioner.  This  somewhat unusual conduct  on the  part of the witness who is a lawyer of  some   experience  clearly  shows  that  neither  Ghulam Mohiuddin was  present nor the petitioner was present and it is therefore  extremely doubtful  if this  witness was  also present at  the time  when the  scrutiny of  the  nomination paper of  the petitioner  was  taken  up  by  the  Returning Officer.      As against  this contradictory  and discrepant evidence there is  consistent evidence  of the  appellant’s witnesses R.Ws. 1,  2,  3  and  4  to  the  effect  that  neither  the petitioner nor  his proposer  Ghulam Mohiuddin  was  present when the  scrutiny of the nomination paper of the petitioner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 25  

was taken up. R.W. 3 is the Returning Officer himself and he appears to  us to be an absolutely independent witness being a high Government officer of sufficient experience and there is abso- 9 lutely no  reason for  him to  depose  falsely  against  the petitioner. The Returning officer stated thus:           "When in  spite  of  repeated  calls  neither  the      petitioner nor his proposer turned up before me, then I      began to  write out  the  order  on  the  back  of  the      nomination form."      R.W. 1  Mohammad Anwar  Shah Masoodi also appears to be an independent witness who was an active Congress worker but he did  not  see  eye  to  eye  with  the  Congress  on  the candidature of  Mohd Yunis for the constituency in question. There is  nothing to  show that  this witness was in any way interested in the appellant. This witness also categorically stated that  neither the  petitioner nor the proposer of the petitioner turned  up at  the time  when  the  name  of  the petitioner was called out.      R.W. 2  Ghulam Hassan  Malik who  was also  one of  the candidates from  the Karnah Assembly Constituency and who is a lawyer  also corroborated  the evidence  of the  Returning Officer and of R.Ws. 1 & 3 that no one stood up on behalf of the petitioner  when the  name of  the petitioner was called out and  that the  proposer of  the petitioner  was also not present at  that time  in the room. This witness has further stated that no one brought it to the notice of the Returning Officer that  the petitioner  was ill  or that  he would  be coming soon.  The evidence  of the witnesses examined by the appellant, therefore,  is fully corroborated by the evidence of P.W.  4 Gulam  Qadir Mir  a witness  of the petitioner as shown above.      Furthermore we  find it  difficult to  believe why  the Returning Officer  who  was  an  independent  person  and  a Government Officer  would refuse  to wait for the petitioner if his  attention was  really drawn  to the  fact  that  the petitioner was ill and had gone to attend the call of nature by Ghulam Mohiuddin or any body on behalf of the petitioner. This fact,  therefore, clearly  shows that  the case  of the appellant that  neither the  petitioner nor his proposer was present at  the time  when the  scrutiny of  the  nomination paper of  the petitioner  was taken  up is  true.  Even  the learned Judge  is also  inclined to  accept this part of the case of the appellant. On a consideration of the evidence of the parties  referred to above we are clearly of the opinion that the  petitioner has  failed to  prove that  at the time when the  scrutiny of  his nomination  paper was taken up by the Returning  Officer either the petitioner or his proposer Ghulam Mohiuddin  was present  and made  any request  to the Returning Officer  to wait  which was  not acceded to by the Returning Officer.      Apart from  the interested testimony of P.W. 1, 3 and 6 that  the   petitioner  had  submitted  a  petition  to  the Returning Officer  which was  torn out  by him  there is  no reliable evidence  to prove  this fact.  To begin with, this fact is  not at  all mentioned even in the election petition filed by the petitioner even after amendment. The petitioner admits in  his statement  that he  did not mention this fact while instructing  his lawyer.  Furthermore, if  indeed  the Returning Officer  actually behaved  in the  manner  as  the petitioner would have us believe, then it was a very serious matter and the petitioner is not likely to have 10 slept over  the  matter  but  would  have  filed  a  regular

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 25  

complaint  against  the  Returning  Officer  to  his  higher superiors. In fact when there was a delay of only one day in the giving of the copy of the rejection order the petitioner made a  great fuss  and furore  over this petty lapse. Is it possible to  believe that  the petitioner would sit quiet if the Returning  Officer had behaved in such a manner with him by tearing  off the  petition which  was  submitted  to  the Returning Officer  ? Apart from that P.W. 3 Mohammad Maqbool Mir at  p. 87 of the Paper Book has clearly admitted that in his presence  no petition was filed by Ali Akbar Khan before the Returning Officer. Even P.W. 5 who was the lawyer of the petitioner stated  that he  cannot say  that Ali  Akbar Khan presented any  petition before  the Returning  Officer which the latter  tore off.  P.W. 4  also says that he did not see the petitioner Ali Akbar Khan or his proposer presenting any application to  the Returning  Officer which the latter tore off. Thus  the mischievous allegation made by the petitioner against the  Returning Officer  is completely  disproved not only from  his own  conduct but  also by the evidence of his own witnesses as discussed above.      Finally even  though a very serious allegation was made against the  Returning Officer  personally, yet, when he was deposing as  a witness  for the appellant, no suggestion was put to  him that  any petition was presented to him which he tore off instead of taking any action thereon. Further while P.W. 1 Ghulam Mohiuddin categorically stated in his evidence that the  petition which  was  submitted  to  the  Returning Officer was  scribed by  Abdul Ahad the petition writer, yet the petitioner  made no  attempt to  examine Abdul  Ahad  in order  to   prove  this   part  of   his  case.   In   these circumstances, therefore,  we disbelieve  this part  of  the case of the petitioner that he had filed any petition to the Returning Officer  for reopening  the  order  rejecting  his nomination paper.  It seems to us that this allegation was a made up  story and appears to have been invented in order to make out  a case  that  the  Returning  Officer  was  biased against the  petitioner and that is why the nomination paper of  the  petitioner  was  illegally  rejected  by  him.  The petitioner has  however miserably  failed to prove this part of the  case. If  this story  is found to be false, it would also demonstrate  the falsity of the main allegation made by the petitioner regarding the overwriting on the signature of Ghulam Mohiuddin  as also  interpolation in the order passed by the  Returning Officer  rejecting the nomination paper of the petitioner.      This brings  us now to the question as to the nature of the order  passed by  the Returning Officer which is Ext. RW 3/3. Before,  however, taking  up  this  matter  it  may  be necessary to dispose of the case of the petitioner regarding the overwriting  alleged to  have been  made subsequently on the signature  of Ghulam  Mohiuddin on  the nomination paper Ext. PW 5/2. The definite case of the petitioner was that at the time  when the  nomination paper  was filed  before  the Returning Officer  R.W. 3,  or  even  at  the  time  of  the scrutiny on  February 9,  1972, there  was no overwriting at all which  appears to  have been  made subsequently.  On the other hand the case of the appellant is that the overwriting was  already   there  from   before  and   in  fact  it  was deliberately made so as to afford a ground to the peti- 11 tioner to set aside the election of the appellant in case he was duly  elected. It  was suggested  that this  lacuna  was deliberately left  so as  to invite the Returning Officer to reject the  nomination paper  and then use this infirmity to upset the election of the appellant. In support of this case

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 25  

the appellant relied upon the following circumstances:      (i) that  the petitioner  was a mere covering or shadow candidate of  the Congress  and was not at all interested in contesting the election;      (ii) that  once the  nomination paper of Mohd Yunis who was the  official candidate of the Congress was accepted the petitioner  was  not  at  all  interested  in  pursuing  his election and  it was  for this reason that when the scrutiny of the  nomination paper  of the  petitioner  was  taken  up neither the  petitioner nor  his proposer was present and an imaginary story was invented that the petitioner was ill and had gone  to attend  the call of nature and Ghulam Mohiuddin the proposer  asked the  Returning Officer  to wait  but  he rejected the nomination paper of the petitioner; and      (iii) that  P.W. 1 Ghulam Mohiuddin the proposer of the petitioner has  in  an  unguarded  moment  admitted  in  his statement that on the very day when the nomination paper was rejected i.e.  on February  9, 1972, the petitioner informed the witness  that he  will file  a case in the Court against Mohd Yasin the appellant. P.W. 1 deposed thus:           "The petitioner  had only  then informed  me after      the rejection  i.e. on 9-2-1972 that he will now file a      case in the Court against Mohammad Yasin respondent." This statement clearly lets the cat out of the bag and shows that the  petitioner’s intention  really was  to  prepare  a ground for setting aside the election of the appellant if he was  duly   elected.  Unless   this  was   so,  it   is  not understandable why  the petitioner  should have  made such a statement to  P.W. 1  on the  date when the nomination paper was rejected  and when  he obviously did not know whether or not the appellant would succeed in the election.      We shall  now deal  with each  of  these  circumstances relied upon by the appellant in support of his case that the entire story  of overwriting  etc.  was  a  figment  of  the imagination of  the petitioner’s  mind and perhaps the whole thing was  stage-managed  so  as  to  invite  the  Returning Officer to reject the nomination paper of the petitioner.      The appellant  has clearly  stated in his evidence that the petitioner  was  merely  a  covering  candidate  of  the Congress and  was put  up only as a shield to take the place of Mohd  Yunis if  the nomination  paper of  Mohd Yunis  was rejected. R.W. 1 who, as we have already pointed out, was an independent witness and was an active worker of the Congress at  one  time  has  also  categorically  asserted  that  the petitioner was  a covering  candidate of  the Congress.  The witness stated thus:           "The petitioner  was a  candidate set  up  by  the      Congress that  is to  say he  was a covering candidate.      The congress  had given  the mandate  to Kh. Mohd Yunis      but the latter 12      had set  up the  petitioner as  a candidate  by way  of      precaution." The evidence of this witness appears to have a ring of truth in it.  He has clearly stated that he did not agree with the Congress Organization when a mandate was given to Mohd Yunis to stand  from the  Assembly constituency of Karnan, because in his  opinion Mohd Yunis had lost his popularity and there was little  chance of  his being  elected. The result of the election demonstrated  that the apprehension of this witness was undoubtedly  correct, because  while the  appellant  was duly  returned,   Mohd  Yunis   was   defeated.   In   these circumstances we  do not  see any  reason  to  distrust  the evidence of this witness on this point.      R.W. 2  Gulam Hassan  Malik who was a lawyer and also a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 25  

candidate has also stated that the petitioner Ali Akbar Khan was a covering candidate of Mohd Yunis.      The  appellant   also  in  his  evidence  categorically asserted that the petitioner was a covering candidate of the Congress for Mohd. Yunis. It is true that the petitioner has not admitted this fact, but the somewhat contradictory stand taken by  him on  this  point  clearly  shows  that  he  was undoubtedly a  covering candidate.  The witness (petitioner) said that if his nomination paper had been accepted he would not have  contested as  an independent  candidate but he had been assured  that if the nomination paper of Mohd. Yunis as also of  the petitioner  were accepted then the Congress was to decide  as to who would contest the election. At the same time  the  petitioner  admitted  that  the  mandate  of  the Congress was  given to  Mohd Yunis prior to the filing up of the nomination forms. Indeed if the mandate was given by the Congress party  to Mohd.  Yunis alone,  the  petitioner  was bound to  be  a  dummy  candidate  only.  Another  intrinsic circumstance that  supports this  fact is  that  while  Mohd Yunis and  other candidates  filed a  number  of  nomination papers so  that if one of them was rejected on the ground of any defect  or infirmity  the remaining nomination forms may be accepted  and the candidature of the candidates would not run into  difficulty, the  petitioner admittedly  filed only one nomination  paper and did not think it necessary to file another nomination  paper. These  facts taken  together with the subsequent  conduct of  the petitioner  and his proposer Ghulam Mohiuddin  in not  being present  at the  time of the scrutiny of  the nomination  paper  as  found  by  us  lends sufficient support  to the  case of  the appellant  that the petitioner was merely a dummy candidate.      As regards  the  other  circumstances  that  after  the nomination paper of Mohd. Yunis was accepted, the petitioner was not at all interested in fighting the elections, we find that  there   is  overwhelming   evidence  to  support  this inference.  We  have  already  pointed  out  that  from  the evidence led  by the  parties it  has been  established that neither the  petitioner nor his proposer were present at the time when  the scrutiny  of nomination paper was taken up by the  Returning   Officer  on  February  9,  1972.  In  these circumstances, therefore.  it follows as a logical corollary that the  story of the petitioner that a request made to the Returning Officer  by  Ghulam  Mohiuddin  to  wait  for  the petitioner or 13 that any  petition was  filed before  the Returning  Officer which was  torn by  him is  a complete  myth  and  has  been invented to  give credence to the made up story bolstered up by the  petitioner.  Another  intrinsic  circumstance  which shows that  the petitioner  was not  at  all  interested  in pursuing his  election is  the fact  that the  two important persons who  were very  much interested  in  his  nomination paper not  being rejected  did not  lodge any protest before the Returning  Officer or  took the  trouble of  drawing the attention of the Returning Officer that the nomination paper could not  be rejected due to the absence of the petitioner. One of  these persons  was no  one else but Girdhari Lal the counsel of the petitioner himself. According to his evidence he knew  full well  that P.W.  1 Ghulam Mohiuddin had signed the nomination  paper in  his  presence  and  yet  when  the nomination paper  was taken  up for scrutiny he did not care to tell  the Returning  Officer that  as  the  proposer  had signed in  his presence  there was  no question of rejecting his nomination  paper. Similarly  Mohd. Yunis  who  was  the official candidate  of the Congress also remained completely

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 25  

silent and  did not  draw the  attention  of  the  Returning Officer when  the nomination paper of the petitioner who was also a  Congress candidate  was rejected.  All these  facts, therefore, lead  to  the  inescapable  conclusion  that  the petitioner was  not at  all  interested  in  contesting  the election  and   by  his  deliberate  conduct  he  created  a situation in which the nomination paper could be rejected so that if  necessary he  could use  this lacuna  to upset  the election of the appellant.      As regards  the last  circumstance,  namely,  that  the whole thing  appears to  have been  stage-managed  by  Mohd. Yunis in  order to  furnish a  ground for  setting aside the election of  the appellant in case he was elected appears to be probable,  particularly in  view of the admission made by P.W. 1  Ghulam Mohiuddin  to which  a reference  has already been made. The best person to explain these facts would have been Mohd. Yunis himself and the petitioner has not examined him as  a witness  at all.  It appears  from the order-sheet that Mohd.  Yunis was  summoned and  he was  present but the petitioner did  not choose  to examine  him. It  seems to us that Mohd. Yunis being fully aware that he was the architect of the whole drama did not want to face the Court.      Apart from  this circumstance,  the evidence led by the petitioner on  the question  that there was some overwriting in the  signature of his proposer P.W. 1 Ghulam Mohiuddin on the nomination  form subsequent  to the date of the scrutiny is far from convincing.      In view of our finding that neither the petitioner P.W. 6 nor  Ghulam Mohiuddin  P.W. 1  were present on February 9, 1972 when  the nomination  paper of the petitioner was taken up  for   scrutiny  by  the  Returning  Officer,  these  two witnesses are  not at  all competent to depose as to whether or not  on that  date  there  was  any  overwriting  in  the signature of  P.W. 1. In these circumstances, therefore, the evidence of  P.W. 1  and 6  will have to be excluded on this point. Even  so it  will be  interesting to  note  that  the petitioner  P.W.   6  does   not  say  that  there  was  any overwriting on  the signature  of P.W. 1 Ghulam Mohiuddin on the nomination  form but  he states that on a perusal of the nomination paper  it appears  that some  ink was spread over his 14 signature.  An   examination  of  the  signature  of  Ghulam Mohiuddin would  reveal to  the naked  eye that  there is no question of  the spreading of any ink over the signature but what has been done is that there is clear overwriting on the signature.      P.W. 2  Qazi Mohammad  Abdullah appears  to be  a close acquaintance  of  the  petitioner  and  had  helped  him  in engaging the  services of  Girdhari Lal  for the  purpose of filling up  the nomination  paper which was also done at his own house.  This witness  also states  that Ghulam Mohiuddin had affixed his signature in his presence with the fountain- pen of  the petitioner.  He further asserts that on the date of his  deposition he  found that  there was  an overwriting over the signature of Ghulam Mohiuddin. This witness was one of  the  proposers  of  Mohd.  Yunis  who  had  set  up  the petitioner as  his dummy  candidate as  held by us. In these circumstances, therefore,  this witness  was interested  and has tried  to help  the petitioner. Moreover he does not say that on February 9, 1972 when the scrutiny of the nomination paper of  the petitioner  was  taken  up  by  the  Returning Officer he  had an  opportunity to  inspect  the  nomination paper in order to find out whether there was any overwriting on the  signature. His evidence, therefore, does not exclude

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 25  

the possibility  of the  over writing having been made after Ghulam Mohiuddin  had signed  the nomination  paper  at  the residence of the witness and before the nomination paper was filed or  its scrutiny  taken up.  Furthermore, the  witness admits that  he is  also a  Congress  worker  and  knew  the petitioner for  the last  four  years.  For  these  reasons, therefore, in  the first  place the evidence of this witness is interested,  and secondly it does not appear to be of any assistance to the petitioner.      The other  witness examined  on this  point is  P.W.  3 Mohd. Maqbool Mir. A perusal of the evidence of this witness convinces us  that he  is  an  utterly  unreliable  witness. Although a lawyer of sufficient experience the witness seems to have  scant regard for the purity of the legal profession or the norms of professional ethics. He was a counsel of the appellant and  had been engaged by him at the time of filing of the  nomination paper and its scrutiny. He was present on February 9,  1972 before  the Returning Officer on behalf of the appellant.  He further admits that he had also agreed to become the  agent of  other contesting candidates. The order Ext. RW  3/3 clearly  mentions that  the witness  did  raise objection  on   behalf  of   the  appellant   regarding  the genuineness of  the signature of P.W. 1 Ghulam Mohiuddin and yet the  witness who appears to have transferred his loyalty to the  petitioner deposes  with impunity  that he  did  not raise  any   objection  regarding  the  genuineness  of  the signature of  Ghulam Mohiuddin  and that the overwriting did not exist  at the  time of the scrutiny. The dramatic manner in which  he has  made his  appearance as  a witness for the petitioner speaks  volumes against  the credibility  of  his testimony. He  admits that  he had never appeared before the High Court  and he  happened to come to Srinagar on November 13, 1972  to make  some purchases  for  his  uncle  who  was proceeding on a pilgrimage to Mecca. As he happened to be in the Court  premises his  name was  called  out  and  he  was directed to  appear  as  a  witness  without  receiving  any summons from the Court. The 15 appellant has  categorically stated  in his evidence that he had informed  this witness that he might have to be examined on his behalf in the trial before the High Court and yet the witness knowing  full well  that he was the retained counsel of  the   appellant  readily   agreed  to   depose  for  the petitioner. Finally  the witness  admits that  he deals with about 100  cases per  month and  yet he  does  not  pay  any income-tax. In  view of  these circumstances,  therefore, we are not  in a position to place any reliance on the evidence of this  witness. In  fact the  learned Judge  was also  not inclined to place implicit reliance on the testimony of this witness and in this connection the learned Judge observed as follows:           "There have  been great  comments made with regard      to the  veracity and  dependability of the statement of      this witness  and if  the matter had rested only on the      testimony of this witness, then it could have been said      that some  how or  other this witness had changed sides      and has  come to  depose  but  his  testimony  and  the      statements made  by him  have to be judged in the light      of the  other evidence  and the facts and circumstances      of the case."      We are  now left  with the  evidence of P.W. 5 Girdhari Lal. This  witness was admittedly counsel for the petitioner and was  therefore thoroughly  interested in  supporting the case of the petitioner. The witness has also stated that the nomination paper  bore the signature of Ghulam Mohiuddin but

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 25  

at the  time when he was deposing there was some overwriting in his  signature. The  witness says  that he was present at the time  of the  scrutiny and  had inspected the nomination form and  found that  the signature  of Ghulam Mohiuddin did not contain  any overwriting  at  that  time.  He,  however, admits that  the petitioner  Ali Akbar  Khan was not present when the  scrutiny was taken up and his nomination paper was rejected by the Returning Officer. Indeed if this was so, as a retained  counsel for  the petitioner,  it was his duty to point out  to the  Returning officer that under s. 47 of the Act the  Returning officer  was  not  legally  competent  to reject the  nomination paper  merely on  the ground  of  the absence of  the petitioner  or his  proposer.  He,  however, remained absolutely  silent. This  clearly shows that either he was aware that the overwriting on the signature of Ghulam Mohiuddin was  already there  at the time of the scrutiny or that he  did not  know about  it, nor did he care to examine the nomination  paper at  that time. The witness admitted at p.  106  of  the  Paper  Book  that  the  rejection  of  the nomination paper  on  the  ground  of  the  absence  of  the candidate or  his proposer was in his opinion improper under s. 47  of the  Act. In  spite of  this fact it is not at all understandable why  he did  not draw  the attention  of  the Returning officer to this fact, if the Returning officer had rejected the  nomination paper  merely on  the ground of the absence  of   the  petitioner  or  his  proposer.  In  these circumstances, therefore,  there  appears  to  have  been  a method in  his silence which indicate that he was a privy to the whole  show put  up by  the petitioner  and wanted  that somehow or  the other the nomination paper of the petitioner may be  improperly rejected  so as to afford a ground to his client to 16 upset the  election of  the successful  candidate. In  these circumstances, therefore,  we are not in a position to place any reliance on the evidence of this witness.      This is all the evidence that the petitioner has led in support of his case that the overwriting on the signature of Ghulam Mohiuddin  was made subsequent to the scrutiny of the nomination form.      As against this there is clear and categorical evidence of the appellant Mohd. Yasin Shah R.W. 4 who stated thus:           "After  examination  of  the  nomination  form,  I      raised objection  that the  signature of  the  proposer      appeared to  be doubtful  and I also said that probably      it is  not his  signature. No one at that time appeared      to rebut  this objection  of mine and to assert that it      was the signature of the proposer." His evidence was fully corroborated by the Returning officer Abdul Rehman Mir, R.W. 3, who has clearly stated thus:           "The nomination  form already marked Ext. P.W. 5/2      was presented  before me in the same condition in which      it is  at present.  I was also the Returning officer of      Lolab,  Kupwara  assembly  constituencies  besides  the      Karnah assembly constituency." We have  already pointed  out that  R.W. 3 is an independent witness being  a high  Government officer.  The  allegations made by  the petitioner  against him  have not  at all  been substantiated and appear to be totally unfounded as found by us. There is neither any suggestion nor any evidence to show that he was in any way interested in the appellant or biased against the  petitioner. On  the other hand, R.W. 3 being an independent  Government  officer  would  naturally  have  no leanings  towards   either  party.   Furthermore,  the  most important question  to be determined was, if any overwriting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 25  

was made, who would be interested in making the same ? It is obvious that  the Returning officer had absolutely no motive to make  any overwriting  on the  signature of  P.W. 1.  The Returning officer  has also  admitted in  his statement that after  the   scrutiny  the   record  was  deposited  by  him personally with the District Treasury Officer, Baramulla, as per the  directions of  the Deputy  Commissioner, Baramulla, who was  also  the  District  Eelection  officer.  In  these circumstances, therefore,  why should  the Returning officer have taken the grave risk of tampering with the record after the same was deposited with the District Treasury officer on the directions  of the  Deputy Commissioner,  Baramulla, and why should  he at all do it ? Perhaps it was for this reason that the learned Judge did not like to go into this question at all  and refrained  from making  any observation  on this aspect  of   the  matter  but  casually  observed  that  the overwriting might have been brought into existence after the scrutiny. We  think that  there is absolutely no evidence to support this fact.      Finally there  is another  intrinsic circumstance which shows that  the overwriting  must have  been there  when the nomination paper 17 was filed  or was  taken up  for scrutiny  by the  Returning Officer. The  order of  the Returning  officer Ext. R.W. 3/3 clearly  shows  that  an  express  objection  was  taken  by Mohammad Maqbool  Mir on  behalf of  Mohammad Yasin that the signature  of   the  proposer   was  not   genuine.  If  the overwriting would  not have been there, there was absolutely no occasion  for the  appellant  to  have  raised  any  such objection. We have examined the signature purported to be of Ghulam Mohiuddin,  P.W. 1,  and we  find that there is clear over-writing by  which various  letters of  the signature of Ghulam Mohiuddin  have been  tampered  with.  The  Returning officer has  also deposed  that he  had given  time  to  the candidates to  examine the  nomination papers at the time of the scrutiny  in order  to submit  objections, if  any.  The appellant and  his counsel  examined the nomination paper of the petitioner  and did  raise an  objection  regarding  the genuineness of  the signature  of his  proposer P.W. 1. This objection has  been recorded  in the  order  passed  by  the Returning Officer.  In view of these circumstances we see no reason at  all to  distrust the  evidence of  the  Returning officer R.W. 3 on the point that the nomination paper was in the same  condition at the date of the scrutiny as it was on the date when he was deposing.      There is  yet another  matter on which there appears to be  a   serious  controversy   between  the   parties.   The petitioner’s case was that the appellant Mohd. Yasin had not at all  raised any  objection  to  the  genuineness  of  the signature of P.W. 1. Ghulam Mohiuddin on the nomination form and  that   the   aforesaid   objection   was   subsequently incorporated by  the  Returning  officer  in  his  order  by committing interpolation.  On the other hand the appellant’s definite case was that after inspecting the nomination paper he raised  a clear  objection before  the Returning  officer regarding the  genuineness of  the signature of the proposer Ghulam Mohiuddin and this objection was not only recorded by the Returning  officer  at  that  very  time  but  was  also sustained.  The  case  of  the  appellant  is  substantially corroborated by  the recitals  in Ext.  R.W. 3/3  the  order passed by the Returning officer which must be presumed to be genuine as  there is  nothing to  show that  it  was  either interpolated or  brought into  existence  subsequently.  The petitioner’s  case,   however,  rests  purely  on  the  oral

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 25  

evidence of  a few  interested witnesses.  To begin with, so far as  the evidence  of P.W.  1 Ghulam Mohiuddin and P.W. 5 The  petitioner  is  concerned  the  same  would  be  of  no assistance in  deciding this  question because as held by us these two  persons were  not present  at  the  time  of  the scrutiny and  therefore they  were not  competent to  depose whether or  not any  objection was  taken by  the  appellant regarding  the   genuineness  of  the  signature  of  Ghulam Mohiuddin. It  is true that P.W. 3 Mohammed Maqbool Mir. who was the  counsel for  the appellant has stated that he never raised any  objection on behalf of the appellant at the time of the  scrutiny. We  have already discussed the evidence of this witness  and held  that he  was an  utterly uncreliable witness  for  the  reasons  which  we  have  already  given. Moreover he  appears to  be a  turn-coat type of witness and has changed  sides as observed by the learned Judge. Finally his evidence  is clearly  contradicted by  the document Ext. R.W. 3/3  wherein it  is clearly  mentioned that the witness Mohd. Maqbool did raise objection regarding 18 the genuineness  of the signature of P.W. 1 Ghulam Mohiuddin on behalf  of the  appellant before the Returning officer at the time of the scrutiny. In these circumstances, therefore, we are  not able  to place  any reliance  on the evidence of this witness.      The last witness on the point is P.W. 4 Gulam Qadir Mir who has  no doubt  stated that no objection was taken by any body at  the concerned  time. This  witness, however, was an agent of a different candidate and was not at all interested in the  appellant and  as, according  to him, he was at some distance from  the Returning  officer it is possible that he may not  have heard  the objection  taken by  the  appellant before the  Returning officer.  At any rate, the evidence of this witness  by itself  is not sufficient to demolish other circumstances  appearing   in  the  case,  particularly  the recitals in the documents R.W. 3/3.      As against  this, R.W.  1,  who,  as  we  have  already pointed  out,   is  an  independent  witness,  and  being  a candidate himself  was present at the time when the scrutiny of the  nomination took  place, and  his interest  was by no means identical  with the  appellant and,  therefore, had no reason to depose falsely to help the appellant. This witness has categorically stated thus:           "Respondent No.  1 (appellant) at that time raised      an objection  that he  was challenging the signature of      the proposer on the nomination paper of the petitioner.      *         *         *         *         *         *           When there  was an  objection  to  the  nomination      paper  of  the  petitioner  by  Mohd.  Yaseen  then  he      (Returning officer)  scrutinised the  nomination  paper      and passed  an order which was announced in the absence      of the petitioner." Similarly, R.W.  3 the  Returning Officer  has also  clearly deposed that  an objection was raised by the appellant which was recorded  in his  order. The  evidence of  R.Ws. 1 and 3 finds ample  corroboration from the recitals in the document Ext. R.W.  3/3. Apart  from this  R.W. 2  who is  no doubt a counting agent  of the  appellant has  testified to the fact that the  appellant had  raised an  objection regarding  the genuineness of  the signature of P.W. 1 Ghulam Mohiuddin. As the  evidence   of  this  witness  is  corroborated  by  two independent witnesses  R.Ws. 1  & 3  we  see  no  reason  to disbelieve him. Lastly there is the categorical statement of the appellant  himself that  he did  raise an  objection. In these circumstances,  therefore, we  are satisfied  that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 25  

evidence led by the appellant far out  weighs the interested oral   testimony   led   by   the   petitioner.   In   these circumstances, therefore,  we find  that it  has been proved beyond doubt  that the  appellant  did  raise  an  objection regading the  genuineness of  the signature of P.W. 1 Ghulam Mohiuddin before  the Returning officer on February 9, 1972, at the time of the scrutiny of nomination papers.      It is, therefore, established that at the time when the nomination paper of the petitioner was taken up for scrutiny the overwriting on 19 the signature  of P.W.  1 Ghulam Mohiuddin was already there and there  is a  strong possibility that the overwriting had been deliberately  made at the instance of the petitioner so as to furnish a ground for setting aside the election of the successful  candidate  if  the  official  candidate  of  the Congress failed to win the election.      Mr. Pathak learned counsel for the petitioner submitted that a  bare perusal  of the  order of the Returning officer would clearly  show that  there  has  been  some  tampering. Before examining  this contention  we may  mention that from the  evidence   and  circumstances   discussed  above,   the following facts emerge:           (i)  that the  petitioner was a dummy candidate of                the Congress;           (ii) that R.W.  1 Mohd.  Anwar  Shah  Masoodi  had                expressed his  clear apprehension  that there                was very  little chance  of Mohd.  Yunis  the                official candidate of the Congress to win the                election, and,  therefore,  there  was  every                motive for  the petitioner  to have  prepared                some ground  for asailing the election of the                appellant in case he was successful;           (iii)that on  the date  of  the  scrutiny  of  the                nomination papers  neither the petitioner nor                his  proposer   were   present   before   the                Returning officer;           (iv) that  at   the  time   of  the  scrutiny  the                appellant either  personally or  through  his                counsel definitely  raised an objection about                the genuineness  of the  signature of  P.W. 1                Ghulam Mohiuddin on the nomination paper Ext.                P.W. 5/2; and           (v)  that the overwriting on the signature of P.W.                1 Ghulam  Mohiuddin was  present even  at the                date of  the scrutiny and perhaps even on the                date when  the  nomination  paper  was  filed                before the Returning officer.      In the  background of  these proved facts, we would now examine whether  or not the contention raised by the learned counsel for  the petitioner  is correct. The order passed by the Returning  officer rejecting the nomination paper of the petitioner which is Ext. R.W. 3/3 runs thus:           "The candidate  and the  proposer are not present.      Hence rejected,  also an  objection has  been raised to      the genuineness  of the  proposer’s  signature  by  one      Mohd. Maqbool  counsel for Mohd. Yaseen Shah candidate.      I could  not verify it for absence of candidate and the      proposer." It was contended by Mr. Pathak that this order runs into two parts. By  the first part of the order the Returning officer appears to  have rejected the nomination paper merely on the ground of  the absence of the candidate and the proposer. By the second part, which 20

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 25  

according to  the counsel for the petitioner appears to have been  added   subsequently,  the   objection  taken  by  the appellant  regarding   the  genuineness  of  the  proposer’s signature has  been recorded,  and even  so,  the  Returning Officer has  not given  any decision  on this point. We have perused the  original order  passed by the Returning officer very carefully,  but we  find that the entire order has been written in  the same  ink with  the same  pen and appears to have been  written in  one sitting. There is nothing to show that the  second part  of the  order was  added subsequently because the  strokes of  the letters, the ink which has been used and  the general tenor of the writing appears to be the same  throughout.  In  these  circumstances,  therefore,  we reject the contention of the petitioner that the second part of the  order was  added subsequently.  We accordingly  hold that the  allegations made  by the  petitioner  against  the Returning Officer  in paragraph  26 of the election petition are totally  unfounded  and  the  petitioner  has  miserably failed to  prove the same. The entire order of the Returning Officer was  written in  one sitting  and there  can  be  no question of  any interpolation  having been  made by him nor had the  Returning Officer any motive to do so. Nevertheless it is  true that  after  having  written  the  order  "Hence rejected", the  Returning officer  appears to  have recorded the  fact   that  an  objection  was  raised  regarding  the genuineness of the proposer’s signature. For this R.W. 3 the Returning officer  appears to  have given  a very convincing and reasonable  explanation.  He  says  that  while  he  was writing his  order  and  had  not  completed  the  same,  an objection was  taken by  Mohd.  Maqbool  counsel  for  Mohd. Yaseen regarding  the genuineness  of the  signature of  the proposer. At  that time  the clerk  had already put the seal and, therefore, the Returning officer recorded the objection raised by  the appellant in the space left and completed his order and thereafter he signed above the seal. The Returning officer R.W. 3 in this connection stated thus:           "When in  spite  of  repeated  calls  neither  the      petitioner nor  his proposer turned up before me, then,      I   began to  write out  the order  on the  back of the      nomination  form.....After   the  scrutiny   by   them,      Mohammed Yaseen  as; well  as his  counsel brought this      fact to my notice that the signature of the proposer on      the nomination form of the petitioner was not genuine..      ........ The  portion in  my order  regarding the  non-      appearance of the petitioner or his proposer as well as      the  portion   regarding  the   objection   about   the      genuineness  of   the  signature  were  written  by  me      contemporaneously at  the time  of passing the order on      the nomination  form in  respect of  the scrutiny.  The      seal is  not below my order but it is just in the midst      of the  portion of  my order and the reason for this is      that at the time of the scrutiny when I was passing the      order, my clerk was also standing by my side and he was      affixing the  seal and  it so happened that while I was      hearing the  objection in  respect of  this  nomination      form, the clerk affixed the seal at that place." The Returning officer further stated in his evidence that he upheld the  objection of  the appellant as there was no body on behalf of the 21 candidate to  rebut the  objection raised  by the appellant. The explanation  given by  the Returning  Officer  is  fully corroborated by  the  evidence  of  the  appellant  and  his witnesses,  particularly  R.W.  1,  who  is  undoubtedly  an independent witness.  As  we  have  already  held  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 25  

Returning  Officer   was  an   independent  witness   and  a Government official,  there is  absolutely no  reason why he should have added a part of the order subsequently.      It was  then contended  by Mr.  Pathak that even though the Returning  Officer recorded  the objection  taken by the appellant he  has not  expressed any  final opinion or taken any decision  in the  matter. Our  attention was drawn to s. 47(2) (c) of the Act which runs thus:           "47. (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      enquiry, if  any, as  he thinks  necessary, reject  any      nomination on any of the following grounds:-      *         *         *         *          *         *           (c) that  the signature  of the  candidate or  the      proposer on the nomination paper is not genuine." It was submitted that the Returning Officer has nowhere held as a  fact that  the  signature  of  the  proposer  was  not genuine. He has merely indicated the objection raised by the appellant  but   has  not  examined  the  validity  of  that objection and,  therefore, the  order must be read as having rejected the  nomination paper  merely on  the ground of the absence of  the candidate  and his proposer. It is true that under s.  47(2) (c)  which is  the only  relevant  provision which applies  to this case it was not open to the Returning Officer to  reject the nomination paper merely on the ground of the absence of the candidate or his proposer. The learned Judge seems  to have accepted the petitioner’s argument that on his  interpretation of  the  order  and  found  that  the nomination paper  was rejected  merely on  the ground of the absence of the candidate and his proposer. The learned Judge has also  held that having rejected the nomination paper any subsequent observations  which the  Returning  Officer  made would have  to be ignored as he became functus officio. This interpretation of  the learned Judge has been adopted by Mr. Pathak learned  counsel for  the petitioner.  On a close and careful reading  of the order of the Returning Officer, as a whole, we are unable to agree with the interpretation put by the learned  Judge or adopted by the learned counsel for the petitioner. We  have already  pointed out  the facts  proved which clearly  show that  at the  time  when  the  Returning Officer passed  the order he had before him the signature of Ghulam Mohiuddin  with an  overwriting. Both  P.W. 1  Ghulam Mohiuddin and  counsel for the petitioner have categorically admitted in  their statements  that  the  signature  in  the present form  with the  overwriting was not the signature of Ghulam Mohiuddin.  P.W. 1 at p. 66 of the Paper Book deposed as follows: 22           "Question: Do  you accept  this  signature  to  be      yours in its present form as it stands ?           Answer: I do not accept this to be my signature in      the forms as it stands at present." Similarly P.W.  5 who  is counsel  for the petitioner and in whose presence  P.W. 1  had signed the nomination paper also admits in clear terms thus:           "In the  present form  I do  not accept that it is      the signature of Ghulam Mohi-ul-Din." Thus if  the person  who had signed the nomination paper and the lawyer in whose presence Ghulam Mohiuddin had signed the nomination  paper  were  convinced  that  the  signature  as overwritten was  not the  signature of Ghulam Mohiuddin, how can we  find fault with the Returning Officer if he also, on a  bare   perusal  of  the  nomination  paper,  doubted  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 25  

genuineness  of   the  signature  ?  The  suspicion  of  the Returning Officer regarding the genuineness of the signature of the  proposer was  further reinforced  by the fact that a specific objection  on this  point was  taken by counsel for the appellant  as recorded  in the  order itself.  Thus  the order read  as a  whole clearly  shows that  the  nomination paper was rejected not only on the ground that the candidate or his  proposer was not present but also on the ground that the signature  of the  proposer on  the nomination paper was not genuine.  It is  true that the Returning Officer has not given any  clear finding on this point, but s. 47 of the Act does  not  require  well  reasoned  decision.  All  that  is necessary is  that the  Returning Officer  should apply  his mind and  determine the  question in  a summary  manner. The Returning  Officer  has,  in  the  instant  case,  indicated objection taken  by the  appellant regarding the genuineness of the  signature of  the  proposer  and  has  also  clearly observed that in view of the objection it is not possible to verify the signature in the absence of the candidate and the proposer. Thus the absence of the candidate and the proposer has  been   used  not  for  the  purpose  of  rejecting  the nomination paper  but for  the  purpose  of  supporting  the conclusion of  the Returning  Officer that  the signature of the proposer  was not genuine. Even assuming for the sake of argument that  the Returning  Officer had  in effect  and in substance rejected the nomination paper on the ground of the absence of  the candidate  and the  proposer which was not a valid ground  for rejection  of the  nomination paper,  this does not  put an  end to  the controversy. There is abundant authority for  the proposition  that even  if the  ground on which the nomination paper has been actually rejected is not a permissible  ground, if  the successful candidate can make out a  case  that  the  nomination  paper  could  have  been properly rejected  on one  of the grounds mentioned in s. 47 of the  Act, the  rejection would  not be  improper and  the election  would   be  upheld.  This  Court  considered  this question in  N. T.  Veluswami Thevar  v. G.  Raja  Nainar  & Ors.(1) and observed as follows:           "The argument  is that  if the jurisdiction of the      Tribunal is  co-extensive with  that of  the  returning      officer, then the 23      enquiry before it must be confined to the grounds which      were urged  before  the  returning  officer.  Now,  the      observations  quoted  above  were  made  statedly  with      reference to  R. 47, and assuming that they apply to an      enquiry under s. 100(1)(c), the question still remains,      what is  the jurisdiction  of the  returning officer in      hearing  objections   to  nomination   papers   ?   His      jurisdiction is  detined in  s. 36(2), and the Tribunal      must therefore  have jurisdiction  to  decide  all  the      questions which  can be  raised under that section. The      fact that  a particular  ground which  could have  been      raised was  not, in  fact, raised  before the returning      officer does  not put  an end  to his  jurisdiction  to      decide it,  and what  he could  have decided  if it had      been raised,  could be  decided by  the Tribunal,  when      raised." p. 635.           "They held,  with one  solitary exception, that it      is permissible,  and indeed,  it is stated in Mengh Raj      v. Bhimandas-(1952)  2 E.L.R.  301, 310-as  settled law      that  the  rejection  of  a  nomination  paper  can  be      sustained on  grounds not  raised before  the returning      officer. If the legislature which must be taken to have      knowledge of  the law as interpreted in those decisions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 25  

    wanted to  make a departure from it, it would have said      so in  clear terms,  and in  the  absence  of  such  an      expression, it  would be  right to  interpret s. 100(1)      (c) as  not intended  to alter  the law as laid down in      those decisions." p. 636.           "The question  now  under  consideration  came  up      directly  for   decision  before   the  High  Court  of      Rajasthan in  Tej Singh  v. Election  Tribunal, Jaipur-      (1954) 9 E.L.R. 193-and it was held that the respondent      to an  election petition  was entitled  to raise a plea      that the  nomination of  the petitioner rejected on one      ground by the returning officer was defective on one or      more of  the other grounds mentioned in s. 36(2) of the      Act, and  that such  a plea, if taken, must be enquired      into by the Election Tribunal." p. 637           "An unreported judgment of the Andhra Pradesh High      Court in Badrivishal Pitti v. J. V. Narsing Rao-Special      Appeal No.  of 1957-has  been cited before us, and that      also takes  the view  that in  an  enquiry  before  the      Election Tribunal, it is open to the parties to support      an order  of rejection of a nomination paper on grounds      other than  those which  were put  forward  before  the      returning officer.  We  are  in  agreement  with  these      decisions." p. 637 Mr. Pathak  learned counsel  for the  petitioner  sought  to distinguish this  decision on  the ground  that while  it is open to the Tribunal, or the High Court in the instant case, to examine other grounds on which the nomination paper could have been rejected, yet in the present state of pleadings no such question  appears to  have been  raised before the High Court. This argument does not appear to be factually 24 correct. This  plea was specifically raised by the appellant in paragraph-8  of his  written statement  relevant part  of which may be extracted thus:           "The   answering    respondent   challenges    the      genuieness of  the signature  of the  proposer  of  the      petitioner  which   could  neither   be  rebutted   nor      challenged by  the petitioner  or his  proposer as both      were absent  and hence  the rejection of the petitioner      was announced  by the  Returning Officer, who under the      circumstances was  justified under  section 47  of  the      R.P.  Act   to  reject  the  nomination  paper  of  the      petitioner and  as such this rejection cannot be deemed      to be  in law  as improper rejection and the petitioner      cannot now  challenge the same as there is no infirmity      in the order of rejection by the Returning Officer." Furthermore in  the additional  written statement,  filed by the appellant after the learned Judge allowed the petitioner to amend his election petition, this point was reiterated in paragraph 2(iv) thus:           "That  the   signature  of  the  proposer  on  the      nomination form  as  was  also  challenged  before  the      Returning Officer  is not  genuine and the rejection is      not improper." In paragraph-4  of the  said additional written statement it was stated thus:           "That the  signature of  the proposer Ghulam Mohi-      uddin not  being genuine  on the  nomination  form  the      rejection is not improper and the petition is liable to      be dismissed."      The learned  Judge had framed issue No. 1 in the widest possible terms  which includes  rejection of  the nomination paper even  on the ground that the signature of the proposer was not genuine which is undoubtedly a valid ground under s.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 25  

47(2) (c)  of the Act. The issue framed by the learned Judge was as follows:           "1. Whether the nomination paper of the petitioner      was improperly and illegally rejected ? O.P.P." It is  manifest that  this issue  covers the decision on the question  as   to  whether  various  grounds  on  which  the nomination  paper   could  have   been  improperly  rejected including the  ground mentioned  in s. 47(2) (c) of the Act. namely, the  fact that the signature of the proposer was not genuine. Even  the  learned  Judge  clearly  understood  the pleadings of  the appellant  to include  the fact  that  the nomination paper  was rejected because of the genuineness of the signature  of  the  proposer.  In  this  connection  the learned Judge  in his  order dated November 7, 1972 observed as follows:           "It appears  from the petition that the ground was      the absence  of the  petitioner  at  the  time  of  the      scrutiny of  the nomination  paper but  it also appears      from the  written statement  filed by the respondent as      well as from the order 25      of the  Returning Officer that the nomination paper had      also been  rejected because  of the  genuineness of the      signature of  the proposer. The nomination paper can be      rejected  on   the  question   of  the  genuineness  as      contemplated by  clause (c)  of Section 47 of the J & K      Representation of the People Act of the State." It was  for these  reasons that  the learned  Judge did  not think it  necessary to  recast the issue, because he thought that  the  plea  taken  by  the  appellant  in  his  written statement was  fully covered by the issue already framed. In these circumstances,  it is  clear that  the  appellant  had clearly raised the question that the nomination paper of the petitioner could  be properly rejected under s. 47(2) (c) of the Act  even on  the  ground  that  the  signature  of  the proposer was  not genuine.  The learned  Judge committed and error in  not deciding  this particular  plea taken  by  the appellant when  he found  that  the  Returning  Officer  had improperly rejected  the nomination  paper on  the ground of the absence of the candidate and the proposer.      We have,  however, examined the various aspects of this question and from the facts found by us it is clear that the overwriting in  the signature  which was present at the date of the  scrutiny  also  throws  considerable  doubt  on  the genuineness  of   the  signature   of  the  proposer  Ghulam Mohiuddin as  clearly admitted  by him and the lawyer of the petitioner himself.  The fact  that  the  proposer  and  the petitioner were  both absent  on the  date of  the  scrutiny lends sufficient support to the inference that the signature of the proposer Ghulam Mohiuddin on the nomination form does not appear  to be genuine. It is also clearly established as found by  us that  the  appellant  did  raise  an  objection regarding the  genuineness of  the signature of the proposer Ghulam Mohiuddin  on the  nomination form and that there was no one present on behalf of the candidate to rebut or refute the objection taken by the appellant. On the other hand P.W. 5 who  was the  counsel for  the  petitioner  and  in  whose presence  the  proposer  Ghulam  Mohiuddin  had  signed  the nomination form  was actually  present at  the time  of  the scrutiny and  yet, for reasons best known to him, he did not choose to  stand up  and point  out to the Returning Officer that the  objection raised  by the appellant was not tenable because the  proposer had  signed the nomination form in his presence.  Lastly   the   signature   which   contains   the overwriting ex facie shows that it was not genuine. In these

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 25  

circumstances. therefore,  the only  irresistible  inference that could  be drawn  would be that the signature containing the overwriting  in the present form, which was in existence even at  the time  of the  scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin. To add to this is the fact that  P.W. 1  himself  clearly  admitted  that  in  the present  form,   namely,  the   signature   containing   the overwriting, he  was not  in a position to admit that it was his signature.  This assertion was fully supported by P.W. 5 Girdhari Lal  counsel for  the petitioner  in whose presence P.W. 1  is said  to have  signed the  nomination  form.  The learned Judge  appears to  have entered  into the  domain of speculation by  brushing aside  the  clear  and  categorical admission made by P.W. 1 on the ground that the question put to him 26 had placed  him on the horns of a dilemma. Once it is proved that the  signature in  the present form existed even at the time of  the scrutiny,  then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both  clear and unambiguous. We do not see any vagueness or ambiguity  in the answer given by the witness. Instead of taking the  clear admission  of P.W. 1 on its face value the learned Judge  tried to brush it aside on purely speculative grounds. In  these circumstances we are unable to agree with the view  taken by  the learned  Judge which  is based  on a misreading and  misinterpretation of the evidence of P.W. 1. For the  same reason, we reject the contention of Mr. Pathak that  the   admission  of   P.W.  1   was  vague.  In  these circumstances, therefore, we hold that it has been proved to the satisfaction  of the  Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature.  The nomination  paper of the petitioner, therefore, could  have been  properly rejected on the ground that the signature of the proposer was not genuine. Thus the rejection of  the nomination  paper by the Returning Officer could be  supported even  on a ground different from the one which may  have been  taken by  the Returning  Officer. This being the position the rejection of the nomination paper was proper, and  the election  of the  appellant  could  not  be assailed under  s. 108(1)(c)  of the  Act  under  which  the election could  be  declared  void  only  if  there  was  an improper rejection  of the  nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being  proper one,  s.  108(1)(c)  was  not  at  all attracted.      It was  lastly contended  by counsel for the petitioner that this  Court ought not to interfere with the decision of the learned  Judge unless  there were  special  reasons  for doing so.  In support  of his contention the learned counsel relied upon  a decision  of this  Court in  Laxminarayan and another v.  Returning Officer and others(1) where this Court observed as follows:           "Section 116A of the Act provides for an appeal to      this Court  from an  order of the High Court dismissing      an election petition. The appeal lies both on issues of      law and  of facts  ................... The power of the      appellate Court  is very  wide. It  can reappraise  the      evidence and  reverse the  trial  court’s  findings  of      fact. But like any other power it is not unconfined: it      is subject  to certain inherent limitations in relation      to a  conclusion of fact. While the trial court has not      only read  the evidence  of witnesses on record but has      also read  their evidence  in their  faces,  looks  and      demeanour. The  appellate Court  is confined  to  their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 25  

    evidence on  record. appellate  Court  is  confined  to      their evidence  on record.  bility lies  is entitled to      great weight."  (See Saraveeraswami  v.  Talluri-A.I.R.      1949  P.C.   32).  However,  the  appellate  court  may      interfere with  a finding of fact if the trial court is      shown to  have overlooked  any material  feature in the      evi- 27      dence of  a witness  or if the balance of probabilities      as to  the  credibility  of  the  witness  is  inclined      against the opinion of the trial Court." The  propositions   enunciated  by   the  Court   are   well established  and   there  can   be  no   dispute  with   the propositions mentioned  above. In the instant case, however, we find  that the  approach of  the learned  Judge  was  not correct. We  have already  pointed out  a number  of salient features appearing  in the  evidence which have rendered the case of  the petitioner  inherently improbable.  The learned Judge appears  to have  overlooked these essential features. Further, the  learned Judge  himself had observed that issue No. 1  which he  had framed  was wide  enough to include the plea of  the  appellant,  and  even  if  the  order  of  the Returning Officer  in rejecting  the nomination paper on the ground of  the absence  of the candidate or his proposer was wrong, it  could still  be supported  on the ground that the signature of the proposer was not genuine. The learned Judge has not  determined this  aspect of  the  matter.  In  these circumstances, therefore,  we feel  that the judgment of the High Court is erroneous both on fact and in law and although the appellate  Court is  extremely slow  in  disturbing  the findings of fact, in the instant case, we are satisfied that the judgment  of the High Court is against the weight of the evidence on record and preponderance of probabilities.      For the reasons given above, the appeal is allowed, the order of  the High  Court setting  aside the election of the appellant Mohd.  Yasin Shah  is  quashed  and  the  election petition filed  by the  petitioner is  hereby dismissed. The appellant will be entitled to his costs throughout. P.B.R.                                       Appeal allowed. 28