TaxTMI 
TaxTMI 
2009 (5) TMI 934
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....tion 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. 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 t....
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....ng 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 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....
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.... 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 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 Represen....
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....ct. The said nomination paper be exhibited and read in evidence." 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 add....
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....its 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. 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 ....
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.... 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. Paragraph 4 mandates that all nomination papers were to be scrutinized by the returning officer. Paragraph 5 pr....
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....al 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." 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 ....
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....ination, 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 adopted by a statutory authority and the merit of the decision. Whereas in the former, the court would apply the standard of judicial review, in the latter, it may enter into the merit of the matter. Even in applying the standard of judicial review, we are of the opinion that the scope thereof having been expanded in recent times, viz., other than, (i) illegality, (ii) irrationality and (iii) procedural impropriety, an error of fact touching the merit of the decision vis-`-vis the decision making process would also come within the purview of the power of judicial review. In Cholan Roadways Ltd. v. G. Thirugnanasambandam [(2005) 3 SCC 241], this Court observed: "34. ... It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a ....
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....ision. 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: "...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 f....
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.... 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] 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, t....
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....quiry 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 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 on....
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....s 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: "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 ....
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....al. That approach of the High court in our considered opinion was illegal and unjustified. The High court was duty bound to treat the matter on merits by framing issues and thereafter calling for production of evidence in support of their respective cases. The High court should have examined the veracity of the rival claims based on the evidence produced by the parties and should have tested the correctness of the affidavits. The opinion of the hand writing expert in that regard would have been sufficient and on the basis of the same it could be possible for the High court to decide the entire lis between the parties. The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention. As the matter has not been adjudicated on merits, we set aside the judgment and order passed by the High Court and remit the matter to the High Court to proceed in accordance with law and decide the dispute raised in the election petition in accordance with law as expeditiously as possible and at least within a period of six months from today. Since it is a....