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

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  

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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]

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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.”

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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  

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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  

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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  

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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.

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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  

Review, 6th Edition, London: Sweet & Maxwell,  2007, Para 11-056] it  is  

stated as under:

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“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  

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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  

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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  

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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  

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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

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