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TMI Blog2009 (5) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 5. It is, however, not in dispute that in terms of the request made by the appellant the records of the office of Mangalwedha Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased 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. 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 beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Badshah Sutar and Sou. Jaymala Purnanad Mhetre. I say that accordingly all the said ten electors and one Ratan Govind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book ). 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome 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 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.) Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 difference in their signatures in the nomination paper and signatures contained in the attendance sheets of Mangalwedha Municipal Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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