Mohd. Yasin Shah vs Ali Akbar Khan on 14 April, 1976

           PETITIONER:
MOHD. YASIN SHAH

	Vs.

RESPONDENT:
ALI AKBAR KHAN

DATE OF JUDGMENT14/04/1976

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
GUPTA, A.C.

CITATION:
 1976 AIR 1866		  1976 SCR    1
 1977 SCC  (2)	23
 CITATOR INFO :
 R	    1978 SC 351	 (15)
 R	    1985 SC  89	 (13)


ACT:
     Jammu &  Kashmir Representation  of the  People Act, S.
47(2) (c)-Scope of



HEADNOTE:
     Section 47(2)  of the Jammu & Kashmir Representation of
the People  Act enacts	that  the  Returning  Officer  shall
examine	 the   nomination  papers   and	 shall	 decide	 all
objections which  may be  made to  any nomination  and	may,
either on  such objection  or in  his own motion, after such
summary enquiry,  if  any,  reject  any	 nomination  on	 the
ground, among others, that the signature of the candidate or
the proposer on the nomination paper is not genuine.
     For the  general election	to the	State  Assembly	 the
appellant and  the respondent  (petitioner) filed nomination
papers. The  nomination paper of the respondent was rejected
by the	Returning  Officer  on	the  ground  that  when	 his
nomination was	called neither	he nor	anyone on his behalf
was present.  After the	 words 'Hence  rejected' recorded on
the nomination	paper the  Returning Officer  had also added
that the  signature of	the proposer was not genuine. In the
election that ensued the appellant was declared elected. The
respondent in  his election petition alleged (i) that though
at the	time of	 scrutiny the Returning Officer was informed
by his proposer that the respondent had gone out to ease and
requested him  to wait	for a  while, the  Returning Officer
rejected the  nomination paper	and refused  to	 reopen	 the
matter	even   on  the	 respondent's  request	 immediately
thereafter and	(ii) that  the Returning  Officer  committed
forgery by subsequently adding certain words in the order of
rejection and  by over-writing the signature of the proposer
on the nomination paper.
     The High  Court held (i) that the Returning Officer was
not justified  in law  in rejecting  the nomination paper of
the respondent	on the ground that he was not present at the
time of scrutiny, and (ii) that the Returning Officer having
become functus	officio any subsequent observations which he
might have  made was  irrelevant and  since  the  nomination
paper was  illegally rejected  the election was void and was
liable to be set aside under s. 108(1)(c) of the Act.
     Allowing the appeal to this Court,
^
     HELD: The	judgment of the High Court is erroneous both
on fact	 and in law and is against the weight of evidence on
record and preponderance of probabilities. [27 D]
     (1) Although  the appellate  Court should	be  slow  to
disturb a  pure finding	 of fact  based on  appreciation  of
evidence by  the Trial	Court, it  is well  settled that the
sanctity  and	purity	of   electoral	processes   must  be
maintained. The	 election of a duly elected candidate cannot
be set	at naught  on the  basis of  interested on  partisan
evidence not backed by cogent circumstances or unimpeachable
documents. [6 H]
     Rahim Khan	 v. Khurshid  Ahmed &  Ors. [1975]  1 S.C.R.
643, 656  and D. Venkata Reddy v. R. Sultan & Ors. [1976], 3
S.C.R. 445, referred to.
     In the  instant case the approach of the High Court was
not correct.  It had  overlooked  many	essential  features.
Secondly the  High Court  had observed	that issue No. 1 was
wide enough to include the appellant's plea that even if the
order of  the Returning	 Officer in rejecting the nomination
paper on  the ground  of absence  of the  candidate  or	 his
proposer was wrong, it could
2
still be  supported on	the ground that the signature of the
proposer was  not genuine.  Yet it  had not  determined this
aspect of the matter. [27 C]
     (2) The  order of the Returning Officer read as a whole
clearly shows  that the	 nomination paper  was rejected	 not
only on	 the ground  that the  candidate or his proposer was
not present but also on the ground that the signature of the
proposer on the nomination paper was not genuine. It is true
that the  Returning Officer  had not given any clear finding
on this	 point but  s. 47  of the Act did not require a well
reasoned decision.  All that  was  necessary  was  that	 the
Returning Officer  should apply	 his mind  and determine the
question in  a summary	manner. Even  if the ground on which
the nomination	paper had  been actually  rejected was not a
permissible ground,  if the  successful candidate could make
out a  case  that  the	nomination  paper  could  have	been
properly rejected  on one  of the grounds mentioned in s. 47
the rejection  would not  be improper and the election would
be upheld. [22 D-H]
     N. T.  Veluswami Thevar v. G. Raja Nainar & Ors. [1959]
Supp. 1 S.C.R. 623 followed.
     (i) In the instant case the fact that P.W. 4 had stated
in his	evidence that  when the Returning Officer called the
name of the petitioner no one on his behalf responded knocks
the bottom  out of  the respondent's story that the proposer
had been instructed to request the Returning Officer to wait
or that	 the  Returning	 Officer  had  not  acceded  to	 his
request. [8 D]
     (ii) On  a perusal	 of the Returning Officer's original
order it was clear that the entire order had been written in
the same  ink, with  the same  pen and	appears to have been
written in  one sitting.  There is  nothing to show that the
second part  of the order was added subsequently because the
strokes of  the letters,  the ink used and the general tenor
of the writing are the same throughout. [20 B]
     (iii)  As	 regards  that	 portion  of  the  Returning
Officer's  order   written  by	 him  after  writing  "Hence
rejected" his  explanation was that while he was writing his
order and had not completed the same, objection was taken by
the appellant  regarding the  genuineness of  the proposer's
signature and  since the  clerk had by then put the seal, he
had recorded  the appellant's  objection in  this space left
and completed  his order and signed above the seal. This was
corroborated by independent witnesses and there is no reason
why the	 Returning Officer  should have	 added a part of the
order subsequently. [20E, 21 A]
     (iv)  The	 Returning  Officer,  while  indicating	 the
appellant's  objection	regarding  the	genuineness  of	 the
signature of  the proposer  also observed  that it  was	 not
possible to  verify the	 signature of  the proposer  in	 the
absence of  the candidate  as well as the proposer. Thus the
absence of the candidate and the proposer had been used, not
for the	 purpose of  rejecting the nomination paper, but for
the purpose  of supporting  the conclusion  of the Returning
Officer that the signature was not genuine. [22 F]
     (v)  It   has  been   satisfactorily  proved  that	 the
signature of  the proposer  which contained  overwriting was
not his	 genuine signature  and, therefore,  the  nomination
paper had  been properly rejected and the election could not
be assailed  under s.  108(1)(c) of  the Act. From the facts
found it  was clear  that the  over-writing present  in	 the
signature at  the time	of scrutiny threw considerable doubt
on the	genuineness of	the proposer's	signature. The	fact
that the proposer and the respondent were absent at the time
of scrutiny  lends sufficient  support to the inference that
the signature of the proposer was not genuine. [26 C-D]



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1141 of
1974.

Appeal from the Judgment and Order dated 10th June 1974
of the Jammu & Kashmir High Court at Srinagar in Election
Petition No. 4 of 1972.

3

A. K. Sen, Altaf Ahmed and M. Veerappa, for the
appellant.

G. S. Pathak, O. C. Mathur, Shri Narain and J. B.
Dadachanji, for the Respondent.

The Judgment of the Court was delivered by
FAZAL ALI, J.-This is an election appeal against the
judgment of the High Court of Jammu & Kashmir dated June 10,
1974, by which the learned Judge allowed the election
petition filed before him by the respondent Ali Akbar Khan
and set aside the election of the returned candidate Mohd.
Yasin Shah who is the appellant before us. The returned
candidate will, for short, be referred to by us as ‘the
appellant’ and the respondent Ali Akbar Khan will be
referred to as ‘the petitioner’. It appears that during the
elections held in the year 1972 in the State of Jammu &
Kashmir both the appellant and the petitioner were the
candidates for election to the Karnah Assembly Constituency
of the District of Baramulla in the State of Jammu &
Kashmir. There were other candidates also some of whom had
withdrawn. One Mohd Yunis was the Congress candidate for
this constituency but he was defeated. The petitioner,
according to the appellant was merely a covering or a shadow
candidate for the Congress candidate Mohd Yunis. The
petitioner filed his nomination paper on February 7, 1972
and his proposer was P.W. 1 Ghulam Mohiuddin. According to
the petitioner the nomination paper was presented to the
Returning Officer R.W. 3 Abdul Rehman Mir on February 7,
1972 by the petitioner who was accompanied with his proposer
Ghulam Mohiuddin who had signed as the proposer. The
Returning Officer received the nomination paper and granted
a receipt for the same. A sum of Rs. 250/- being the
election deposit was also deposited and other formalities
were duly observed. February 9, 1972, was the last date
fixed for the scrutiny of the nomination papers of all the
candidates. According to the petitioner he reached the
office of the Returning Officer at about 10 A.M. on February
9, 1972, but as he was suffering from dysentery he went to
attend the call of nature and instructed his proposer P.W. 1
Ghulam Mohiuddin to take time on his behalf if the name of
the candidate was called out. The petitioner’s case before
the High Court was that the Returning Officer after
scrutinising the nomination papers accepted all of them but
rejected the nomination paper of the petitioner on the
ground of his absence in spite of the fact that P.W. 1
Ghulam Mohiuddin requested him to wait for the petitioner
who had gone to attend the call of nature. It was further
alleged that when the petitioner returned he beseeched the
Returning Officer not to reject his nomination paper but the
Returning Officer refused to reopen the matter as the
nomination paper of Mohd. Yunis the Congress candidate had
been accepted. The nomination paper of Mohd Yasin Shah the
appellant was also accepted. Thereafter the poll was held on
March 8, 1972 and the results were declared on March 12,
1972. The appellant Mohd Yasin Shah was declared elected,
while Mohd Yunis was defeated. After the results were
declared the petitioner applied for a certified copy of the
order of rejection of his nomination paper on April 1, 1972,
and according to him the Returning Officer tried to avoid
giving the copy of the said order which was ultimately given
4
to him on April 3, 1972, April 2, being a Sunday. The sheet-
anchor of the case of the petitioner was that the Returning
Officer was particularly biased against him and he rejected
the nomination paper in order to support the returned
candidate in whom he was interested. The petitioner further
pleaded that the only ground on which the nomination paper
was rejected was that the petitioner did not appear when the
Returning Officer called out his name at the time of the
scrutiny of his nomination paper. The petitioner further
averred that under the law the Returning Officer could not
have rejected his nomination paper on the ground of his
absence even if it was so. Not content with these
allegations the petitioner went to the extent of making a
serious and irresponsible allegation against the Returning
Officer by averring that the Returning Officer had committed
forgery by subsequently adding certain words in the order of
rejection and overwriting the signature of the proposer
Ghulam Mohiuddin on the nomination paper. Thus, in short,
according to the petitioner as his nomination paper was
improperly rejected by the Returning Officer, the election
of the appellant was void on that ground alone.

The petitioner filed the present election petition with
the allegations aforesaid on April 12, 1972. It was alleged
that at the time when P.W. 1 Ghulam Mohiuddin was examined
as a witness there was some overwriting on the signature of
Ghulam Mohiuddin the proposer of the petitioner on the
nomination form. Accordingly the petitioner made an
application to the Court for permission to file an amended
petition by incorporating the fact that the overwriting was
brought into existence after the scrutiny of the nomination
papers was over and behind the back of the petitioner. The
learned Judge, after hearing the parties, ultimately allowed
the application and accordingly an amended petition was
filed by the petitioner where the allegations regarding
interpolation etc. were made. The appellant was also given
an opportunity to file his additional written statement.

The petition was stoutly resisted by the appellant who
denied, inter alia, all the allegations made by the
petitioner and contended that there was absolutely no
overwriting on the signature of Ghulam Mohiuddin nor was any
forgery committed by the Returning Officer. It was further
averred that as neither the petitioner nor his proposer was
present when the scrutiny of the nomination paper of the
petitioner was taken up by the Returning Officer and as the
appellant himself raised the objection that the signature of
Ghulam Mohiuddin on the nomination paper was not genuine the
Returning Officer having applied his mind upheld the
objection and rejected the nomination paper on the ground
that the signature of Ghulam Mohiuddin was not genuine as it
could not be verified. The appellant also vehemently denied
the allegation that the Returning Officer was in any way
biased or prejudiced against the petitioner. On the other
hand it was averred that the Returing Officer was an
independent officer and since the petitioner was a candidate
of the Congress if the Returning Officer could have any
leaning at all it would be towards the petitioner rather
than the appellant who was an independent candidate opposing
the Congress party. The learned Judge, after taking the
evidence of the
5
parties, came to the conclusion that from the order of the
Returning Officer it would appear that the nomination paper
of the petitioner was rejected mainly on the ground of his
absence which was not a lawful ground on which the
nomination paper could have been rejected under s. 47(2) of
the Jammu & Kashmir Representation of the People Act. On the
question of the overwriting the learned Judge held that
there was no doubt that there was overwriting on the
signature of P.W. 1 Ghulam Mohiuddin on the nomination form
of the petitioner and perhaps the overwriting was made some
time after the scrutiny. But the learned Judge refrained
from giving any finding as to who made the interpolation and
in what circumstances. As regards the allegation that the
Returning Officer had committed forgery the learned Judge
does not appear to have accepted the same or given any clear
finding on this point, and he steered clear of this fact by
observing that as the first part of the order of the
Returning Officer rejecting the nomination paper was based
on the ground of the absence of the petitioner, the
Returning Officer became functus offcio and any subsequent
observation which he may have made was irrelevant. The
learned Judge further seems to have held that the petitioner
was not present when the scrutiny of his nomination paper
was taken up and the Returning Officer was not justified in
law in rejecting his nomination paper on that ground alone.
On these findings the learned Judge held that as the
nomination paper of the petitioner was illegally rejected
the election of the appellant was void and was liable to be
set aside under s. 108(1)(c) of the Jammu and Kashmir
Representation of the People Act-hereinafter referred to as
`the Act’, as amended upto date.

In support of the appeal Mr. Altaf Ahmed learned
counsel for the appellant who was followed by Mr. Asoke Sen
submitted that the learned Judge has misconstrued the order
passed by the Returning Officer rejecting the nomination
paper of the petitioner and that the judgment of the High
Court is against the weight of the evidence on the record.
It was also argued that the learned Judge completely
overlooked some of the essential features appearing in the
case which completely demolished the petitioner’s case. Mr.
G. S. Pathak appearing for the petitioner, however,
supported the judgment of the High Court and contended that
the order of the Returning Officer was mainly passed on the
ground of the absence of the petitioner which was not
justified by the provisions of s. 47(2)(c) of the Act. He
also submitted that a bare perusal of the order of the
Returning Officer would clearly show that the second part of
the order regarding the genuineness of the signature of the
proposer Ghulam Mohiuddin appears to have been inserted
subsequently. Lastly, it was submitted that although this
Court could reappraise the evidence for itself it should not
interfere with the judgment of the High Court on facts
unless the High Court had committed an error in its
appreciation of evidence or overlooked any material fact. It
was further argued that this Court should keep in mind the
slowness of the appellate court to disturb a pure finding of
fact based on appreciation of evidence by the Trial Court
which had the initial advantage of watching the demeanour of
the witnesses examined by it. There can be no dispute with
the propositions adumbrated by Mr. Pathak, but we would like
6
to mention that it is well settled that the sanctity and
purity of electoral process in the country must be
maintained. The election of a duly returned candidate cannot
be set at naught on the basis of interested or partisan
evidence which is not backed by cogent circumstances or
unimpeachable documents. In Rahim Khan v. Khurshid Ahmed &
Ors.(1) this Court observed as follows :

“We must emphasize the danger of believing at its
face value oral evidence in an election case without
the backing of sure circumstances or indubitable
documents. x x x There is no x-ray whereby the
dishonesty of the story can be established and, if the
Court were guillible enough to gulp such oral versions
and invalidate elections, a new menace to our electoral
system would have been invented through the judicial
apparatus. We regard it as extremely unsafe, in the
present climate of kilkennycat election competitions
and partisan witnesses wearing robes of veracity, to
upturn a hard won electoral victory merely because lip
service to a corrupt practice has been rendered by some
sanctimonious witness. The Court must look for serious
assurance, unlying circumstances or unimpeachable
documents to uphold grave charges of corrupt practices
which might not merely cancel the election result, but
extinguish many a man’s public life.”

In D. Venkata Reddy v. R. Sultan & Ors.(2) this Court,
in which one of us (Fazal Ali, J.) was also a party,
reiterated the principles in the following words :

“In a democracy such as ours, the purity and
sanctity of elections, the sacrosanct and sacred nature
of the electoral process must be preserved and
maintained. The valuable verdict of the people at the
polls must be given due respect and candour and should
not be disregarded or set at naught on vague,
indefinite, frivolous or fanciful allegations or on
evidence which is of a shaky or prevaricating
character. It is well settled that the onus lies
heavily on the election petitioner to make out a strong
case for setting aside an election. In our country
election is a fairly costly and expensive venture and
the Representation of the People Act has provided
sufficient safeguards to make the elections fair and
free. In these circumstances, therefore, election
results cannot be lightly brushed aside in election
disputes.”

We would now proceed to discuss the various aspects of
the case in the light of the principles enunicated by this
Court in the aforesaid cases. To begin with, we might
mention that most of the facts on which evidence appears to
have been led by the petitioner were not pleaded in the
election petition at all. For instance, the definite case
made out by the petitioner in his evidence was that at the
time of the scrutiny of the nomination papers when the name
of the petitioner was called out P.W. 1 Ghulam Mohiuddin the
proposer of the
7
petitioner was present who drew the attention of the
Returning officer to the fact that the petitioner had gone
to attend the call of nature and that he should wait for him
but the Returning Officer refused to wait and rejected the
nomination paper on the ground of the absence of the
petitioner. It was further sought to be proved in the
evidence that on return the petitioner tried to persuade the
Returning Officer to reopen the matter and in fact filed an
application before him for recalling the order of rejection
of the nomination paper but the Returning Officer was so
much prejudiced against him that he tore of the petition
submitted before him by the petitioner. It will be noticed
that neither in the original petition nor in the amended one
there is any mention of the fact that P.W. 1 Ghulam
Mohiuddin drew attention of the Returning Officer and asked
him to wait, nor is there any mention of the fact that the
petitioner on his return submitted a petition to the
Returning Officer which was torn into pieces by the
Returning Officer. We shall show that these facts are also
not proved even by some of the witnesses examined by the
petitioner. It may be pertinent to note here that while in
paragraph 14 it was mentioned that when the nomination form
of the petitioner was taken up it was reported to the
Returning Officer that the petitioner had gone to attend the
call of nature but significantly enough it is not mentioned
therein as to who was the person who had drawn the attention
of the Returning Officer. It seems to us that even at the
time of filing his amended petition which was filed after
the trial had started the petitioner was not certain of his
ease and had not yet decided to allot this part to his
proposer Ghulam Mohiuddin. P.Ws. 1, 2 and 6 have no doubt
asserted in their evidence that P.W. 1 Ghulam Mohiuddin
requested the Returning Officer to wait for the petitioner
who had gone to attend the call of nature. P.W. 1 Ghulam
Mohiuddin who was the proposer of the petitioner and
therefore the most interested witness in this case has no
doubt testified to the fact that he had drawn the attention
of the Returning Officer when the nomination paper of the
petitioner was taken up for scrutiny but the Returning
Officer did not heed his request and rejected the nomination
paper. This witness also stated that petitioner himself told
the Returning Officer that he was going to attend the call
of nature and that he should wait for him. But the witness
does not appear to be sure of his statement as he
immediately volunteered to state that as there was lot of
noise at that time evidently the Returning Officer did not
hear him. The petitioner also says the same thing.

P.W. 2 Qazi Mohammad Abdullah also tries to support the
fact that at the time of scrutiny the petitioner was not
present and Ghulam Mohiuddin P.W. 1 informed the Returning
Officer that the petitioner had gone to attend the call of
nature. This witness, however, did not support the
allegation of the petitioner that a petition was submitted
by him before the Returning Officer which was torn by him.
The witness stated thus:

“The petitioner did not submit any petition before
the Returning Officer in my presence on the day of
scrutiny. There was no such incident in my presence
such as the filing of a petition before the Returning
Officer and the tearing off that petition by him.”

8

P.W. 6 the petitioner himself no doubt supported his
case that he had gone to attend the call of nature when the
scrutiny of his nomination paper was taken up and had
instructed P.W. 1 Ghulam Mohiuddin to remain present and to
ask the Returning Officer to wait. Thus this fact is not
proved by any independent witness.

On the other hand the fact that Ghulam Mohiuddin did
not respond to the call even though he was instructed, as
the petitioner would have us believe, is admitted even by a
witness of the petitioner, namely, P.W. 4 Ghulam Qadir Mir,
who deposed as follows:

“At the time when the scrutiny of the nomination
paper of Ali Akbar Khan was taken up, he himself was
not present there. His proposer Ghulam Mohi-ul-Din was
present there. The name of Ali Akbar Khan was called
out but no one responded and so the Returning Officer
wrote down that the candidate was absent and his
nomination paper was being rejected. In my presence
nothing else happened there.”

It would therefore appear from the evidence of this witness
that even though Ghulam Mohiuddin was present he did not at
all respond when the name of the petitioner was called out.
This knocks the bottom out of the story put forward by the
petitioner that Ghulam Mohiuddin had been instructed to ask
the Returning Officer to wait or that Ghulam Mohiuddin stood
up and requested the Returning Officer to wait for the
petitioner. Thus the entire story given out by P.Ws. 1, 2
and 6 on this point is falsified by one of the witnesses
examined by the petitioner himself.

There is yet another circumstance which throws
considerable doubt on this part of the story of the
petitioner. P.W. 5 Girdhari Lal counsel engaged by the
petitioner at the time of scrutiny according to whose
evidence Ghulam Mohiuddin had signed the nomination form in
his presence, was also present at the time when the scrutiny
of the nomination paper of the petitioner was taken up and
in spite of this fact when the name of the petitioner was
called out and according to the witness the Returning
Officer announced that since he was absent his nomination
paper was rejected this witness did not enter a protest on
behalf of his client, the petitioner, that the Returning
Officer could not have rejected the nomination paper on the
ground of the absence of the petitioner. This somewhat
unusual conduct on the part of the witness who is a lawyer
of some experience clearly shows that neither Ghulam
Mohiuddin was present nor the petitioner was present and it
is therefore extremely doubtful if this witness was also
present at the time when the scrutiny of the nomination
paper of the petitioner was taken up by the Returning
Officer.

As against this contradictory and discrepant evidence
there is consistent evidence of the appellant’s witnesses
R.Ws. 1, 2, 3 and 4 to the effect that neither the
petitioner nor his proposer Ghulam Mohiuddin was present
when the scrutiny of the nomination paper of the petitioner
was taken up. R.W. 3 is the Returning Officer himself and he
appears to us to be an absolutely independent witness being
a high Government officer of sufficient experience and there
is abso-

9

lutely no reason for him to depose falsely against the
petitioner. The Returning officer stated thus:

“When in spite of repeated calls neither the
petitioner nor his proposer turned up before me, then I
began to write out the order on the back of the
nomination form.”

R.W. 1 Mohammad Anwar Shah Masoodi also appears to be
an independent witness who was an active Congress worker but
he did not see eye to eye with the Congress on the
candidature of Mohd Yunis for the constituency in question.
There is nothing to show that this witness was in any way
interested in the appellant. This witness also categorically
stated that neither the petitioner nor the proposer of the
petitioner turned up at the time when the name of the
petitioner was called out.

R.W. 2 Ghulam Hassan Malik who was also one of the
candidates from the Karnah Assembly Constituency and who is
a lawyer also corroborated the evidence of the Returning
Officer and of R.Ws. 1 & 3 that no one stood up on behalf of
the petitioner when the name of the petitioner was called
out and that the proposer of the petitioner was also not
present at that time in the room. This witness has further
stated that no one brought it to the notice of the Returning
Officer that the petitioner was ill or that he would be
coming soon. The evidence of the witnesses examined by the
appellant, therefore, is fully corroborated by the evidence
of P.W. 4 Gulam Qadir Mir a witness of the petitioner as
shown above.

Furthermore we find it difficult to believe why the
Returning Officer who was an independent person and a
Government Officer would refuse to wait for the petitioner
if his attention was really drawn to the fact that the
petitioner was ill and had gone to attend the call of nature
by Ghulam Mohiuddin or any body on behalf of the petitioner.
This fact, therefore, clearly shows that the case of the
appellant that neither the petitioner nor his proposer was
present at the time when the scrutiny of the nomination
paper of the petitioner was taken up is true. Even the
learned Judge is also inclined to accept this part of the
case of the appellant. On a consideration of the evidence of
the parties referred to above we are clearly of the opinion
that the petitioner has failed to prove that at the time
when the scrutiny of his nomination paper was taken up by
the Returning Officer either the petitioner or his proposer
Ghulam Mohiuddin was present and made any request to the
Returning Officer to wait which was not acceded to by the
Returning Officer.

Apart from the interested testimony of P.W. 1, 3 and 6
that the petitioner had submitted a petition to the
Returning Officer which was torn out by him there is no
reliable evidence to prove this fact. To begin with, this
fact is not at all mentioned even in the election petition
filed by the petitioner even after amendment. The petitioner
admits in his statement that he did not mention this fact
while instructing his lawyer. Furthermore, if indeed the
Returning Officer actually behaved in the manner as the
petitioner would have us believe, then it was a very serious
matter and the petitioner is not likely to have
10
slept over the matter but would have filed a regular
complaint against the Returning Officer to his higher
superiors. In fact when there was a delay of only one day in
the giving of the copy of the rejection order the petitioner
made a great fuss and furore over this petty lapse. Is it
possible to believe that the petitioner would sit quiet if
the Returning Officer had behaved in such a manner with him
by tearing off the petition which was submitted to the
Returning Officer ? Apart from that P.W. 3 Mohammad Maqbool
Mir at p. 87 of the Paper Book has clearly admitted that in
his presence no petition was filed by Ali Akbar Khan before
the Returning Officer. Even P.W. 5 who was the lawyer of the
petitioner stated that he cannot say that Ali Akbar Khan
presented any petition before the Returning Officer which
the latter tore off. P.W. 4 also says that he did not see
the petitioner Ali Akbar Khan or his proposer presenting any
application to the Returning Officer which the latter tore
off. Thus the mischievous allegation made by the petitioner
against the Returning Officer is completely disproved not
only from his own conduct but also by the evidence of his
own witnesses as discussed above.

Finally even though a very serious allegation was made
against the Returning Officer personally, yet, when he was
deposing as a witness for the appellant, no suggestion was
put to him that any petition was presented to him which he
tore off instead of taking any action thereon. Further while
P.W. 1 Ghulam Mohiuddin categorically stated in his evidence
that the petition which was submitted to the Returning
Officer was scribed by Abdul Ahad the petition writer, yet
the petitioner made no attempt to examine Abdul Ahad in
order to prove this part of his case. In these
circumstances, therefore, we disbelieve this part of the
case of the petitioner that he had filed any petition to the
Returning Officer for reopening the order rejecting his
nomination paper. It seems to us that this allegation was a
made up story and appears to have been invented in order to
make out a case that the Returning Officer was biased
against the petitioner and that is why the nomination paper
of the petitioner was illegally rejected by him. The
petitioner has however miserably failed to prove this part
of the case. If this story is found to be false, it would
also demonstrate the falsity of the main allegation made by
the petitioner regarding the overwriting on the signature of
Ghulam Mohiuddin as also interpolation in the order passed
by the Returning Officer rejecting the nomination paper of
the petitioner.

This brings us now to the question as to the nature of
the order passed by the Returning Officer which is Ext. RW
3/3. Before, however, taking up this matter it may be
necessary to dispose of the case of the petitioner regarding
the overwriting alleged to have been made subsequently on
the signature of Ghulam Mohiuddin on the nomination paper
Ext. PW 5/2. The definite case of the petitioner was that at
the time when the nomination paper was filed before the
Returning Officer R.W. 3, or even at the time of the
scrutiny on February 9, 1972, there was no overwriting at
all which appears to have been made subsequently. On the
other hand the case of the appellant is that the overwriting
was already there from before and in fact it was
deliberately made so as to afford a ground to the peti-

11

tioner to set aside the election of the appellant in case he
was duly elected. It was suggested that this lacuna was
deliberately left so as to invite the Returning Officer to
reject the nomination paper and then use this infirmity to
upset the election of the appellant. In support of this case
the appellant relied upon the following circumstances:

(i) that the petitioner was a mere covering or shadow
candidate of the Congress and was not at all interested in
contesting the election;

(ii) that once the nomination paper of Mohd Yunis who
was the official candidate of the Congress was accepted the
petitioner was not at all interested in pursuing his
election and it was for this reason that when the scrutiny
of the nomination paper of the petitioner was taken up
neither the petitioner nor his proposer was present and an
imaginary story was invented that the petitioner was ill and
had gone to attend the call of nature and Ghulam Mohiuddin
the proposer asked the Returning Officer to wait but he
rejected the nomination paper of the petitioner; and

(iii) that P.W. 1 Ghulam Mohiuddin the proposer of the
petitioner has in an unguarded moment admitted in his
statement that on the very day when the nomination paper was
rejected i.e. on February 9, 1972, the petitioner informed
the witness that he will file a case in the Court against
Mohd Yasin the appellant. P.W. 1 deposed thus:

“The petitioner had only then informed me after
the rejection i.e. on 9-2-1972 that he will now file a
case in the Court against Mohammad Yasin respondent.”

This statement clearly lets the cat out of the bag and shows
that the petitioner’s intention really was to prepare a
ground for setting aside the election of the appellant if he
was duly elected. Unless this was so, it is not
understandable why the petitioner should have made such a
statement to P.W. 1 on the date when the nomination paper
was rejected and when he obviously did not know whether or
not the appellant would succeed in the election.

We shall now deal with each of these circumstances
relied upon by the appellant in support of his case that the
entire story of overwriting etc. was a figment of the
imagination of the petitioner’s mind and perhaps the whole
thing was stage-managed so as to invite the Returning
Officer to reject the nomination paper of the petitioner.

The appellant has clearly stated in his evidence that
the petitioner was merely a covering candidate of the
Congress and was put up only as a shield to take the place
of Mohd Yunis if the nomination paper of Mohd Yunis was
rejected. R.W. 1 who, as we have already pointed out, was an
independent witness and was an active worker of the Congress
at one time has also categorically asserted that the
petitioner was a covering candidate of the Congress. The
witness stated thus:

“The petitioner was a candidate set up by the
Congress that is to say he was a covering candidate.
The congress had given the mandate to Kh. Mohd Yunis
but the latter
12
had set up the petitioner as a candidate by way of
precaution.”

The evidence of this witness appears to have a ring of truth
in it. He has clearly stated that he did not agree with the
Congress Organization when a mandate was given to Mohd Yunis
to stand from the Assembly constituency of Karnan, because
in his opinion Mohd Yunis had lost his popularity and there
was little chance of his being elected. The result of the
election demonstrated that the apprehension of this witness
was undoubtedly correct, because while the appellant was
duly returned, Mohd Yunis was defeated. In these
circumstances we do not see any reason to distrust the
evidence of this witness on this point.

R.W. 2 Gulam Hassan Malik who was a lawyer and also a
candidate has also stated that the petitioner Ali Akbar Khan
was a covering candidate of Mohd Yunis.

The appellant also in his evidence categorically
asserted that the petitioner was a covering candidate of the
Congress for Mohd. Yunis. It is true that the petitioner has
not admitted this fact, but the somewhat contradictory stand
taken by him on this point clearly shows that he was
undoubtedly a covering candidate. The witness (petitioner)
said that if his nomination paper had been accepted he would
not have contested as an independent candidate but he had
been assured that if the nomination paper of Mohd. Yunis as
also of the petitioner were accepted then the Congress was
to decide as to who would contest the election. At the same
time the petitioner admitted that the mandate of the
Congress was given to Mohd Yunis prior to the filing up of
the nomination forms. Indeed if the mandate was given by the
Congress party to Mohd. Yunis alone, the petitioner was
bound to be a dummy candidate only. Another intrinsic
circumstance that supports this fact is that while Mohd
Yunis and other candidates filed a number of nomination
papers so that if one of them was rejected on the ground of
any defect or infirmity the remaining nomination forms may
be accepted and the candidature of the candidates would not
run into difficulty, the petitioner admittedly filed only
one nomination paper and did not think it necessary to file
another nomination paper. These facts taken together with
the subsequent conduct of the petitioner and his proposer
Ghulam Mohiuddin in not being present at the time of the
scrutiny of the nomination paper as found by us lends
sufficient support to the case of the appellant that the
petitioner was merely a dummy candidate.

As regards the other circumstances that after the
nomination paper of Mohd. Yunis was accepted, the petitioner
was not at all interested in fighting the elections, we find
that there is overwhelming evidence to support this
inference. We have already pointed out that from the
evidence led by the parties it has been established that
neither the petitioner nor his proposer were present at the
time when the scrutiny of nomination paper was taken up by
the Returning Officer on February 9, 1972. In these
circumstances, therefore. it follows as a logical corollary
that the story of the petitioner that a request made to the
Returning Officer by Ghulam Mohiuddin to wait for the
petitioner or
13
that any petition was filed before the Returning Officer
which was torn by him is a complete myth and has been
invented to give credence to the made up story bolstered up
by the petitioner. Another intrinsic circumstance which
shows that the petitioner was not at all interested in
pursuing his election is the fact that the two important
persons who were very much interested in his nomination
paper not being rejected did not lodge any protest before
the Returning Officer or took the trouble of drawing the
attention of the Returning Officer that the nomination paper
could not be rejected due to the absence of the petitioner.
One of these persons was no one else but Girdhari Lal the
counsel of the petitioner himself. According to his evidence
he knew full well that P.W. 1 Ghulam Mohiuddin had signed
the nomination paper in his presence and yet when the
nomination paper was taken up for scrutiny he did not care
to tell the Returning Officer that as the proposer had
signed in his presence there was no question of rejecting
his nomination paper. Similarly Mohd. Yunis who was the
official candidate of the Congress also remained completely
silent and did not draw the attention of the Returning
Officer when the nomination paper of the petitioner who was
also a Congress candidate was rejected. All these facts,
therefore, lead to the inescapable conclusion that the
petitioner was not at all interested in contesting the
election and by his deliberate conduct he created a
situation in which the nomination paper could be rejected so
that if necessary he could use this lacuna to upset the
election of the appellant.

As regards the last circumstance, namely, that the
whole thing appears to have been stage-managed by Mohd.
Yunis in order to furnish a ground for setting aside the
election of the appellant in case he was elected appears to
be probable, particularly in view of the admission made by
P.W. 1 Ghulam Mohiuddin to which a reference has already
been made. The best person to explain these facts would have
been Mohd. Yunis himself and the petitioner has not examined
him as a witness at all. It appears from the order-sheet
that Mohd. Yunis was summoned and he was present but the
petitioner did not choose to examine him. It seems to us
that Mohd. Yunis being fully aware that he was the architect
of the whole drama did not want to face the Court.

Apart from this circumstance, the evidence led by the
petitioner on the question that there was some overwriting
in the signature of his proposer P.W. 1 Ghulam Mohiuddin on
the nomination form subsequent to the date of the scrutiny
is far from convincing.

In view of our finding that neither the petitioner P.W.
6 nor Ghulam Mohiuddin P.W. 1 were present on February 9,
1972 when the nomination paper of the petitioner was taken
up for scrutiny by the Returning Officer, these two
witnesses are not at all competent to depose as to whether
or not on that date there was any overwriting in the
signature of P.W. 1. In these circumstances, therefore, the
evidence of P.W. 1 and 6 will have to be excluded on this
point. Even so it will be interesting to note that the
petitioner P.W. 6 does not say that there was any
overwriting on the signature of P.W. 1 Ghulam Mohiuddin on
the nomination form but he states that on a perusal of the
nomination paper it appears that some ink was spread over
his
14
signature. An examination of the signature of Ghulam
Mohiuddin would reveal to the naked eye that there is no
question of the spreading of any ink over the signature but
what has been done is that there is clear overwriting on the
signature.

P.W. 2 Qazi Mohammad Abdullah appears to be a close
acquaintance of the petitioner and had helped him in
engaging the services of Girdhari Lal for the purpose of
filling up the nomination paper which was also done at his
own house. This witness also states that Ghulam Mohiuddin
had affixed his signature in his presence with the fountain-
pen of the petitioner. He further asserts that on the date
of his deposition he found that there was an overwriting
over the signature of Ghulam Mohiuddin. This witness was one
of the proposers of Mohd. Yunis who had set up the
petitioner as his dummy candidate as held by us. In these
circumstances, therefore, this witness was interested and
has tried to help the petitioner. Moreover he does not say
that on February 9, 1972 when the scrutiny of the nomination
paper of the petitioner was taken up by the Returning
Officer he had an opportunity to inspect the nomination
paper in order to find out whether there was any overwriting
on the signature. His evidence, therefore, does not exclude
the possibility of the over writing having been made after
Ghulam Mohiuddin had signed the nomination paper at the
residence of the witness and before the nomination paper was
filed or its scrutiny taken up. Furthermore, the witness
admits that he is also a Congress worker and knew the
petitioner for the last four years. For these reasons,
therefore, in the first place the evidence of this witness
is interested, and secondly it does not appear to be of any
assistance to the petitioner.

The other witness examined on this point is P.W. 3
Mohd. Maqbool Mir. A perusal of the evidence of this witness
convinces us that he is an utterly unreliable witness.
Although a lawyer of sufficient experience the witness seems
to have scant regard for the purity of the legal profession
or the norms of professional ethics. He was a counsel of the
appellant and had been engaged by him at the time of filing
of the nomination paper and its scrutiny. He was present on
February 9, 1972 before the Returning Officer on behalf of
the appellant. He further admits that he had also agreed to
become the agent of other contesting candidates. The order
Ext. RW 3/3 clearly mentions that the witness did raise
objection on behalf of the appellant regarding the
genuineness of the signature of P.W. 1 Ghulam Mohiuddin and
yet the witness who appears to have transferred his loyalty
to the petitioner deposes with impunity that he did not
raise any objection regarding the genuineness of the
signature of Ghulam Mohiuddin and that the overwriting did
not exist at the time of the scrutiny. The dramatic manner
in which he has made his appearance as a witness for the
petitioner speaks volumes against the credibility of his
testimony. He admits that he had never appeared before the
High Court and he happened to come to Srinagar on November
13, 1972 to make some purchases for his uncle who was
proceeding on a pilgrimage to Mecca. As he happened to be in
the Court premises his name was called out and he was
directed to appear as a witness without receiving any
summons from the Court. The
15
appellant has categorically stated in his evidence that he
had informed this witness that he might have to be examined
on his behalf in the trial before the High Court and yet the
witness knowing full well that he was the retained counsel
of the appellant readily agreed to depose for the
petitioner. Finally the witness admits that he deals with
about 100 cases per month and yet he does not pay any
income-tax. In view of these circumstances, therefore, we
are not in a position to place any reliance on the evidence
of this witness. In fact the learned Judge was also not
inclined to place implicit reliance on the testimony of this
witness and in this connection the learned Judge observed as
follows:

“There have been great comments made with regard
to the veracity and dependability of the statement of
this witness and if the matter had rested only on the
testimony of this witness, then it could have been said
that some how or other this witness had changed sides
and has come to depose but his testimony and the
statements made by him have to be judged in the light
of the other evidence and the facts and circumstances
of the case.”

We are now left with the evidence of P.W. 5 Girdhari
Lal. This witness was admittedly counsel for the petitioner
and was therefore thoroughly interested in supporting the
case of the petitioner. The witness has also stated that the
nomination paper bore the signature of Ghulam Mohiuddin but
at the time when he was deposing there was some overwriting
in his signature. The witness says that he was present at
the time of the scrutiny and had inspected the nomination
form and found that the signature of Ghulam Mohiuddin did
not contain any overwriting at that time. He, however,
admits that the petitioner Ali Akbar Khan was not present
when the scrutiny was taken up and his nomination paper was
rejected by the Returning Officer. Indeed if this was so, as
a retained counsel for the petitioner, it was his duty to
point out to the Returning officer that under s. 47 of the
Act the Returning officer was not legally competent to
reject the nomination paper merely on the ground of the
absence of the petitioner or his proposer. He, however,
remained absolutely silent. This clearly shows that either
he was aware that the overwriting on the signature of Ghulam
Mohiuddin was already there at the time of the scrutiny or
that he did not know about it, nor did he care to examine
the nomination paper at that time. The witness admitted at
p. 106 of the Paper Book that the rejection of the
nomination paper on the ground of the absence of the
candidate or his proposer was in his opinion improper under
s. 47 of the Act. In spite of this fact it is not at all
understandable why he did not draw the attention of the
Returning officer to this fact, if the Returning officer had
rejected the nomination paper merely on the ground of the
absence of the petitioner or his proposer. In these
circumstances, therefore, there appears to have been a
method in his silence which indicate that he was a privy to
the whole show put up by the petitioner and wanted that
somehow or the other the nomination paper of the petitioner
may be improperly rejected so as to afford a ground to his
client to
16
upset the election of the successful candidate. In these
circumstances, therefore, we are not in a position to place
any reliance on the evidence of this witness.

This is all the evidence that the petitioner has led in
support of his case that the overwriting on the signature of
Ghulam Mohiuddin was made subsequent to the scrutiny of the
nomination form.

As against this there is clear and categorical evidence
of the appellant Mohd. Yasin Shah R.W. 4 who stated thus:

“After examination of the nomination form, I
raised objection that the signature of the proposer
appeared to be doubtful and I also said that probably
it is not his signature. No one at that time appeared
to rebut this objection of mine and to assert that it
was the signature of the proposer.”

His evidence was fully corroborated by the Returning officer
Abdul Rehman Mir, R.W. 3, who has clearly stated thus:

“The nomination form already marked Ext. P.W. 5/2
was presented before me in the same condition in which
it is at present. I was also the Returning officer of
Lolab, Kupwara assembly constituencies besides the
Karnah assembly constituency.”

We have already pointed out that R.W. 3 is an independent
witness being a high Government officer. The allegations
made by the petitioner against him have not at all been
substantiated and appear to be totally unfounded as found by
us. There is neither any suggestion nor any evidence to show
that he was in any way interested in the appellant or biased
against the petitioner. On the other hand, R.W. 3 being an
independent Government officer would naturally have no
leanings towards either party. Furthermore, the most
important question to be determined was, if any overwriting
was made, who would be interested in making the same ? It is
obvious that the Returning officer had absolutely no motive
to make any overwriting on the signature of P.W. 1. The
Returning officer has also admitted in his statement that
after the scrutiny the record was deposited by him
personally with the District Treasury Officer, Baramulla, as
per the directions of the Deputy Commissioner, Baramulla,
who was also the District Eelection officer. In these
circumstances, therefore, why should the Returning officer
have taken the grave risk of tampering with the record after
the same was deposited with the District Treasury officer on
the directions of the Deputy Commissioner, Baramulla, and
why should he at all do it ? Perhaps it was for this reason
that the learned Judge did not like to go into this question
at all and refrained from making any observation on this
aspect of the matter but casually observed that the
overwriting might have been brought into existence after the
scrutiny. We think that there is absolutely no evidence to
support this fact.

Finally there is another intrinsic circumstance which
shows that the overwriting must have been there when the
nomination paper
17
was filed or was taken up for scrutiny by the Returning
Officer. The order of the Returning officer Ext. R.W. 3/3
clearly shows that an express objection was taken by
Mohammad Maqbool Mir on behalf of Mohammad Yasin that the
signature of the proposer was not genuine. If the
overwriting would not have been there, there was absolutely
no occasion for the appellant to have raised any such
objection. We have examined the signature purported to be of
Ghulam Mohiuddin, P.W. 1, and we find that there is clear
over-writing by which various letters of the signature of
Ghulam Mohiuddin have been tampered with. The Returning
officer has also deposed that he had given time to the
candidates to examine the nomination papers at the time of
the scrutiny in order to submit objections, if any. The
appellant and his counsel examined the nomination paper of
the petitioner and did raise an objection regarding the
genuineness of the signature of his proposer P.W. 1. This
objection has been recorded in the order passed by the
Returning Officer. In view of these circumstances we see no
reason at all to distrust the evidence of the Returning
officer R.W. 3 on the point that the nomination paper was in
the same condition at the date of the scrutiny as it was on
the date when he was deposing.

There is yet another matter on which there appears to
be a serious controversy between the parties. The
petitioner’s case was that the appellant Mohd. Yasin had not
at all raised any objection to the genuineness of the
signature of P.W. 1. Ghulam Mohiuddin on the nomination form
and that the aforesaid objection was subsequently
incorporated by the Returning officer in his order by
committing interpolation. On the other hand the appellant’s
definite case was that after inspecting the nomination paper
he raised a clear objection before the Returning officer
regarding the genuineness of the signature of the proposer
Ghulam Mohiuddin and this objection was not only recorded by
the Returning officer at that very time but was also
sustained. The case of the appellant is substantially
corroborated by the recitals in Ext. R.W. 3/3 the order
passed by the Returning officer which must be presumed to be
genuine as there is nothing to show that it was either
interpolated or brought into existence subsequently. The
petitioner’s case, however, rests purely on the oral
evidence of a few interested witnesses. To begin with, so
far as the evidence of P.W. 1 Ghulam Mohiuddin and P.W. 5
The petitioner is concerned the same would be of no
assistance in deciding this question because as held by us
these two persons were not present at the time of the
scrutiny and therefore they were not competent to depose
whether or not any objection was taken by the appellant
regarding the genuineness of the signature of Ghulam
Mohiuddin. It is true that P.W. 3 Mohammed Maqbool Mir. who
was the counsel for the appellant has stated that he never
raised any objection on behalf of the appellant at the time
of the scrutiny. We have already discussed the evidence of
this witness and held that he was an utterly uncreliable
witness for the reasons which we have already given.
Moreover he appears to be a turn-coat type of witness and
has changed sides as observed by the learned Judge. Finally
his evidence is clearly contradicted by the document Ext.
R.W. 3/3 wherein it is clearly mentioned that the witness
Mohd. Maqbool did raise objection regarding
18
the genuineness of the signature of P.W. 1 Ghulam Mohiuddin
on behalf of the appellant before the Returning officer at
the time of the scrutiny. In these circumstances, therefore,
we are not able to place any reliance on the evidence of
this witness.

The last witness on the point is P.W. 4 Gulam Qadir Mir
who has no doubt stated that no objection was taken by any
body at the concerned time. This witness, however, was an
agent of a different candidate and was not at all interested
in the appellant and as, according to him, he was at some
distance from the Returning officer it is possible that he
may not have heard the objection taken by the appellant
before the Returning officer. At any rate, the evidence of
this witness by itself is not sufficient to demolish other
circumstances appearing in the case, particularly the
recitals in the documents R.W. 3/3.

As against this, R.W. 1, who, as we have already
pointed out, is an independent witness, and being a
candidate himself was present at the time when the scrutiny
of the nomination took place, and his interest was by no
means identical with the appellant and, therefore, had no
reason to depose falsely to help the appellant. This witness
has categorically stated thus:

“Respondent No. 1 (appellant) at that time raised
an objection that he was challenging the signature of
the proposer on the nomination paper of the petitioner.

* * * * * *
When there was an objection to the nomination
paper of the petitioner by Mohd. Yaseen then he
(Returning officer) scrutinised the nomination paper
and passed an order which was announced in the absence
of the petitioner.”

Similarly, R.W. 3 the Returning Officer has also clearly
deposed that an objection was raised by the appellant which
was recorded in his order. The evidence of R.Ws. 1 and 3
finds ample corroboration from the recitals in the document
Ext. R.W. 3/3. Apart from this R.W. 2 who is no doubt a
counting agent of the appellant has testified to the fact
that the appellant had raised an objection regarding the
genuineness of the signature of P.W. 1 Ghulam Mohiuddin. As
the evidence of this witness is corroborated by two
independent witnesses R.Ws. 1 & 3 we see no reason to
disbelieve him. Lastly there is the categorical statement of
the appellant himself that he did raise an objection. In
these circumstances, therefore, we are satisfied that the
evidence led by the appellant far out weighs the interested
oral testimony led by the petitioner. In these
circumstances, therefore, we find that it has been proved
beyond doubt that the appellant did raise an objection
regading the genuineness of the signature of P.W. 1 Ghulam
Mohiuddin before the Returning officer on February 9, 1972,
at the time of the scrutiny of nomination papers.

It is, therefore, established that at the time when the
nomination paper of the petitioner was taken up for scrutiny
the overwriting on
19
the signature of P.W. 1 Ghulam Mohiuddin was already there
and there is a strong possibility that the overwriting had
been deliberately made at the instance of the petitioner so
as to furnish a ground for setting aside the election of the
successful candidate if the official candidate of the
Congress failed to win the election.

Mr. Pathak learned counsel for the petitioner submitted
that a bare perusal of the order of the Returning officer
would clearly show that there has been some tampering.
Before examining this contention we may mention that from
the evidence and circumstances discussed above, the
following facts emerge:

(i) that the petitioner was a dummy candidate of
the Congress;

(ii) that R.W. 1 Mohd. Anwar Shah Masoodi had
expressed his clear apprehension that there
was very little chance of Mohd. Yunis the
official candidate of the Congress to win the
election, and, therefore, there was every
motive for the petitioner to have prepared
some ground for asailing the election of the
appellant in case he was successful;

(iii)that on the date of the scrutiny of the
nomination papers neither the petitioner nor
his proposer were present before the
Returning officer;

(iv) that at the time of the scrutiny the
appellant either personally or through his
counsel definitely raised an objection about
the genuineness of the signature of P.W. 1
Ghulam Mohiuddin on the nomination paper Ext.
P.W. 5/2; and

(v) that the overwriting on the signature of P.W.

1 Ghulam Mohiuddin was present even at the
date of the scrutiny and perhaps even on the
date when the nomination paper was filed
before the Returning officer.

In the background of these proved facts, we would now
examine whether or not the contention raised by the learned
counsel for the petitioner is correct. The order passed by
the Returning officer rejecting the nomination paper of the
petitioner which is Ext. R.W. 3/3 runs thus:

“The candidate and the proposer are not present.
Hence rejected, also an objection has been raised to
the genuineness of the proposer’s signature by one
Mohd. Maqbool counsel for Mohd. Yaseen Shah candidate.
I could not verify it for absence of candidate and the
proposer.”

It was contended by Mr. Pathak that this order runs into two
parts. By the first part of the order the Returning officer
appears to have rejected the nomination paper merely on the
ground of the absence of the candidate and the proposer. By
the second part, which
20
according to the counsel for the petitioner appears to have
been added subsequently, the objection taken by the
appellant regarding the genuineness of the proposer’s
signature has been recorded, and even so, the Returning
Officer has not given any decision on this point. We have
perused the original order passed by the Returning officer
very carefully, but we find that the entire order has been
written in the same ink with the same pen and appears to
have been written in one sitting. There is nothing to show
that the second part of the order was added subsequently
because the strokes of the letters, the ink which has been
used and the general tenor of the writing appears to be the
same throughout. In these circumstances, therefore, we
reject the contention of the petitioner that the second part
of the order was added subsequently. We accordingly hold
that the allegations made by the petitioner against the
Returning Officer in paragraph 26 of the election petition
are totally unfounded and the petitioner has miserably
failed to prove the same. The entire order of the Returning
Officer was written in one sitting and there can be no
question of any interpolation having been made by him nor
had the Returning Officer any motive to do so. Nevertheless
it is true that after having written the order “Hence
rejected”, the Returning officer appears to have recorded
the fact that an objection was raised regarding the
genuineness of the proposer’s signature. For this R.W. 3 the
Returning officer appears to have given a very convincing
and reasonable explanation. He says that while he was
writing his order and had not completed the same, an
objection was taken by Mohd. Maqbool counsel for Mohd.
Yaseen regarding the genuineness of the signature of the
proposer. At that time the clerk had already put the seal
and, therefore, the Returning officer recorded the objection
raised by the appellant in the space left and completed his
order and thereafter he signed above the seal. The Returning
officer R.W. 3 in this connection stated thus:

“When in spite of repeated calls neither the
petitioner nor his proposer turned up before me, then,
I began to write out the order on the back of the
nomination form…..After the scrutiny by them,
Mohammed Yaseen as; well as his counsel brought this
fact to my notice that the signature of the proposer on
the nomination form of the petitioner was not genuine..
…….. The portion in my order regarding the non-
appearance of the petitioner or his proposer as well as
the portion regarding the objection about the
genuineness of the signature were written by me
contemporaneously at the time of passing the order on
the nomination form in respect of the scrutiny. The
seal is not below my order but it is just in the midst
of the portion of my order and the reason for this is
that at the time of the scrutiny when I was passing the
order, my clerk was also standing by my side and he was
affixing the seal and it so happened that while I was
hearing the objection in respect of this nomination
form, the clerk affixed the seal at that place.”

The Returning officer further stated in his evidence that he
upheld the objection of the appellant as there was no body
on behalf of the
21
candidate to rebut the objection raised by the appellant.
The explanation given by the Returning Officer is fully
corroborated by the evidence of the appellant and his
witnesses, particularly R.W. 1, who is undoubtedly an
independent witness. As we have already held that the
Returning Officer was an independent witness and a
Government official, there is absolutely no reason why he
should have added a part of the order subsequently.

It was then contended by Mr. Pathak that even though
the Returning Officer recorded the objection taken by the
appellant he has not expressed any final opinion or taken
any decision in the matter. Our attention was drawn to s.
47(2) (c) of the Act which runs thus:

“47. (2) The returning officer shall then examine
the nomination papers and shall decide all objections
which may be made to any nomination and may, either on
such objection or on his own motion, after such summary
enquiry, if any, as he thinks necessary, reject any
nomination on any of the following grounds:-

* * * * * *

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

It was submitted that the Returning Officer has nowhere held
as a fact that the signature of the proposer was not
genuine. He has merely indicated the objection raised by the
appellant but has not examined the validity of that
objection and, therefore, the order must be read as having
rejected the nomination paper merely on the ground of the
absence of the candidate and his proposer. It is true that
under s. 47(2) (c) which is the only relevant provision
which applies to this case it was not open to the Returning
Officer to reject the nomination paper merely on the ground
of the absence of the candidate or his proposer. The learned
Judge seems to have accepted the petitioner’s argument that
on his interpretation of the order and found that the
nomination paper was rejected merely on the ground of the
absence of the candidate and his proposer. The learned Judge
has also held that having rejected the nomination paper any
subsequent observations which the Returning Officer made
would have to be ignored as he became functus officio. This
interpretation of the learned Judge has been adopted by Mr.
Pathak learned counsel for the petitioner. On a close and
careful reading of the order of the Returning Officer, as a
whole, we are unable to agree with the interpretation put by
the learned Judge or adopted by the learned counsel for the
petitioner. We have already pointed out the facts proved
which clearly show that at the time when the Returning
Officer passed the order he had before him the signature of
Ghulam Mohiuddin with an overwriting. Both P.W. 1 Ghulam
Mohiuddin and counsel for the petitioner have categorically
admitted in their statements that the signature in the
present form with the overwriting was not the signature of
Ghulam Mohiuddin. P.W. 1 at p. 66 of the Paper Book deposed
as follows:

22

“Question: Do you accept this signature to be
yours in its present form as it stands ?
Answer: I do not accept this to be my signature in
the forms as it stands at present.”

Similarly P.W. 5 who is counsel for the petitioner and in
whose presence P.W. 1 had signed the nomination paper also
admits in clear terms thus:

“In the present form I do not accept that it is
the signature of Ghulam Mohi-ul-Din.”

Thus if the person who had signed the nomination paper and
the lawyer in whose presence Ghulam Mohiuddin had signed the
nomination paper were convinced that the signature as
overwritten was not the signature of Ghulam Mohiuddin, how
can we find fault with the Returning Officer if he also, on
a bare perusal of the nomination paper, doubted the
genuineness of the signature ? The suspicion of the
Returning Officer regarding the genuineness of the signature
of the proposer was further reinforced by the fact that a
specific objection on this point was taken by counsel for
the appellant as recorded in the order itself. Thus the
order read as a whole clearly shows that the nomination
paper was rejected not only on the ground that the candidate
or his proposer was not present but also on the ground that
the signature of the proposer on the nomination paper was
not genuine. It is true that the Returning Officer has not
given any clear finding on this point, but s. 47 of the Act
does not require well reasoned decision. All that is
necessary is that the Returning Officer should apply his
mind and determine the question in a summary manner. The
Returning Officer has, in the instant case, indicated
objection taken by the appellant regarding the genuineness
of the signature of the proposer and has also clearly
observed that in view of the objection it is not possible to
verify the signature in the absence of the candidate and the
proposer. Thus the absence of the candidate and the proposer
has been used not for the purpose of rejecting the
nomination paper but for the purpose of supporting the
conclusion of the Returning Officer that the signature of
the proposer was not genuine. Even assuming for the sake of
argument that the Returning Officer had in effect and in
substance rejected the nomination paper on the ground of the
absence of the candidate and the proposer which was not a
valid ground for rejection of the nomination paper, this
does not put an end to the controversy. There is abundant
authority for the proposition that even if the ground on
which the nomination paper has been actually rejected is not
a permissible ground, if the successful candidate can make
out a case that the nomination paper could have been
properly rejected on one of the grounds mentioned in s. 47
of the Act, the rejection would not be improper and the
election would be upheld. This Court considered this
question in N. T. Veluswami Thevar v. G. Raja Nainar &
Ors.(1) and observed as follows:

“The argument is that if the jurisdiction of the
Tribunal is co-extensive with that of the returning
officer, then the
23
enquiry before it must be confined to the grounds which
were urged before the returning officer. Now, the
observations quoted above were made statedly with
reference to R. 47, and assuming that they apply to an
enquiry under s. 100(1)(c), the question still remains,
what is the jurisdiction of the returning officer in
hearing objections to nomination papers ? His
jurisdiction is detined in s. 36(2), and the Tribunal
must therefore have jurisdiction to decide all the
questions which can be raised under that section. The
fact that a particular ground which could have been
raised was not, in fact, raised before the returning
officer does not put an end to his jurisdiction to
decide it, and what he could have decided if it had
been raised, could be decided by the Tribunal, when
raised.” p. 635.

“They held, with one solitary exception, that it
is permissible, and indeed, it is stated in Mengh Raj
v. Bhimandas-(1952) 2 E.L.R. 301, 310-as settled law
that the rejection of a nomination paper can be
sustained on grounds not raised before the returning
officer. If the legislature which must be taken to have
knowledge of the law as interpreted in those decisions
wanted to make a departure from it, it would have said
so in clear terms, and in the absence of such an
expression, it would be right to interpret s. 100(1)

(c) as not intended to alter the law as laid down in
those decisions.” p. 636.

“The question now under consideration came up
directly for decision before the High Court of
Rajasthan in Tej Singh v. Election Tribunal, Jaipur-

(1954) 9 E.L.R. 193-and it was held that the respondent
to an election petition was entitled to raise a plea
that the nomination of the petitioner rejected on one
ground by the returning officer was defective on one or
more of the other grounds mentioned in s. 36(2) of the
Act, and that such a plea, if taken, must be enquired
into by the Election Tribunal.” p. 637
“An unreported judgment of the Andhra Pradesh High
Court in Badrivishal Pitti v. J. V. Narsing Rao-Special
Appeal No. of 1957-has been cited before us, and that
also takes the view that in an enquiry before the
Election Tribunal, it is open to the parties to support
an order of rejection of a nomination paper on grounds
other than those which were put forward before the
returning officer. We are in agreement with these
decisions.” p. 637
Mr. Pathak learned counsel for the petitioner sought to
distinguish this decision on the ground that while it is
open to the Tribunal, or the High Court in the instant case,
to examine other grounds on which the nomination paper could
have been rejected, yet in the present state of pleadings no
such question appears to have been raised before the High
Court. This argument does not appear to be factually
24
correct. This plea was specifically raised by the appellant
in paragraph-8 of his written statement relevant part of
which may be extracted thus:

“The answering respondent challenges the
genuieness of the signature of the proposer of the
petitioner which could neither be rebutted nor
challenged by the petitioner or his proposer as both
were absent and hence the rejection of the petitioner
was announced by the Returning Officer, who under the
circumstances was justified under section 47 of the
R.P. Act to reject the nomination paper of the
petitioner and as such this rejection cannot be deemed
to be in law as improper rejection and the petitioner
cannot now challenge the same as there is no infirmity
in the order of rejection by the Returning Officer.”

Furthermore in the additional written statement, filed by
the appellant after the learned Judge allowed the petitioner
to amend his election petition, this point was reiterated in
paragraph 2(iv) thus:

“That the signature of the proposer on the
nomination form as was also challenged before the
Returning Officer is not genuine and the rejection is
not improper.”

In paragraph-4 of the said additional written statement it
was stated thus:

“That the signature of the proposer Ghulam Mohi-
uddin not being genuine on the nomination form the
rejection is not improper and the petition is liable to
be dismissed.”

The learned Judge had framed issue No. 1 in the widest
possible terms which includes rejection of the nomination
paper even on the ground that the signature of the proposer
was not genuine which is undoubtedly a valid ground under s.
47(2) (c) of the Act. The issue framed by the learned Judge
was as follows:

“1. Whether the nomination paper of the petitioner
was improperly and illegally rejected ? O.P.P.”
It is manifest that this issue covers the decision on the
question as to whether various grounds on which the
nomination paper could have been improperly rejected
including the ground mentioned in s. 47(2) (c) of the Act.
namely, the fact that the signature of the proposer was not
genuine. Even the learned Judge clearly understood the
pleadings of the appellant to include the fact that the
nomination paper was rejected because of the genuineness of
the signature of the proposer. In this connection the
learned Judge in his order dated November 7, 1972 observed
as follows:

“It appears from the petition that the ground was
the absence of the petitioner at the time of the
scrutiny of the nomination paper but it also appears
from the written statement filed by the respondent as
well as from the order
25
of the Returning Officer that the nomination paper had
also been rejected because of the genuineness of the
signature of the proposer. The nomination paper can be
rejected on the question of the genuineness as
contemplated by clause (c) of Section 47 of the J & K
Representation of the People Act of the State.”

It was for these reasons that the learned Judge did not
think it necessary to recast the issue, because he thought
that the plea taken by the appellant in his written
statement was fully covered by the issue already framed. In
these circumstances, it is clear that the appellant had
clearly raised the question that the nomination paper of the
petitioner could be properly rejected under s. 47(2) (c) of
the Act even on the ground that the signature of the
proposer was not genuine. The learned Judge committed and
error in not deciding this particular plea taken by the
appellant when he found that the Returning Officer had
improperly rejected the nomination paper on the ground of
the absence of the candidate and the proposer.

We have, however, examined the various aspects of this
question and from the facts found by us it is clear that the
overwriting in the signature which was present at the date
of the scrutiny also throws considerable doubt on the
genuineness of the signature of the proposer Ghulam
Mohiuddin as clearly admitted by him and the lawyer of the
petitioner himself. The fact that the proposer and the
petitioner were both absent on the date of the scrutiny
lends sufficient support to the inference that the signature
of the proposer Ghulam Mohiuddin on the nomination form does
not appear to be genuine. It is also clearly established as
found by us that the appellant did raise an objection
regarding the genuineness of the signature of the proposer
Ghulam Mohiuddin on the nomination form and that there was
no one present on behalf of the candidate to rebut or refute
the objection taken by the appellant. On the other hand P.W.
5 who was the counsel for the petitioner and in whose
presence the proposer Ghulam Mohiuddin had signed the
nomination form was actually present at the time of the
scrutiny and yet, for reasons best known to him, he did not
choose to stand up and point out to the Returning Officer
that the objection raised by the appellant was not tenable
because the proposer had signed the nomination form in his
presence. Lastly the signature which contains the
overwriting ex facie shows that it was not genuine. In these
circumstances. therefore, the only irresistible inference
that could be drawn would be that the signature containing
the overwriting in the present form, which was in existence
even at the time of the scrutiny, could not have been the
signature of P. W. 1 Ghulam Mohiuddin. To add to this is the
fact that P.W. 1 himself clearly admitted that in the
present form, namely, the signature containing the
overwriting, he was not in a position to admit that it was
his signature. This assertion was fully supported by P.W. 5
Girdhari Lal counsel for the petitioner in whose presence
P.W. 1 is said to have signed the nomination form. The
learned Judge appears to have entered into the domain of
speculation by brushing aside the clear and categorical
admission made by P.W. 1 on the ground that the question put
to him
26
had placed him on the horns of a dilemma. Once it is proved
that the signature in the present form existed even at the
time of the scrutiny, then the question put to the witness
P.W. 1 was most relevant and the answer given by the witness
was both clear and unambiguous. We do not see any vagueness
or ambiguity in the answer given by the witness. Instead of
taking the clear admission of P.W. 1 on its face value the
learned Judge tried to brush it aside on purely speculative
grounds. In these circumstances we are unable to agree with
the view taken by the learned Judge which is based on a
misreading and misinterpretation of the evidence of P.W. 1.
For the same reason, we reject the contention of Mr. Pathak
that the admission of P.W. 1 was vague. In these
circumstances, therefore, we hold that it has been proved to
the satisfaction of the Court that the signature of P.W. 1
Ghulam Mohiuddin which contained the overwriting was not his
genuine signature. The nomination paper of the petitioner,
therefore, could have been properly rejected on the ground
that the signature of the proposer was not genuine. Thus the
rejection of the nomination paper by the Returning Officer
could be supported even on a ground different from the one
which may have been taken by the Returning Officer. This
being the position the rejection of the nomination paper was
proper, and the election of the appellant could not be
assailed under s. 108(1)(c) of the Act under which the
election could be declared void only if there was an
improper rejection of the nomination paper. In the instant
case, the rejection of the nomination paper by the Returning
Officer being proper one, s. 108(1)(c) was not at all
attracted.

It was lastly contended by counsel for the petitioner
that this Court ought not to interfere with the decision of
the learned Judge unless there were special reasons for
doing so. In support of his contention the learned counsel
relied upon a decision of this Court in Laxminarayan and
another v. Returning Officer and others(1) where this Court
observed as follows:

“Section 116A of the Act provides for an appeal to
this Court from an order of the High Court dismissing
an election petition. The appeal lies both on issues of
law and of facts ………………. The power of the
appellate Court is very wide. It can reappraise the
evidence and reverse the trial court’s findings of
fact. But like any other power it is not unconfined: it
is subject to certain inherent limitations in relation
to a conclusion of fact. While the trial court has not
only read the evidence of witnesses on record but has
also read their evidence in their faces, looks and
demeanour. The appellate Court is confined to their
evidence on record. appellate Court is confined to
their evidence on record. bility lies is entitled to
great weight.” (See Saraveeraswami v. Talluri-A.I.R.
1949 P.C. 32). However, the appellate court may
interfere with a finding of fact if the trial court is
shown to have overlooked any material feature in the
evi-

27

dence of a witness or if the balance of probabilities
as to the credibility of the witness is inclined
against the opinion of the trial Court.”

The propositions enunciated by the Court are well
established and there can be no dispute with the
propositions mentioned above. In the instant case, however,
we find that the approach of the learned Judge was not
correct. We have already pointed out a number of salient
features appearing in the evidence which have rendered the
case of the petitioner inherently improbable. The learned
Judge appears to have overlooked these essential features.
Further, the learned Judge himself had observed that issue
No. 1 which he had framed was wide enough to include the
plea of the appellant, and even if the order of the
Returning Officer in rejecting the nomination paper on the
ground of the absence of the candidate or his proposer was
wrong, it could still be supported on the ground that the
signature of the proposer was not genuine. The learned Judge
has not determined this aspect of the matter. In these
circumstances, therefore, we feel that the judgment of the
High Court is erroneous both on fact and in law and although
the appellate Court is extremely slow in disturbing the
findings of fact, in the instant case, we are satisfied that
the judgment of the High Court is against the weight of the
evidence on record and preponderance of probabilities.

For the reasons given above, the appeal is allowed, the
order of the High Court setting aside the election of the
appellant Mohd. Yasin Shah is quashed and the election
petition filed by the petitioner is hereby dismissed. The
appellant will be entitled to his costs throughout.

P.B.R.					     Appeal allowed.
28