Holding

The Supreme Court held that the High Court erred by treating the election petition as an appellate proceeding, by allowing the onus of proof to be shifted, and by not applying the statutory presumption of validity, and therefore set aside its order and remitted the case for a fresh trial on merits.

Summary

The appellant's nomination paper for the Maharashtra Legislative Council election was rejected by the Returning Officer on the ground that two proposers' signatures were forged. The appellant challenged the rejection in an election petition, alleging that the Returning Officer had erred in his decision‑making process, shifted the burden of proof onto the appellant, and failed to consider the statutory presumption of validity of nomination papers. The High Court treated the petition as an appellate proceeding, dismissed it without allowing the appellant to adduce further evidence, and held that the decision‑making process alone was the issue. The Supreme Court held that the High Court erred by not exercising its original jurisdiction, by allowing the onus to be shifted, and by ignoring the binding Handbook instructions and the presumption of validity. It clarified that a Returning Officer must follow the Handbook, cannot shift the burden of proof, and that the court must examine the merits with evidence. Consequently, the Supreme Court set aside the High Court judgment and remitted the matter for a fresh trial on merits, directing completion within six months. The appeal was allowed.

Issues considered

Whether the High Court was correct in confining its review to the Returning Officer's decision‑making process without examining the merits of the signature genuineness.
Whether the Returning Officer erred by shifting the onus of proving the authenticity of the proposers' signatures onto the appellant.
Whether the concession made by counsel precluded the appellant from adducing evidence on the genuineness of the signatures.
Whether the Handbook for Returning Officers is a statutory, binding instrument imposing a presumption of validity on nomination papers.
Whether the High Court, as a court of original jurisdiction in election petitions, acted as an appellate court contrary to law.

Legislation cited

Conduct of Election Rules, 1961
Representation of the People Act, 1951s. 100, s. 36, s. 83(1)(b)

Subjects

election petitionnomination paperreturning officerpresumption of validityjudicial reviewquasi‑judicial authoritySection 36Section 100original jurisdictionburden of proofaffidavitsignature verification

Judgment

(2009] 9 S.C.R. 538 {---...

A UTIAMRAQ SHIVDAS JANKAR
v.
RANJITSINH VIJf.YSi.JH MOHllE-PATIL
(Civil Appeal No. 7457 o~ 2008)
MAY 15, 2009
B
[S.B. SINHA AND DR~· MUKUNDAKAM SHARMA, JJ.] 1
Election laws:

c Eleetion petition - Jurisdiction of High Court - Held: Ir.
an electjon petition, High Court acts as a Court of original
jurisdiction and the jurisdiction therein stricto sensu cannot
be said to be appellate in nature - On facts, High Court acted
illegally in treating its . power only asI appellate authority and
D not as original authority, for it only proceeded to try and 'f
determine as to whether or not the decision making process
was legal - High court ought to ha11e examined the veracity _.
of the rival claims based on the evidence produced by the
parties - Representation of People Act, 1951 - Jurisdiction ·
of High Court to entertain election petition.
E
Instructions contained in 'Handbook of Returning Officer' "
issued by Ele,ction Commission of India - Binding effect of - y
'
Held: Are binding being statutory in nature.

F Presumption of validity of nomination papers - Held: It
is obligatory on part of returning ·officer to draw such. a
presumption - This was the intention of Parliament as also
Election Commission - Returning Officer is a quasi judicial
authority - A quasi-judicial authority while deciding an issue .+
of fact may not insist upon a conclusive proof.
G
Administrative law: Decision making process by
Returning Officer - Judicial review - Scope of.

H 538
540 SUPREME COURT REPORTS [2009] 9 S.C.R.
>----,
A The questions which arose for consideration 'before
this Court were 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;
B whether the Returning Officer by shifting the onus of
proof upon the appellant committed an error in its .;...
decision making process; and whether the purported
concession was wrong and in any event, by reason
t
thereof, the appellant was precluded from adducing I any
c evidence in regard to. the genuin~eness of the ~ignatures
of the proposer Nos. 7 and 8, to which he was otherwise
entitled to.

Allowing the appeal, the Court

D HELD: 1. Section 100 of the Representation of lo--

People Act provides for the grounds for declarfng --r
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 provision, would not
E 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 •I·
a decision making process adopted by a statutory y
F 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,
the-scope thereof having been expanded in recent times,
viz., other than, illegality, irrationality and procedural
G impropriety, an error of fact touching the merit of the
decision vis-a-vis the decision making process would
_j--
-
also come within the purview of the power of judicial
review. [Para 27] (560-E-H]

H
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 541
VIJAYSINH MOHITE-PATIL
_,. ~
Cho/an Roadways Ltd. v. G. Thirugnanasambandam A
(2005) 3 SCC 241; S.N. Chandrashekar v. State of Kamataka
(2006) 3 SCC 208; Indian Airlines Ltd. v. Prabha D. Kanan
(2006) 11 SCC 67; Meerut Development Authority v.
Association of Management Studies & Anr. 2009 (6) SCALE
49, relied on. B

~
2. 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. Improper rejection
c
of nomination paper 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 D
process but also the merit of the decision, no further
'If
question is required to be gone into. The Tribunal had no
other option but to set aside the election of the winning
candidate. [Para 28] [562-D-F]
' E
N. T. Ve/uswami Thevar v. G. Raja Nainar and Ors. 1959
Supp (1) SCR 623; Birad Mal Singhvi v. Anand Purohit 1988
. Supp SCC 604; Sushi/ Kumar v. Rakesh Kumar (2003) 8
SCC 673; Pothu/a Rama Rao v. Pendyala Venkata Krishr:Ja
y
Rao (2007) 11 sec 1, relied on. F
3. 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 for Returning Officers' issued by the
Election Commission of India. It provides for an G
... 1- opportunity to be given to candidate to rebut the
objections by placing sufficient materials on record and
presumption of validity of such nomination paper.
· Indisputably, the said instructions are binding being
H
542 SUPREME COURT REPORTS [2009] 9 S.C.R.
..
.}-- ''-.
A statutory in nature. When there exists a presumption ·in
favour of a party, it is for the other party to adduce
·evidence. [Paras 29 to 31] [565-C-E]

Rakesh Kumar v. Sunil Kumar (1999) 2 SCC 489, relied
on.
B
4. 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 signatl,lres· of. .the
c concerned proposers to be discrepant on the basis of th.e
;
naked eye comparison of their admitted signature$ and
the ones appearir:ig in the registers of the Municipal
Council.· While,. he proceeded on the basis that the said
proposers were appearing. before him and. filed their
D affidavits, indisputably affidavits were not. only 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 ·
E and disputing the contents filed by the said proposers
but also brought ·on· record the affidavits filed by other
' proposers who testified to the effect thatthey had signed .
in their presence. Even the returning· officer, ex facie, did ;~ \

not find any difference in their signatures in the
nomination paper and signatures. contained in the
r
F
atte.ndance sheets of Mangalwedha Munici·pal CounciL ·
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
G
that the ·proposer Nos. 7 and 8 changed· their mind 1ater
on. It was, an irrelevant question. [Paras 33 and 34] [566-
-k· -.
G-H; 567-A-D]

5. The presumption of correctness of the nomination
H paper being statutory in nature, as intention of the
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 543
VIJAYSINH MOHITE-PATIL
- -'!..
. Parliament as also the Election Commission was that A
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 to prove that the nomination paper prima B
facie did not contain the signatures of the proposers and,
, thus, ..-;are liable to be rejected. [Para 35] [567-E-F]
+
6. 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,
c
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
r:natter of taking a .decision on the objection as to whether

• ~
the same is valid or not, he is not only required to record D
· 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. In
an election petition, the High court, therefore,· was E
required to consider whether he had wrongly shifted the
·onus which would come within the purview of an error
~
·apparent on ·the face of the recoa·d. Evidence by way of
... y an affidavit is one of the modes of proving a question of
fact both under the Code of Civil Procedure as also under F
the Code of Criminal Procedure besides other special
statutes recognizing the same. 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, G
'i
t leads to a wrong answer, which is a misdirection in law.
.... [Paras .36, 38 and 39] [567-G-H; 568-A-B; 569-E-F]

De Smith's Judicial Review Harry Woolf, et. al. (Eds.),· De
Smith's Judicial Review, 6th Edition, London: Sweet &
.,.. H
544 SUPREME COURT REPORTS [~009) 9 8.C.R,

A Maxwell, 2007, referred to. f- --

7. II"! an election· petitiqn, the High Court acts as a
Court of original jurisdiction and the election petition is
a civil trial and the j1.1rj~dictio11 in such a trial, stricto
sensu cannot be said to be appellate in nature. Clearly,
B
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 -t
or not the decision making process is legal. That
approach of the High court was illegal and unjustified.
c 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 tiave examined the veracity
of the rival claims based on the evidence produced. by
D 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
E 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 was not -!'-

adjudicated on merits, the judgment and order passed by
F the High Court is set aside and matter is remitted to the
'I
...
High Court to proceed in accordance with law. [Para 40]
(569-G-H; 570-A-D]

8. A statutory right of a party to file an election
petition cannot and for all intent and purport, should not
G
be denied only on the bash~ of a wrong concession made ~
,.
by a counsel. 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. (Para 41] (570-G-H]
H 1-
.ot;
UTTAMRAO SHIVDAS JANKAR v. RANJITSINH 545
VIJAYSINH MOHITE-PATIL
"" --"'\
MP. Gopalakrishnan Nair and Another v. State of Kera/a A
and Others (2005) 11 sec 53, relied on.
C~$e Law Reference:

(2005) 3 sec 241 relied on Para 27
B
(2006) 3 sec 208 relied on Para 27
,'
t (2006) 11 sec 67 relied on Para 27

2009 (6) SCALE 49 relied on Para 27

1959 Supp (1) SCR 623 relied on Para 28 c
1988 Supp sec 604 relied on Para 28
....
(2003) s sec 673 relied on Para 28

~ ' (2001) 11 sec 1 relied on Para 28 D
"'!"
(1999) 2 sec 489 re•ied on Para 30
(2005) 11 sec 53 relied on Para 41
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7457 of 2008.
E

~ From the Judgmen\ & Order dated 16.9.2008 of the High
Court of Judicature at Bombay in Election Petition No. 1 of
_.. Y· 2004.
F
K.V. Viswanathan, Pramod Patil, Sushil Karanjkar, Shoeb
Alam, Abhishek Kaushik and K.N. Rai for the Appellants.

Nageshwar Rao, Sanjeev Sen, Ashish Jha, Meenakshi

..
.,...
-i
Chatterjee and "Coac" for the Respondents.

The Judgment of the Court was delivered by
G

I

•
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 ,
~ H
546 SUPREME COURT REPORTS [2009] 9 S.C.R.
,__. -~,
A 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
B of 2004.

2. Indisputably, an election to the local authorities ".:

constituency Solapur for Maharashtra Legislative Council --t
Biennial Elections, 2003 was to take place. The parties hereto
contested the said election. For the said purpose, the returning
c 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.
D ,....
/

3. Appellant filed his nomination paper in the prescribed y
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
E 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
:,.

F
appellant and one Ratan Govind Pandit, brother of Proposer
No. 8.

4. The candidates took part in the scrutiny of nomination
¥I
..
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
G officer. Simllar objection was also raised in relation to the
nomination of Shri Subhash Rajaram Patil, another candidate.
.f, ..
....
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
,.
'
H ~
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 547
VIJAYSINH MOHITE-PATIL [S.S. SINHA, J.]

be rejected. They also affirmed affidavits inter alia contending A
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 B
signature of the aforementioned proposer Nos. 7 and 8. It was
t
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. c
5. It is, iiowever, 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 verifiGation of their
signatures. D

6. The scrutiny of the nomination papers was adjourned
till 3.45 p.m. on 15.11.2003. The mat1terwas again taken up at
the. said time. The returning officer compared the signatures of
the said proposers. They were also present before him. E
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 F
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").

7. Appellant filed a writ petition questioning the rejection ·G
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 H
548 SUPREME COURT REPORTS [2009] 9 S.C.R. t- .. . . ,

A reports from the Forgery Detection Private Bureau upon
comparative analysis t>f the slgnatutes of the said two
proposers in the nomination papers and the sample signatures
contained in the attendance sheets of Mangalwedha Municipal

B
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 tt> by the returning
--t
..
officer, he filed an election petition on 30.12.2003; which Was
marked as Election Petition No. 1 of 2004.
c
10. Respondent 'indisputably filed ah interlooutory
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 ,.
D practices within the meaning of Sectfe>n 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 behalfof the appellant inter alia contended that
E
what was in question in the election petition was the decision
mak~g process on the part of the Returning Officer and it was
not case where the election petition was based on the y
.-
allegations of corrupt practices. ~

F 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
G
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
H
Jr -'I UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 549
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]

have been prayed for. I will assume for the purpose of which A
order that the petitioner has alleged corrupt practices on
the part of the Respondent."

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.
B

It was, however, observed:

"Before parting with this order it is necessary to refer to c
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
D

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 E
-\
manner in which the Returning Officer has come to his
decision that is under challenge and the sole basis on
.....
J

' 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
F
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."
~

13. Respondent filed his written statement thereafter. The G
learned Judge of the High Court framed the following issues in
the election petition:

"1. Whether the Petitioner proves that his nomination
for el~ction to the Local Authorities Constituency,
H
550 SUPREME COURT REPORTS [2009] 9 S.C.R.
f- -.. .

A Solapur of the Maharashtra Legislative Council
Biennial Elections 2003 was improperly rejected by
the Returning Officer? I

2. Whether the Returning Officer committed breach of
B
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 Mhet.re and Sharif
Mohammad Badshah Sutar personally at the time
and place of scrµtiny of the nomination and by
c further accepting and relying on their affidavits and l
written complaints, as alleged by the petitioner? · "
"",
I
3.· Whether the enquiry conducted by the Returning

D
. 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 Sectfon 36 of the Representation of the People
Act, 1951, as alleged by the petitioner?

4. Whether the Petitioner proves that result of the
E
election in question, in so far as it concerns the
returned candidate i.e. Respondent, herein, has ~
been materially affected by non-compliance with y
the provisions of Sub-sections (1) and (2) of +
Section 36 of the Representation of the People Act,
F 1951?

5. Whether the election of the Respondent as member
of the Maharashtra Legislative Council from the
Local Authorities Constituency, Solapur and the t
G 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?
,...
H
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 551
,,. -'I VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]
6. What order is the Petitioner entitled to, if any?" A

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, B
...,
I 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 c
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
Badshah Sutar and Sou. Jaymala Purnanad Mhetre. I say
'- I that accordingly all the said ten electors and one Ratan D
~
Govind Pandir came to resictence 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 E
Pandit and the said ten proposers and some other
.;>. supporters. I say that I first signed the nomination paper
t
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 F
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
G
· 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
H
552 SUPREME COURT REPORTS [2009] 9 S.C.R. ,_
f "'
A documents. I have seen the original from the record. I
identify my signatures on it and signatures df 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
B 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 'f ''
said nomination paper be exhibited and read in evidence."

15. An objection was raised thereto by the respondent
c 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 werh
.
'
D in fact genuine. The said objection was upheld by the Hig ':!-
....,._
Court by reason of an order dated 26.1.1.2007 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
E liberty to file an appropriate application for withdrawal thereof. l.

16. In terms of the liberty so.granted, the appellant filed an ;l
,;
application,.which was marked as Application No. 2 of 2008.
However, the said application was allowed to be withdrawn by "
F an order dated 24.04.2008 as was requested by the counsel
appearing on behalf of the appellant reserving his right to raise !f
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
G objection raised in that 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
H of the impugned judgment, the High Court dismissed the said
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 553
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]

election petition opining that the returning officer had not A
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.
B
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 c
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' .. D
(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. E

(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 F
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: G

(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, H
554 SUPREME COURT REPORTS [2009] 9 S.C.R.

A he cannot be said to have committed any error in
his decision making process.

(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
B
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
C 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
D 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
E 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
F 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.

G 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
H elections and the decision of doubts and disputes arising out
... .\
UTTAMRAO SHIVDAS JANKAR v. RANJITSINH
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]
of or in connection therewith.
555

The term "sign" has been defined in Section 2(i) of the Act
A

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 B
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. C
Section 35 empowers the returning officer to inform the person,
who is delivering the nomination papers, the date, time and
place 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: D
,. "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 E
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 F
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 G
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 H
556 SUPREME COURT REPORTS (2009) 9 S.C.R. ,,,
;. ~

A chosen to fill the seat under any of the following provisions
that may be applicab-le, namely:--

Articles 84, 102, 173 and 191,.

Part 11 of this Act and sections 4 and 14 of the Government
B of Union Territories Act, 1963 (20 of 1963); or

(b) that there has been a failure to comply with any of the
/ ......
-Y
provisions of section 33 or section 34; or

(c) that the signature of the candidate or the proposer on
c the nomination paper is not genuine.]

(3) *** ***

(4) *** ***
D (5) The returning officer shall hold the scrutiny on the date ....
appointed in this behalf under clause (b) of section 30 and 1-
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:
E
Provided that in case an objection is raised by the
returning officer or is made by any other person the
4
candidate concerned may be allowed time to rebut it not
later than the next day but one following the date fixed for t

F 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
G 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
H issued a Handbook for Returning Officers (for short "the
UTTAMRAO SHIVDAS JANKAR v. RANJITSINH 557

- ~ VIJAYSINH MOHITE-PATIL [S.S. SINHA, J.]
Handbook"). We are concerned with Chapter VI of- the A
Handbook. Paragraph 1 of the said Chapter provides for
scrutiny of nominations by the returning officer. Paragraph 2
provides for restriction of entry of persons at the scrutiny.
Paragraph 4 mandates that all nomination papers were to be
scrutinized by the returning officer. Paragraph 5 provides for B
-" 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
c
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 D
... 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." E

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
F
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 G
rejected and he is prevented thereby from contesting the
election, there is a 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 H
558 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 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."
B
Paragraph 7 makes the scrutiny of the nomination by the
returning officer a quasi-judicial duty. It reads as under:
:::y
"7. While holding the scrutiny of nomination paper, you are
performing an important quasi- judicial function. You have,
c therefore, to discharge thi~ 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
D 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
E 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
F 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
G 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
H nomination paper must of necessity depend upon
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 559

-
,;

--\
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]
the nature of the proceeding. A
(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.
6

(iii) The returning officer even, in view of the differences
in two sets of signatures, albeit slight, could have
rejected the appellant's nomination.
c
(iv) When the proposers appeared before him, the
returning officer was well within his right to adopt
the approach of relying on the statements made
" before him by them in preference to the affidavits
of the parties.
D
-t 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 E
., 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
i' proposers had in fact signed his nomination papers or my
.....
having believed the Respondent's case or the case of the F
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 G
!IC
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. H
560 SUPREME COURT REPORTS [2009] 9 S.C.R.

A 26. In our opinion, the following questions arise for our
consideration:
,.._
-'

(i) Whether the High Court was correct in confining
itself to the 'decision mqking process' on the part
of the Returning Officer while determining the
B 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?
c
(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
D
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
E 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
l'
A
decision making process by a Returning Officer but also the
-t
correctness of the said decision. Indisputably, there exists a ......;

F 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
G 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 3!-

vis-a-vis the decision making process would also come within
the purview of the power of judicial review.
H
- ~
--"
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.)

In Cho/an Roadways Ltd. v. G. Thirugnanasambandam
561

p-
[(2005) 3 SCC 241], this Court observed:

"34 .... It is now well settle~ 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. E
a wrong answer. In this case, furthermore, the misdirection
in law committed by the Industrial Tribunal was apparent
'i
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
c
germaneJor 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 probability" and applied the c
~ 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.) E
Reference in this connection may also be made to an
interesting articte by Paul P. Craig, Q.C. titled "Judicial
>
Review, Appeal and Factual Error" published in 2004
l Public Law, p. 788."
F
In S.N. Chandrashekar v. State of Kamataka [(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
,. -4 there is a duty to give reason) in~onsistent, unintelligible G
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
H
562 SUPREME COURT REPORTS [2009] 9 S.C.R.
._
~ 4

A by BOA 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
B 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.

[See also Indian Airlines Ltd. v. Prabha D. Kanan (2006)
c 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
D 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 dan be set
at naught. Improper rejection of nomination paper, in the instant
E 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 ,,
F further question is required to be gone into. The Tribunal had
no ott)er 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:
G ~
" ... 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
H nomination paper on. the ground that he is either not
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 563
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]
qualified, that is, under Sections 3 to 7 of the Act, or is A
disqualified under the provisions referred to ther'3in. 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(1)(c) and Section B
100(1)(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 1

that the improper rejection or acceptance must have
reference to Section 36(2), and that the rejection of a c
nomination paper of a candidate who is qualified to beI
chosen for election and who does not suffer from any of
the disqualifications mentioned in Section 36(2) would be
improper within Section 1OO(l)(c), and that, 'likewise,
acceptance of a nomination paper of a candidate who is
0
not qualified or who is disqualified will equally be improper
under Section 100(1)(d)(i)."

In Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC
604), this Court held:
E
" ... 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 F
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 cog~nt evidence bef~re ~he High Court G 1

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 H
564 SUPREME COURT REPORTS [2009] 9 S.C.R.
,.
.A 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
-B 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 ..
c 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."
D '
~-
[See also Sushi/ Kumar v. Rakesh Kumar (2003) 8 SCC
673]

In Pothula Rama Rao v. Pendyala Venkata Krishna Rao
E [(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.
F 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 ,.,_
G ~
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
H election petition should aver that the candidate was set up
~
UTTAMRAO SHIVDAS JANKAR v. RANJITSINH 565
- ~ VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]

by a recognised political party by issue of a valid B-Form A
and that his nomination was signed by an 9lector 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 B
,, cause of action."
t
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:
c
(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. D
-t
30. Indisputably, the said instructions are binding being
statutory in nature. [See Rakesh Kumarv. Sunil Kumar(1999)
2 sec 4891

31. When there exists a presumption in favour of a party, E
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 F
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 paper of Shri Jankar U.S. are forged and not
-I
genuine . G
...
(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 H
566 SUPREME COURT REPORTS [2009] 9 S.C.R. -r
..
;.
"'""'
A 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
8 before me and filed their affidavits. They were explained
and warned about the conseqblences of filing a wrong
"'
affidavit. As the disputed proposers have physically .r
appeared before me in person and filed affidavits saying
that the signatures in nomination paper are forged, there
c 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
D
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 l

proof. '
E f-
Based on the above discussion, I am of the opinion •
that the onus of proof now lies on the defendant. But, the ~·'

F
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
i
- '

- 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."
"
\
r
33. Before the returning officer; two sets of signatures were )'-
G
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 •
H I.-
~
\
UTTAMRAO SHIVDAS JANKAR v. RANJITSINH 567
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.)
~
of the Municipal Council. While, as indicated hereinbefore, he A
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 B
affidavits affirmed by the parties. Appellant not only affirmed an
affidavit denying and disputing the contents filed by the said
'f 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
c
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 D
.,- 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 ow
mind, an irrelevant question.
E
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, ~ut for which he can be given
" benefit of doubt being a possible subject matter of an election
F
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.

.-1 36. We must, however, notice another aspect of the matter: G
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 H
568 SUPREME COURT REPORTS [2009] 9 S.C.R.

in the matter of taking a decision on the objection as to whether
,
A
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
B 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.
c 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:

D "Our view is that mistake of fact in and of itself renders a
decision irrational or unreasonable .. ln 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
E 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 wHh
making. The taking into account of a mistaken fact can just
as easily be absorbed into a· traditional legal ground of :>I
review by referring to the taking into account of an irrelevant
F
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
G 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
H
UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 569
VIJAYSINH MOHITE-PATIL (S.B. SINHA, J.]
..
, .-\.

primary decision-maker taken on a mistaken belief that A

• there was no vidence 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 B
misapprehended a potentially decisive element of
the evidence before it discloses an error of law (as
t held in the E case, [2004) Q.B. 1044)

(ii) Proof of admission of a subsequently discovered
fact permits an appellate court to set aside a c
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, D
whether contested or not, has either to be
~
processed .(within the Immigration Rules in that
case) or simply lived with, as Lord Wijberforce
explained in the Ampthill Peerage-case [1977]
AC. 547; .. In any other case, finality prevails'."
E
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.
F
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 Cho/an Roadways Ltd. (supra)] G
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 such a trial, stricto sensu cannot be said to
be appellate in nature. Clearly, the High Court acted illegally in
H
570 SUPREME COURT REPORTS [2009] 9 S.C.R.
..
:>- '
A treating its power only as an appellate authority and not as an
original authority for it orily 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
B 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
.ct
based on the evidence produced by the parties and should
have tested the correctness of the affidavits. The opinion of the
c 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 t"""
a court of appellate jurisdiction and dismissed the petition
D
without C!llowing 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
E possible and at least within a period of six months from today.
Since it is an election petition and is required to be decided
within a period of six months, the High Court should make an .¥'
'-- . -
endeavour to complete the trial within a period of six months

F
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
G 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
H.-. of a statute could not have been taken away. [See M.P.
- •.
- ""'P-.
. -1:, UTIAMRAO SHIVDAS JANKAR v. RANJITSINH 571
VIJAYSINH MOHITE-PATIL [S.B. SINHA, J.]
.,;
' Gopa/akrishnan Nair and Another v. State of Kera/a and A
Others (2005) 11 SCC 45, para 53]
-----t 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 ·
B
Court for consideration of the matter afresh. The appeal is
i
allowed with the aforementioned directions. However, in the
facts and circumstances of the case, there shall be no order
'·
-\ as to costs.

D.G. Appeal allowed . c
•
•
' J

_...