2009 (5) TMI 934 - SC - Indian Laws

Presumption of correctness of the nomination paper - decision making process' - Determining the genuineness of signatures of the two proposers - Names of the proposers were forged - rejection of nomination - Instructions contained in the Handbook are binding - Returning Officer as '' Statutory authority'' - Nature of Jurisdiction of High Court in election petition ''Original or Appellate'' - HC dismissed the election petition opining that the returning officer had not committed any error in his decision making process in rejecting the nomination paper. HELD THAT - 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, 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. The Returning Officer is a statutory authority. While exercising his power u/s 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. 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. Indisputably, the instructions are binding being statutory in nature . Rakesh Kumar v. Sunil Kumar 2003 (10) TMI 634 - SUPREME COURT 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. 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. 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. 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. 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 - 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 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. 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 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. M.P. Gopalakrishnan Nair and Another v. State of Kerala and Others 2005 (4) TMI 568 - SUPREME COURT . Therefore, 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 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.

Summary

Issues Involved:
1. Jurisdiction of the Returning Officer to determine the genuineness of signatures on nomination papers.
2. Improper rejection of nomination papers.
3. Decision-making process of the Returning Officer.
4. High Court's limitation to the decision-making process.
5. Concession made by the appellant's counsel.

Issue-wise Detailed Analysis:

Jurisdiction of the Returning Officer to Determine Genuineness of Signatures
The primary question in this appeal is the extent of the jurisdiction of a Returning Officer under the Representation of the People Act, 1951, to determine whether the signatures of proposers on a nomination paper are genuine. The Returning Officer rejected the appellant's nomination on the grounds that the signatures of proposer Nos. 7 and 8 were forged. This decision was based on affidavits from the proposers and a comparison of signatures from the Municipal Council records.

Improper Rejection of Nomination Papers
The appellant contended that the Returning Officer committed a manifest error of law by not considering the affidavits submitted by the appellant and his proposers, which attested to the genuineness of the signatures. The Supreme Court observed that the rejection of a nomination paper could be challenged not only on the decision-making process but also on the merits of the decision. The Court emphasized that improper rejection of a nomination paper could materially affect the election result, warranting the election to be set aside.

Decision-Making Process of the Returning Officer
The Supreme Court noted that the Returning Officer's decision-making process should align with the guidelines issued by the Election Commission of India, as stated in the "Handbook for Returning Officers." The Handbook mandates a presumption of validity for nomination papers and requires the Returning Officer to provide an opportunity for rebuttal. The Court found that the Returning Officer had shifted the onus of proof to the appellant, which was incorrect. The Returning Officer should have drawn a presumption in favor of the nomination paper's validity unless conclusively proven otherwise.

High Court's Limitation to the Decision-Making Process
The High Court confined its review to the decision-making process of the Returning Officer, treating the matter as if it were exercising appellate jurisdiction rather than original jurisdiction. The Supreme Court held this approach to be erroneous. The High Court should have examined the merits of the case, including the genuineness of the signatures, by allowing the parties to produce evidence and possibly involving a handwriting expert.

Concession Made by the Appellant's Counsel
The Supreme Court addressed the issue of a concession made by the appellant's counsel, which limited the scope of the election petition to the decision-making process of the Returning Officer. The Court ruled that a statutory right to file an election petition should not be denied based on a wrong concession made by counsel. The concession, which was confined to the absence of corrupt practices, could not take away the appellant's right to challenge the rejection of the nomination paper on its merits.

Conclusion
The Supreme Court set aside the High Court's judgment and remitted the matter for fresh consideration. The High Court was directed to treat the election petition as an original proceeding, allowing the parties to produce evidence and examining the veracity of the rival claims. The High Court was instructed to complete the trial within six months, if necessary, by holding day-to-day hearings. The appeal was allowed without any order as to costs.