{"id":152768,"date":"1976-04-14T00:00:00","date_gmt":"1976-04-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohd-yasin-shah-vs-ali-akbar-khan-on-14-april-1976"},"modified":"2016-10-19T08:30:33","modified_gmt":"2016-10-19T03:00:33","slug":"mohd-yasin-shah-vs-ali-akbar-khan-on-14-april-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohd-yasin-shah-vs-ali-akbar-khan-on-14-april-1976","title":{"rendered":"Mohd. Yasin Shah vs Ali Akbar Khan on 14 April, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohd. Yasin Shah vs Ali Akbar Khan on 14 April, 1976<\/div>\n
Equivalent citations: 1976 AIR 1866, \t\t 1976 SCR 1<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nMOHD. YASIN SHAH\n\n\tVs.\n\nRESPONDENT:\nALI AKBAR KHAN\n\nDATE OF JUDGMENT14\/04\/1976\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nBHAGWATI, P.N.\nGUPTA, A.C.\n\nCITATION:\n 1976 AIR 1866\t\t  1976 SCR    1\n 1977 SCC  (2)\t23\n CITATOR INFO :\n R\t    1978 SC 351\t (15)\n R\t    1985 SC  89\t (13)\n\n\nACT:\n     Jammu &  Kashmir Representation  of the  People Act, S.\n47(2) (c)-Scope of\n\n\n\nHEADNOTE:\n     Section 47(2)  of the Jammu & Kashmir Representation of\nthe People  Act enacts\tthat  the  Returning  Officer  shall\nexamine\t the   nomination  papers   and\t shall\t decide\t all\nobjections which  may be  made to  any nomination  and\tmay,\neither on  such objection  or in  his own motion, after such\nsummary enquiry,  if  any,  reject  any\t nomination  on\t the\nground, among others, that the signature of the candidate or\nthe proposer on the nomination paper is not genuine.\n     For the  general election\tto the\tState  Assembly\t the\nappellant and  the respondent  (petitioner) filed nomination\npapers. The  nomination paper of the respondent was rejected\nby the\tReturning  Officer  on\tthe  ground  that  when\t his\nnomination was\tcalled neither\the nor\tanyone on his behalf\nwas present.  After the\t words 'Hence  rejected' recorded on\nthe nomination\tpaper the  Returning Officer  had also added\nthat the  signature of\tthe proposer was not genuine. In the\nelection that ensued the appellant was declared elected. The\nrespondent in  his election petition alleged (i) that though\nat the\ttime of\t scrutiny the Returning Officer was informed\nby his proposer that the respondent had gone out to ease and\nrequested him  to wait\tfor a  while, the  Returning Officer\nrejected the  nomination paper\tand refused  to\t reopen\t the\nmatter\teven   on  the\t respondent's  request\t immediately\nthereafter and\t(ii) that  the Returning  Officer  committed\nforgery by subsequently adding certain words in the order of\nrejection and  by over-writing the signature of the proposer\non the nomination paper.\n     The High  Court held (i) that the Returning Officer was\nnot justified  in law  in rejecting  the nomination paper of\nthe respondent\ton the ground that he was not present at the\ntime of scrutiny, and (ii) that the Returning Officer having\nbecome functus\tofficio any subsequent observations which he\nmight have  made was  irrelevant and  since  the  nomination\npaper was  illegally rejected  the election was void and was\nliable to be set aside under s. 108(1)(c) of the Act.\n     Allowing the appeal to this Court,\n^\n     HELD: The\tjudgment of the High Court is erroneous both\non fact\t and in law and is against the weight of evidence on\nrecord and preponderance of probabilities. [27 D]\n     (1) Although  the appellate  Court should\tbe  slow  to\ndisturb a  pure finding\t of fact  based on  appreciation  of\nevidence by  the Trial\tCourt, it  is well  settled that the\nsanctity  and\tpurity\tof   electoral\tprocesses   must  be\nmaintained. The\t election of a duly elected candidate cannot\nbe set\tat naught  on the  basis of  interested on  partisan\nevidence not backed by cogent circumstances or unimpeachable\ndocuments. [6 H]\n     Rahim Khan\t v. Khurshid  Ahmed &  Ors.<\/a> [1975]  1 S.C.R.\n643, 656  and D. Venkata Reddy v. R. Sultan & Ors.<\/a> [1976], 3\nS.C.R. 445, referred to.\n     In the  instant case the approach of the High Court was\nnot correct.  It had  overlooked  many\tessential  features.\nSecondly the  High Court  had observed\tthat issue No. 1 was\nwide enough to include the appellant's plea that even if the\norder of  the Returning\t Officer in rejecting the nomination\npaper on  the ground  of absence  of the  candidate  or\t his\nproposer was wrong, it could\n2\nstill be  supported on\tthe ground that the signature of the\nproposer was  not genuine.  Yet it  had not  determined this\naspect of the matter. [27 C]\n     (2) The  order of the Returning Officer read as a whole\nclearly shows  that the\t nomination paper  was rejected\t not\nonly on\t the ground  that the  candidate or his proposer was\nnot present but also on the ground that the signature of the\nproposer on the nomination paper was not genuine. It is true\nthat the  Returning Officer  had not given any clear finding\non this\t point but  s. 47  of the Act did not require a well\nreasoned decision.  All that  was  necessary  was  that\t the\nReturning Officer  should apply\t his mind  and determine the\nquestion in  a summary\tmanner. Even  if the ground on which\nthe nomination\tpaper had  been actually  rejected was not a\npermissible ground,  if the  successful candidate could make\nout a  case  that  the\tnomination  paper  could  have\tbeen\nproperly rejected  on one  of the grounds mentioned in s. 47\nthe rejection  would not  be improper and the election would\nbe upheld. [22 D-H]\n     N. T.  Veluswami Thevar v. G. Raja Nainar & Ors.<\/a> [1959]\nSupp. 1 S.C.R. 623 followed.\n     (i) In the instant case the fact that P.W. 4 had stated\nin his\tevidence that  when the Returning Officer called the\nname of the petitioner no one on his behalf responded knocks\nthe bottom  out of  the respondent's story that the proposer\nhad been instructed to request the Returning Officer to wait\nor that\t the  Returning\t Officer  had  not  acceded  to\t his\nrequest. [8 D]\n     (ii) On  a perusal\t of the Returning Officer's original\norder it was clear that the entire order had been written in\nthe same  ink, with  the same  pen and\tappears to have been\nwritten in  one sitting.  There is  nothing to show that the\nsecond part  of the order was added subsequently because the\nstrokes of  the letters,  the ink used and the general tenor\nof the writing are the same throughout. [20 B]\n     (iii)  As\t regards  that\t portion  of  the  Returning\nOfficer's  order   written  by\t him  after  writing  \"Hence\nrejected\" his  explanation was that while he was writing his\norder and had not completed the same, objection was taken by\nthe appellant  regarding the  genuineness of  the proposer's\nsignature and  since the  clerk had by then put the seal, he\nhad recorded  the appellant's  objection in  this space left\nand completed  his order and signed above the seal. This was\ncorroborated by independent witnesses and there is no reason\nwhy the\t Returning Officer  should have\t added a part of the\norder subsequently. [20E, 21 A]\n     (iv)  The\t Returning  Officer,  while  indicating\t the\nappellant's  objection\tregarding  the\tgenuineness  of\t the\nsignature of  the proposer  also observed  that it  was\t not\npossible to  verify the\t signature of  the proposer  in\t the\nabsence of  the candidate  as well as the proposer. Thus the\nabsence of the candidate and the proposer had been used, not\nfor the\t purpose of  rejecting the nomination paper, but for\nthe purpose  of supporting  the conclusion  of the Returning\nOfficer that the signature was not genuine. [22 F]\n     (v)  It   has  been   satisfactorily  proved  that\t the\nsignature of  the proposer  which contained  overwriting was\nnot his\t genuine signature  and, therefore,  the  nomination\npaper had  been properly rejected and the election could not\nbe assailed  under s.  108(1)(c) of  the Act. From the facts\nfound it  was clear  that the  over-writing present  in\t the\nsignature at  the time\tof scrutiny threw considerable doubt\non the\tgenuineness of\tthe proposer's\tsignature. The\tfact\nthat the proposer and the respondent were absent at the time\nof scrutiny  lends sufficient  support to the inference that\nthe signature of the proposer was not genuine. [26 C-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1141 of
\n1974.\n<\/p>\n
     Appeal from the Judgment and Order dated 10th June 1974
\nof the\tJammu &\t Kashmir High  Court at Srinagar in Election
\nPetition No. 4 of 1972.\n<\/p>\n
3<\/span><\/p>\n
     A. K.  Sen,  Altaf\t Ahmed\tand  M.\t Veerappa,  for\t the
\nappellant.\n<\/p>\n
     G. S.  Pathak, O.\tC. Mathur,  Shri Narain\t and  J.  B.
\nDadachanji, for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J.-This is  an election  appeal against the
\njudgment of the High Court of Jammu & Kashmir dated June 10,
\n1974, by  which\t the  learned  Judge  allowed  the  election
\npetition filed\tbefore him  by the respondent Ali Akbar Khan
\nand set\t aside the  election of the returned candidate Mohd.
\nYasin Shah  who is  the appellant  before us.  The  returned
\ncandidate will,\t for short,  be referred  to by\t us as\t‘the
\nappellant’  and\t the  respondent  Ali  Akbar  Khan  will  be
\nreferred to  as ‘the petitioner’. It appears that during the
\nelections held\tin the\tyear 1972  in the  State of  Jammu &
\nKashmir both  the appellant  and  the  petitioner  were\t the
\ncandidates for\telection to the Karnah Assembly Constituency
\nof the\tDistrict of  Baramulla\tin  the\t State\tof  Jammu  &
\nKashmir. There\twere other  candidates also some of whom had
\nwithdrawn. One\tMohd Yunis  was the  Congress candidate\t for
\nthis constituency  but\the  was\t defeated.  The\t petitioner,
\naccording to the appellant was merely a covering or a shadow
\ncandidate  for\t the  Congress\tcandidate  Mohd\t Yunis.\t The
\npetitioner filed  his nomination  paper on  February 7, 1972
\nand his\t proposer was  P.W. 1 Ghulam Mohiuddin. According to
\nthe petitioner\tthe nomination\tpaper was  presented to\t the
\nReturning Officer  R.W. 3  Abdul Rehman\t Mir on\t February 7,
\n1972 by the petitioner who was accompanied with his proposer
\nGhulam\tMohiuddin  who\thad  signed  as\t the  proposer.\t The
\nReturning Officer  received the nomination paper and granted
\na receipt  for the  same. A  sum  of  Rs.  250\/-  being\t the
\nelection deposit  was also  deposited and  other formalities
\nwere duly  observed. February  9, 1972,\t was the  last\tdate
\nfixed for  the scrutiny\t of the nomination papers of all the
\ncandidates. According  to  the\tpetitioner  he\treached\t the
\noffice of the Returning Officer at about 10 A.M. on February
\n9, 1972,  but as  he was suffering from dysentery he went to
\nattend the call of nature and instructed his proposer P.W. 1
\nGhulam Mohiuddin  to take  time on his behalf if the name of
\nthe candidate  was called  out. The petitioner’s case before
\nthe  High   Court  was\tthat  the  Returning  Officer  after
\nscrutinising the  nomination papers accepted all of them but
\nrejected the  nomination paper\tof  the\t petitioner  on\t the
\nground of  his absence\tin spite  of the  fact that  P.W.  1
\nGhulam Mohiuddin  requested him\t to wait  for the petitioner
\nwho had\t gone to  attend the  call of nature. It was further
\nalleged that  when the\tpetitioner returned he beseeched the
\nReturning Officer not to reject his nomination paper but the
\nReturning Officer  refused  to\treopen\tthe  matter  as\t the
\nnomination paper  of Mohd.  Yunis the Congress candidate had
\nbeen accepted.\tThe nomination\tpaper of Mohd Yasin Shah the
\nappellant was also accepted. Thereafter the poll was held on
\nMarch 8,  1972 and  the results\t were declared\ton March 12,
\n1972. The  appellant Mohd  Yasin Shah  was declared elected,
\nwhile Mohd  Yunis  was\tdefeated.  After  the  results\twere
\ndeclared the  petitioner applied for a certified copy of the
\norder of rejection of his nomination paper on April 1, 1972,
\nand according  to him  the Returning  Officer tried to avoid
\ngiving the copy of the said order which was ultimately given
\n4<\/span>
\nto him on April 3, 1972, April 2, being a Sunday. The sheet-
\nanchor of  the case of the petitioner was that the Returning
\nOfficer was  particularly biased against him and he rejected
\nthe nomination\tpaper  in  order  to  support  the  returned
\ncandidate in  whom he was interested. The petitioner further
\npleaded that  the only\tground on which the nomination paper
\nwas rejected was that the petitioner did not appear when the
\nReturning Officer  called out  his name\t at the\t time of the
\nscrutiny of  his nomination  paper. The\t petitioner  further
\naverred that  under the\t law the Returning Officer could not
\nhave rejected  his nomination  paper on\t the ground  of\t his
\nabsence\t even\tif  it\t was  so.  Not\tcontent\t with  these
\nallegations the\t petitioner went  to the  extent of making a
\nserious and  irresponsible allegation  against the Returning
\nOfficer by averring that the Returning Officer had committed
\nforgery by subsequently adding certain words in the order of
\nrejection and  overwriting the\tsignature  of  the  proposer
\nGhulam Mohiuddin  on the  nomination paper.  Thus, in short,
\naccording to  the petitioner  as his  nomination  paper\t was
\nimproperly rejected  by the  Returning Officer, the election
\nof the appellant was void on that ground alone.\n<\/p>\n
     The petitioner filed the present election petition with
\nthe allegations\t aforesaid on April 12, 1972. It was alleged
\nthat at\t the time  when P.W. 1 Ghulam Mohiuddin was examined
\nas a  witness there was some overwriting on the signature of
\nGhulam Mohiuddin  the proposer\tof  the\t petitioner  on\t the
\nnomination  form.   Accordingly\t the   petitioner  made\t  an
\napplication to\tthe Court  for permission to file an amended
\npetition by  incorporating the fact that the overwriting was
\nbrought into  existence after the scrutiny of the nomination
\npapers was  over and  behind the back of the petitioner. The
\nlearned Judge, after hearing the parties, ultimately allowed
\nthe application\t and accordingly  an  amended  petition\t was
\nfiled by  the petitioner  where\t the  allegations  regarding
\ninterpolation etc.  were made.\tThe appellant was also given
\nan opportunity to file his additional written statement.\n<\/p>\n
     The petition  was stoutly resisted by the appellant who
\ndenied,\t inter\t alia,\tall  the  allegations  made  by\t the
\npetitioner  and\t contended  that  there\t was  absolutely  no
\noverwriting on the signature of Ghulam Mohiuddin nor was any
\nforgery committed  by the  Returning Officer. It was further
\naverred that  as neither the petitioner nor his proposer was
\npresent when  the scrutiny  of the  nomination paper  of the
\npetitioner was\ttaken up by the Returning Officer and as the
\nappellant himself raised the objection that the signature of
\nGhulam Mohiuddin on the nomination paper was not genuine the
\nReturning  Officer   having  applied  his  mind\t upheld\t the
\nobjection and  rejected the  nomination paper  on the ground
\nthat the signature of Ghulam Mohiuddin was not genuine as it
\ncould not  be verified. The appellant also vehemently denied
\nthe allegation\tthat the  Returning Officer  was in  any way
\nbiased or  prejudiced against  the petitioner.\tOn the other
\nhand it\t was  averred  that  the  Returing  Officer  was  an
\nindependent officer and since the petitioner was a candidate
\nof the\tCongress if  the Returning  Officer could  have\t any
\nleaning at  all it  would be  towards the  petitioner rather
\nthan the appellant who was an independent candidate opposing
\nthe Congress  party. The  learned Judge,  after\t taking\t the
\nevidence of the
\n5<\/span>
\nparties, came  to the  conclusion that from the order of the
\nReturning Officer  it would appear that the nomination paper
\nof the\tpetitioner was\trejected mainly on the ground of his
\nabsence\t which\t was  not  a  lawful  ground  on  which\t the
\nnomination paper  could have been rejected under s. 47(2) of
\nthe Jammu & Kashmir Representation of the People Act. On the
\nquestion of  the overwriting  the learned  Judge  held\tthat
\nthere was  no  doubt  that  there  was\toverwriting  on\t the
\nsignature of  P.W. 1 Ghulam Mohiuddin on the nomination form
\nof the\tpetitioner and perhaps the overwriting was made some
\ntime after  the scrutiny.  But the  learned Judge  refrained
\nfrom giving any finding as to who made the interpolation and
\nin what\t circumstances. As  regards the\t allegation that the
\nReturning Officer  had committed  forgery the  learned Judge
\ndoes not appear to have accepted the same or given any clear
\nfinding on  this point, and he steered clear of this fact by
\nobserving that\tas the\tfirst  part  of\t the  order  of\t the
\nReturning Officer  rejecting the  nomination paper was based
\non  the\t ground\t of  the  absence  of  the  petitioner,\t the
\nReturning Officer  became functus  offcio and any subsequent
\nobservation which  he may  have\t made  was  irrelevant.\t The
\nlearned Judge further seems to have held that the petitioner
\nwas not\t present when  the scrutiny  of his nomination paper
\nwas taken  up and the Returning Officer was not justified in
\nlaw in\trejecting his nomination paper on that ground alone.
\nOn these  findings  the\t learned  Judge\t held  that  as\t the
\nnomination paper  of the  petitioner was  illegally rejected
\nthe election  of the appellant was void and was liable to be
\nset aside  under s.  108(1)(c)\tof  the\t Jammu\tand  Kashmir
\nRepresentation of  the People Act-hereinafter referred to as
\n`the Act’, as amended upto date.\n<\/p>\n
     In support\t of  the  appeal  Mr.  Altaf  Ahmed  learned
\ncounsel for  the appellant who was followed by Mr. Asoke Sen
\nsubmitted that\tthe learned Judge has misconstrued the order
\npassed by  the Returning  Officer rejecting  the  nomination
\npaper of  the petitioner  and that  the judgment of the High
\nCourt is  against the  weight of the evidence on the record.
\nIt  was\t also  argued  that  the  learned  Judge  completely
\noverlooked some\t of the\t essential features appearing in the
\ncase which  completely demolished the petitioner’s case. Mr.
\nG.  S.\t Pathak\t appearing   for  the  petitioner,  however,
\nsupported the  judgment of the High Court and contended that
\nthe order  of the Returning Officer was mainly passed on the
\nground of  the absence\tof  the\t petitioner  which  was\t not
\njustified by  the provisions  of s.  47(2)(c) of the Act. He
\nalso submitted\tthat a\tbare perusal  of the  order  of\t the
\nReturning Officer would clearly show that the second part of
\nthe order  regarding the genuineness of the signature of the
\nproposer Ghulam\t Mohiuddin appears  to\thave  been  inserted
\nsubsequently. Lastly,  it was  submitted that  although this
\nCourt could reappraise the evidence for itself it should not
\ninterfere with\tthe judgment  of the  High  Court  on  facts
\nunless\tthe  High  Court  had  committed  an  error  in\t its
\nappreciation of evidence or overlooked any material fact. It
\nwas further  argued that  this Court should keep in mind the
\nslowness of the appellate court to disturb a pure finding of
\nfact based  on appreciation  of evidence  by the Trial Court
\nwhich had the initial advantage of watching the demeanour of
\nthe witnesses  examined by  it. There can be no dispute with
\nthe propositions adumbrated by Mr. Pathak, but we would like
\n6<\/span>
\nto mention  that it  is well  settled that  the sanctity and
\npurity\tof   electoral\tprocess\t  in  the  country  must  be
\nmaintained. The election of a duly returned candidate cannot
\nbe set\tat naught  on the  basis of  interested or  partisan
\nevidence which\tis not\tbacked by  cogent  circumstances  or
\nunimpeachable documents.  In Rahim  Khan v. Khurshid Ahmed &
\nOrs.<\/a>(1) this Court observed as follows :\n<\/p>\n
\t  “We must  emphasize the danger of believing at its
\n     face value\t oral evidence\tin an  election case without
\n     the  backing   of\tsure  circumstances  or\t indubitable
\n     documents.\t x  x  x  There\t is  no\t x-ray\twhereby\t the
\n     dishonesty of  the story can be established and, if the
\n     Court were\t guillible enough to gulp such oral versions
\n     and invalidate elections, a new menace to our electoral
\n     system would  have been  invented through\tthe judicial
\n     apparatus. We  regard it  as extremely  unsafe, in\t the
\n     present climate  of kilkennycat  election\tcompetitions
\n     and partisan  witnesses wearing  robes of\tveracity, to
\n     upturn a  hard won electoral victory merely because lip
\n     service to a corrupt practice has been rendered by some
\n     sanctimonious witness.  The Court must look for serious
\n     assurance,\t unlying   circumstances  or   unimpeachable
\n     documents to uphold grave charges of  corrupt practices
\n     which might  not merely cancel the election result, but
\n     extinguish many a man’s public life.”<\/p><\/blockquote>\n
     In D.  Venkata Reddy v. R. Sultan & Ors.<\/a>(2) this Court,
\nin which  one of  us (Fazal  Ali,  J.)\twas  also  a  party,
\nreiterated the principles in the following words :\n<\/p>\n
\t  “In a\t democracy such\t as  ours,  the\t purity\t and
\n     sanctity of elections, the sacrosanct and sacred nature
\n     of\t the   electoral  process   must  be  preserved\t and
\n     maintained. The  valuable verdict\tof the people at the
\n     polls must\t be given due respect and candour and should
\n     not  be   disregarded  or\t set  at  naught  on  vague,
\n     indefinite, frivolous  or fanciful\t allegations  or  on
\n     evidence  which   is  of\ta  shaky   or  prevaricating
\n     character. It  is\twell  settled  that  the  onus\tlies
\n     heavily on the election petitioner to make out a strong
\n     case for  setting aside  an election.  In\tour  country
\n     election is  a fairly  costly and expensive venture and
\n     the Representation\t of  the  People  Act  has  provided
\n     sufficient safeguards  to make  the elections  fair and
\n     free.  In\t these\tcircumstances,\ttherefore,  election
\n     results cannot  be lightly\t brushed aside\tin  election
\n     disputes.”<\/p><\/blockquote>\n
     We would  now proceed to discuss the various aspects of
\nthe case  in the  light of the principles enunicated by this
\nCourt in  the aforesaid\t cases.\t To  begin  with,  we  might
\nmention that  most of the facts on which evidence appears to
\nhave been  led by  the petitioner  were not  pleaded in\t the
\nelection petition  at all.  For instance,  the definite case
\nmade out  by the  petitioner in his evidence was that at the
\ntime of\t the scrutiny of the nomination papers when the name
\nof the petitioner was called out P.W. 1 Ghulam Mohiuddin the
\nproposer of the
\n7<\/span>
\npetitioner  was\t present  who  drew  the  attention  of\t the
\nReturning officer  to the  fact that the petitioner had gone
\nto attend the call of nature and that he should wait for him
\nbut the\t Returning Officer  refused to wait and rejected the
\nnomination paper  on  the  ground  of  the  absence  of\t the
\npetitioner. It\twas further  sought  to\t be  proved  in\t the
\nevidence that on return the petitioner tried to persuade the
\nReturning Officer  to reopen the matter and in fact filed an
\napplication before  him for recalling the order of rejection
\nof the\tnomination paper  but the  Returning Officer  was so
\nmuch prejudiced\t against him  that he  tore of\tthe petition
\nsubmitted before  him by  the petitioner. It will be noticed
\nthat neither in the original petition nor in the amended one
\nthere is  any  mention\tof  the\t fact  that  P.W.  1  Ghulam
\nMohiuddin drew\tattention of the Returning Officer and asked
\nhim to\twait, nor  is there any mention of the fact that the
\npetitioner  on\this  return  submitted\ta  petition  to\t the
\nReturning  Officer   which  was\t torn  into  pieces  by\t the
\nReturning Officer.  We shall  show that these facts are also
\nnot proved  even by  some of  the witnesses  examined by the
\npetitioner. It\tmay be\tpertinent to note here that while in
\nparagraph 14  it was mentioned that when the nomination form
\nof the\tpetitioner was\ttaken up  it  was  reported  to\t the
\nReturning Officer that the petitioner had gone to attend the
\ncall of\t nature but significantly enough it is not mentioned
\ntherein as to who was the person who had drawn the attention
\nof the\tReturning Officer.  It seems  to us that even at the
\ntime of\t filing his  amended petition  which was filed after
\nthe trial  had started the petitioner was not certain of his
\nease and  had not  yet decided\tto allot  this part  to\t his
\nproposer Ghulam\t Mohiuddin. P.Ws.  1, 2\t and 6 have no doubt
\nasserted in  their evidence  that P.W.\t1  Ghulam  Mohiuddin
\nrequested the  Returning Officer  to wait for the petitioner
\nwho had\t gone to  attend the  call of  nature. P.W. 1 Ghulam
\nMohiuddin  who\twas  the  proposer  of\tthe  petitioner\t and
\ntherefore the  most interested\twitness in  this case has no
\ndoubt testified\t to the fact that he had drawn the attention
\nof the\tReturning Officer  when the  nomination paper of the
\npetitioner was\ttaken up  for  scrutiny\t but  the  Returning
\nOfficer did not heed his request and rejected the nomination
\npaper. This witness also stated that petitioner himself told
\nthe Returning  Officer that  he was going to attend the call
\nof nature  and that  he should wait for him. But the witness
\ndoes  not   appear  to\tbe  sure  of  his  statement  as  he
\nimmediately volunteered\t to state  that as  there was lot of
\nnoise at  that time  evidently the Returning Officer did not
\nhear him. The petitioner also says the same thing.\n<\/p>\n
     P.W. 2 Qazi Mohammad Abdullah also tries to support the
\nfact that  at the  time of  scrutiny the  petitioner was not
\npresent and  Ghulam Mohiuddin  P.W. 1 informed the Returning
\nOfficer that  the petitioner  had gone to attend the call of
\nnature.\t This\twitness,  however,   did  not\tsupport\t the
\nallegation of  the petitioner  that a petition was submitted
\nby him\tbefore the  Returning Officer which was torn by him.
\nThe witness stated thus:\n<\/p>\n
\t  “The petitioner did not submit any petition before
\n     the Returning  Officer in\tmy presence  on the  day  of
\n     scrutiny. There  was no  such incident  in my  presence
\n     such as  the filing  of a petition before the Returning
\n     Officer and the tearing off that petition by him.”<\/p><\/blockquote>\n
8<\/span><\/p>\n
     P.W. 6  the petitioner  himself no\t doubt supported his
\ncase that  he had gone to attend the call of nature when the
\nscrutiny of  his nomination  paper  was\t taken\tup  and\t had
\ninstructed P.W.\t 1 Ghulam Mohiuddin to remain present and to
\nask the\t Returning Officer  to wait.  Thus this\t fact is not
\nproved by any independent witness.\n<\/p>\n
     On the  other hand\t the fact  that Ghulam Mohiuddin did
\nnot respond  to the  call even\tthough he was instructed, as
\nthe petitioner\twould have us believe, is admitted even by a
\nwitness of  the petitioner, namely, P.W. 4 Ghulam Qadir Mir,
\nwho deposed as follows:\n<\/p>\n
\t  “At the  time when  the scrutiny of the nomination
\n     paper of  Ali Akbar  Khan was  taken up, he himself was
\n     not present  there. His proposer Ghulam Mohi-ul-Din was
\n     present there.  The name  of Ali  Akbar Khan was called
\n     out but  no one  responded and so the Returning Officer
\n     wrote down\t that  the  candidate  was  absent  and\t his
\n     nomination paper  was being  rejected. In\tmy  presence
\n     nothing else happened there.”\n<\/p><\/blockquote>\n
It would  therefore appear from the evidence of this witness
\nthat even  though Ghulam Mohiuddin was present he did not at
\nall respond  when the name of the petitioner was called out.
\nThis knocks  the bottom\t out of the story put forward by the
\npetitioner that\t Ghulam Mohiuddin had been instructed to ask
\nthe Returning Officer to wait or that Ghulam Mohiuddin stood
\nup and\trequested the  Returning Officer  to  wait  for\t the
\npetitioner. Thus  the entire  story given  out by P.Ws. 1, 2
\nand 6  on this\tpoint is  falsified by\tone of the witnesses
\nexamined by the petitioner himself.\n<\/p>\n
     There  is\t yet  another\tcircumstance  which   throws
\nconsiderable  doubt  on\t this  part  of\t the  story  of\t the
\npetitioner. P.W.  5 Girdhari  Lal  counsel  engaged  by\t the
\npetitioner at  the  time  of  scrutiny\taccording  to  whose
\nevidence Ghulam\t Mohiuddin had signed the nomination form in
\nhis presence, was also present at the time when the scrutiny
\nof the\tnomination paper  of the petitioner was taken up and
\nin spite  of this  fact when  the name of the petitioner was
\ncalled out  and\t according  to\tthe  witness  the  Returning
\nOfficer announced  that since  he was  absent his nomination
\npaper was  rejected this  witness did not enter a protest on
\nbehalf of  his client,\tthe petitioner,\t that the  Returning
\nOfficer could  not have rejected the nomination paper on the
\nground of  the absence\tof  the\t petitioner.  This  somewhat
\nunusual conduct\t on the\t part of the witness who is a lawyer
\nof  some   experience  clearly\tshows  that  neither  Ghulam
\nMohiuddin was  present nor the petitioner was present and it
\nis therefore  extremely doubtful  if this  witness was\talso
\npresent at  the time  when the\tscrutiny of  the  nomination
\npaper of  the petitioner  was  taken  up  by  the  Returning
\nOfficer.\n<\/p>\n
     As against\t this contradictory  and discrepant evidence
\nthere is  consistent evidence  of the  appellant’s witnesses
\nR.Ws. 1,  2,  3\t and  4\t to  the  effect  that\tneither\t the
\npetitioner nor\this proposer  Ghulam Mohiuddin\twas  present
\nwhen the  scrutiny of the nomination paper of the petitioner
\nwas taken up. R.W. 3 is the Returning Officer himself and he
\nappears to  us to be an absolutely independent witness being
\na high Government officer of sufficient experience and there
\nis abso-\n<\/p>\n
9<\/span><\/p>\n
lutely no  reason for  him to  depose  falsely\tagainst\t the
\npetitioner. The Returning officer stated thus:\n<\/p>\n
\t  “When in  spite  of  repeated\t calls\tneither\t the
\n     petitioner nor his proposer turned up before me, then I
\n     began to  write out  the  order  on  the  back  of\t the
\n     nomination form.”<\/p><\/blockquote>\n
     R.W. 1  Mohammad Anwar  Shah Masoodi also appears to be
\nan independent witness who was an active Congress worker but
\nhe did\tnot  see  eye  to  eye\twith  the  Congress  on\t the
\ncandidature of\tMohd Yunis for the constituency in question.
\nThere is  nothing to  show that\t this witness was in any way
\ninterested in the appellant. This witness also categorically
\nstated that  neither the  petitioner nor the proposer of the
\npetitioner turned  up at  the time  when  the  name  of\t the
\npetitioner was called out.\n<\/p>\n
     R.W. 2  Ghulam Hassan  Malik who  was also\t one of\t the
\ncandidates from\t the Karnah Assembly Constituency and who is
\na lawyer  also corroborated  the evidence  of the  Returning
\nOfficer and of R.Ws. 1 & 3 that no one stood up on behalf of
\nthe petitioner\twhen the  name of  the petitioner was called
\nout and\t that the  proposer of\tthe petitioner\twas also not
\npresent at  that time  in the room. This witness has further
\nstated that no one brought it to the notice of the Returning
\nOfficer that  the petitioner  was ill  or that\the would  be
\ncoming soon.  The evidence  of the witnesses examined by the
\nappellant, therefore,  is fully corroborated by the evidence
\nof P.W.\t 4 Gulam  Qadir Mir  a witness\tof the petitioner as
\nshown above.\n<\/p>\n
     Furthermore we  find it  difficult to  believe why\t the
\nReturning Officer  who\twas  an\t independent  person  and  a
\nGovernment Officer  would refuse  to wait for the petitioner
\nif his\tattention was  really drawn  to the  fact  that\t the
\npetitioner was ill and had gone to attend the call of nature
\nby Ghulam Mohiuddin or any body on behalf of the petitioner.
\nThis fact,  therefore, clearly\tshows that  the case  of the
\nappellant that\tneither the  petitioner nor his proposer was
\npresent at  the time  when the\tscrutiny of  the  nomination
\npaper of  the petitioner  was taken  up is  true.  Even\t the
\nlearned Judge  is also\tinclined to  accept this part of the
\ncase of the appellant. On a consideration of the evidence of
\nthe parties  referred to above we are clearly of the opinion
\nthat the  petitioner has  failed to  prove that\t at the time
\nwhen the  scrutiny of  his nomination  paper was taken up by
\nthe Returning  Officer either the petitioner or his proposer
\nGhulam Mohiuddin  was present  and made\t any request  to the
\nReturning Officer  to wait  which was  not acceded to by the
\nReturning Officer.\n<\/p>\n
     Apart from\t the interested testimony of P.W. 1, 3 and 6
\nthat  the   petitioner\thad  submitted\ta  petition  to\t the
\nReturning Officer  which was  torn out\tby him\tthere is  no
\nreliable evidence  to prove  this fact.\t To begin with, this
\nfact is\t not at\t all mentioned even in the election petition
\nfiled by the petitioner even after amendment. The petitioner
\nadmits in  his statement  that he  did not mention this fact
\nwhile instructing  his lawyer.\tFurthermore, if\t indeed\t the
\nReturning Officer  actually behaved  in the  manner  as\t the
\npetitioner would have us believe, then it was a very serious
\nmatter and the petitioner is not likely to have
\n10<\/span>
\nslept over  the\t matter\t but  would  have  filed  a  regular
\ncomplaint  against  the\t Returning  Officer  to\t his  higher
\nsuperiors. In fact when there was a delay of only one day in
\nthe giving of the copy of the rejection order the petitioner
\nmade a\tgreat fuss  and furore\tover this petty lapse. Is it
\npossible to  believe that  the petitioner would sit quiet if
\nthe Returning  Officer had behaved in such a manner with him
\nby tearing  off the  petition which  was  submitted  to\t the
\nReturning Officer  ? Apart from that P.W. 3 Mohammad Maqbool
\nMir at\tp. 87 of the Paper Book has clearly admitted that in
\nhis presence  no petition was filed by Ali Akbar Khan before
\nthe Returning Officer. Even P.W. 5 who was the lawyer of the
\npetitioner stated  that he  cannot say\tthat Ali  Akbar Khan
\npresented any  petition before\tthe Returning  Officer which
\nthe latter  tore off.  P.W. 4  also says that he did not see
\nthe petitioner Ali Akbar Khan or his proposer presenting any
\napplication to\tthe Returning  Officer which the latter tore
\noff. Thus  the mischievous allegation made by the petitioner
\nagainst the  Returning Officer\tis completely  disproved not
\nonly from  his own  conduct but\t also by the evidence of his
\nown witnesses as discussed above.\n<\/p>\n
     Finally even  though a very serious allegation was made
\nagainst the  Returning Officer\tpersonally, yet, when he was
\ndeposing as  a witness\tfor the appellant, no suggestion was
\nput to\thim that  any petition was presented to him which he
\ntore off instead of taking any action thereon. Further while
\nP.W. 1 Ghulam Mohiuddin categorically stated in his evidence
\nthat the  petition which  was  submitted  to  the  Returning
\nOfficer was  scribed by\t Abdul Ahad the petition writer, yet
\nthe petitioner\tmade no\t attempt to  examine Abdul  Ahad  in
\norder  to   prove  this\t  part\tof   his  case.\t  In   these
\ncircumstances, therefore,  we disbelieve  this part  of\t the
\ncase of the petitioner that he had filed any petition to the
\nReturning Officer  for reopening  the  order  rejecting\t his
\nnomination paper.  It seems to us that this allegation was a
\nmade up\t story and appears to have been invented in order to
\nmake out  a case  that\tthe  Returning\tOfficer\t was  biased
\nagainst the  petitioner and that is why the nomination paper
\nof  the\t petitioner  was  illegally  rejected  by  him.\t The
\npetitioner has\thowever miserably  failed to prove this part
\nof the\tcase. If  this story  is found to be false, it would
\nalso demonstrate  the falsity of the main allegation made by
\nthe petitioner regarding the overwriting on the signature of
\nGhulam Mohiuddin  as also  interpolation in the order passed
\nby the\tReturning Officer  rejecting the nomination paper of
\nthe petitioner.\n<\/p>\n
     This brings  us now to the question as to the nature of
\nthe order  passed by  the Returning Officer which is Ext. RW
\n3\/3. Before,  however, taking  up  this\t matter\t it  may  be
\nnecessary to dispose of the case of the petitioner regarding
\nthe overwriting\t alleged to  have been\tmade subsequently on
\nthe signature  of Ghulam  Mohiuddin on\tthe nomination paper
\nExt. PW 5\/2. The definite case of the petitioner was that at
\nthe time  when the  nomination paper  was filed\t before\t the
\nReturning Officer  R.W. 3,  or\teven  at  the  time  of\t the
\nscrutiny on  February 9,  1972, there  was no overwriting at
\nall which  appears to  have been  made subsequently.  On the
\nother hand the case of the appellant is that the overwriting
\nwas  already   there  from   before  and   in  fact  it\t was
\ndeliberately made so as to afford a ground to the peti-\n<\/p>\n
11<\/span><\/p>\n
tioner to set aside the election of the appellant in case he
\nwas duly  elected. It  was suggested  that this\t lacuna\t was
\ndeliberately left  so as  to invite the Returning Officer to
\nreject the  nomination paper  and then use this infirmity to
\nupset the election of the appellant. In support of this case
\nthe appellant relied upon the following circumstances:\n<\/p>\n
     (i) that  the petitioner  was a mere covering or shadow
\ncandidate of  the Congress  and was not at all interested in
\ncontesting the election;\n<\/p>\n
     (ii) that\tonce the  nomination paper of Mohd Yunis who
\nwas the\t official candidate of the Congress was accepted the
\npetitioner  was\t not  at  all  interested  in  pursuing\t his
\nelection and  it was  for this reason that when the scrutiny
\nof the\tnomination paper  of the  petitioner  was  taken  up
\nneither the  petitioner nor  his proposer was present and an
\nimaginary story was invented that the petitioner was ill and
\nhad gone  to attend  the call of nature and Ghulam Mohiuddin
\nthe proposer  asked the\t Returning Officer  to wait  but  he
\nrejected the nomination paper of the petitioner; and\n<\/p>\n
     (iii) that\t P.W. 1 Ghulam Mohiuddin the proposer of the
\npetitioner has\tin  an\tunguarded  moment  admitted  in\t his
\nstatement that on the very day when the nomination paper was
\nrejected i.e.  on February  9, 1972, the petitioner informed
\nthe witness  that he  will file\t a case in the Court against
\nMohd Yasin the appellant. P.W. 1 deposed thus:\n<\/p>\n
\t  “The petitioner  had only  then informed  me after
\n     the rejection  i.e. on 9-2-1972 that he will now file a
\n     case in the Court against Mohammad Yasin respondent.”\n<\/p><\/blockquote>\n
This statement clearly lets the cat out of the bag and shows
\nthat the  petitioner’s intention  really was  to  prepare  a
\nground for setting aside the election of the appellant if he
\nwas  duly   elected.  Unless   this  was   so,\tit   is\t not
\nunderstandable why  the petitioner  should have\t made such a
\nstatement to  P.W. 1  on the  date when the nomination paper
\nwas rejected  and when\the obviously did not know whether or
\nnot the appellant would succeed in the election.\n<\/p>\n
     We shall  now deal\t with each  of\tthese  circumstances
\nrelied upon by the appellant in support of his case that the
\nentire story  of overwriting  etc.  was\t a  figment  of\t the
\nimagination of\tthe petitioner’s  mind and perhaps the whole
\nthing was  stage-managed  so  as  to  invite  the  Returning
\nOfficer to reject the nomination paper of the petitioner.\n<\/p>\n
     The appellant  has clearly\t stated in his evidence that
\nthe petitioner\twas  merely  a\tcovering  candidate  of\t the
\nCongress and  was put  up only as a shield to take the place
\nof Mohd\t Yunis if  the nomination  paper of  Mohd Yunis\t was
\nrejected. R.W. 1 who, as we have already pointed out, was an
\nindependent witness and was an active worker of the Congress
\nat  one\t time  has  also  categorically\t asserted  that\t the
\npetitioner was\ta covering  candidate of  the Congress.\t The
\nwitness stated thus:\n<\/p>\n
\t  “The petitioner  was a  candidate set\t up  by\t the
\n     Congress that  is to  say he  was a covering candidate.
\n     The congress  had given  the mandate  to Kh. Mohd Yunis
\n     but the latter
\n12<\/span>
\n     had set  up the  petitioner as  a candidate  by way  of
\n     precaution.”\n<\/p><\/blockquote>\n
The evidence of this witness appears to have a ring of truth
\nin it.\tHe has clearly stated that he did not agree with the
\nCongress Organization when a mandate was given to Mohd Yunis
\nto stand  from the  Assembly constituency of Karnan, because
\nin his\topinion Mohd Yunis had lost his popularity and there
\nwas little  chance of  his being  elected. The result of the
\nelection demonstrated  that the apprehension of this witness
\nwas undoubtedly\t correct, because  while the  appellant\t was
\nduly  returned,\t  Mohd\tYunis\twas   defeated.\t  In   these
\ncircumstances we  do not  see any  reason  to  distrust\t the
\nevidence of this witness on this point.\n<\/p>\n
     R.W. 2  Gulam Hassan  Malik who was a lawyer and also a
\ncandidate has also stated that the petitioner Ali Akbar Khan
\nwas a covering candidate of Mohd Yunis.\n<\/p>\n
     The  appellant   also  in\this  evidence  categorically
\nasserted that the petitioner was a covering candidate of the
\nCongress for Mohd. Yunis. It is true that the petitioner has
\nnot admitted this fact, but the somewhat contradictory stand
\ntaken by  him on  this\tpoint  clearly\tshows  that  he\t was
\nundoubtedly a  covering candidate.  The witness (petitioner)
\nsaid that if his nomination paper had been accepted he would
\nnot have  contested as\tan independent\tcandidate but he had
\nbeen assured  that if the nomination paper of Mohd. Yunis as
\nalso of\t the petitioner\t were accepted then the Congress was
\nto decide  as to who would contest the election. At the same
\ntime  the  petitioner  admitted\t that  the  mandate  of\t the
\nCongress was  given to\tMohd Yunis prior to the filing up of
\nthe nomination forms. Indeed if the mandate was given by the
\nCongress party\tto Mohd.  Yunis alone,\tthe  petitioner\t was
\nbound to  be  a\t dummy\tcandidate  only.  Another  intrinsic
\ncircumstance that  supports this  fact is  that\t while\tMohd
\nYunis and  other candidates  filed a  number  of  nomination
\npapers so  that if one of them was rejected on the ground of
\nany defect  or infirmity  the remaining nomination forms may
\nbe accepted  and the candidature of the candidates would not
\nrun into  difficulty, the  petitioner admittedly  filed only
\none nomination\tpaper and did not think it necessary to file
\nanother nomination  paper. These  facts taken  together with
\nthe subsequent\tconduct of  the petitioner  and his proposer
\nGhulam Mohiuddin  in not  being present\t at the\t time of the
\nscrutiny of  the nomination  paper  as\tfound  by  us  lends
\nsufficient support  to the  case of  the appellant  that the
\npetitioner was merely a dummy candidate.\n<\/p>\n
     As regards\t the  other  circumstances  that  after\t the
\nnomination paper of Mohd. Yunis was accepted, the petitioner
\nwas not at all interested in fighting the elections, we find
\nthat  there   is  overwhelming\t evidence  to  support\tthis
\ninference.  We\thave  already  pointed\tout  that  from\t the
\nevidence led  by the  parties it  has been  established that
\nneither the  petitioner nor his proposer were present at the
\ntime when  the scrutiny\t of nomination paper was taken up by
\nthe  Returning\t Officer  on  February\t9,  1972.  In  these
\ncircumstances, therefore.  it follows as a logical corollary
\nthat the  story of the petitioner that a request made to the
\nReturning Officer  by  Ghulam  Mohiuddin  to  wait  for\t the
\npetitioner or
\n13<\/span>
\nthat any  petition was\tfiled before  the Returning  Officer
\nwhich was  torn by  him is  a complete\tmyth  and  has\tbeen
\ninvented to  give credence to the made up story bolstered up
\nby the\tpetitioner.  Another  intrinsic\t circumstance  which
\nshows that  the petitioner  was not  at\t all  interested  in
\npursuing his  election is  the fact  that the  two important
\npersons who  were very\tmuch interested\t in  his  nomination
\npaper not  being rejected  did not  lodge any protest before
\nthe Returning  Officer or  took the  trouble of\t drawing the
\nattention of the Returning Officer that the nomination paper
\ncould not  be rejected due to the absence of the petitioner.
\nOne of\tthese persons  was no  one else but Girdhari Lal the
\ncounsel of the petitioner himself. According to his evidence
\nhe knew\t full well  that P.W.  1 Ghulam Mohiuddin had signed
\nthe nomination\tpaper in  his  presence\t and  yet  when\t the
\nnomination paper  was taken  up for scrutiny he did not care
\nto tell\t the Returning\tOfficer that  as  the  proposer\t had
\nsigned in  his presence\t there was  no question of rejecting
\nhis nomination\tpaper. Similarly  Mohd. Yunis  who  was\t the
\nofficial candidate  of the Congress also remained completely
\nsilent and  did not  draw the  attention  of  the  Returning
\nOfficer when  the nomination paper of the petitioner who was
\nalso a\tCongress candidate  was rejected.  All these  facts,
\ntherefore, lead\t to  the  inescapable  conclusion  that\t the
\npetitioner was\tnot at\tall  interested\t in  contesting\t the
\nelection  and\tby  his\t deliberate  conduct  he  created  a
\nsituation in which the nomination paper could be rejected so
\nthat if\t necessary he  could use  this lacuna  to upset\t the
\nelection of the appellant.\n<\/p>\n
     As regards\t the last  circumstance,  namely,  that\t the
\nwhole thing  appears to\t have been  stage-managed  by  Mohd.
\nYunis in  order to  furnish a  ground for  setting aside the
\nelection of  the appellant in case he was elected appears to
\nbe probable,  particularly in  view of the admission made by
\nP.W. 1\tGhulam Mohiuddin  to which  a reference\t has already
\nbeen made. The best person to explain these facts would have
\nbeen Mohd. Yunis himself and the petitioner has not examined
\nhim as\ta witness  at all.  It appears\tfrom the order-sheet
\nthat Mohd.  Yunis was  summoned and  he was  present but the
\npetitioner did\tnot choose  to examine\thim. It\t seems to us
\nthat Mohd. Yunis being fully aware that he was the architect
\nof the whole drama did not want to face the Court.\n<\/p>\n
     Apart from\t this circumstance,  the evidence led by the
\npetitioner on  the question  that there was some overwriting
\nin the\tsignature of his proposer P.W. 1 Ghulam Mohiuddin on
\nthe nomination\tform subsequent\t to the date of the scrutiny
\nis far from convincing.\n<\/p>\n
     In view of our finding that neither the petitioner P.W.
\n6 nor  Ghulam Mohiuddin\t P.W. 1\t were present on February 9,
\n1972 when  the nomination  paper of the petitioner was taken
\nup  for\t  scrutiny  by\tthe  Returning\tOfficer,  these\t two
\nwitnesses are  not at  all competent to depose as to whether
\nor not\ton that\t date  there  was  any\toverwriting  in\t the
\nsignature of  P.W. 1. In these circumstances, therefore, the
\nevidence of  P.W. 1  and 6  will have to be excluded on this
\npoint. Even  so it  will be  interesting to  note  that\t the
\npetitioner  P.W.   6  does   not  say  that  there  was\t any
\noverwriting on\tthe signature  of P.W. 1 Ghulam Mohiuddin on
\nthe nomination\tform but  he states that on a perusal of the
\nnomination paper  it appears  that some\t ink was spread over
\nhis
\n14<\/span>
\nsignature.  An\t examination  of  the  signature  of  Ghulam
\nMohiuddin would\t reveal to  the naked  eye that\t there is no
\nquestion of  the spreading of any ink over the signature but
\nwhat has been done is that there is clear overwriting on the
\nsignature.\n<\/p>\n
     P.W. 2  Qazi Mohammad  Abdullah appears  to be  a close
\nacquaintance  of  the  petitioner  and\thad  helped  him  in
\nengaging the  services of  Girdhari Lal\t for the  purpose of
\nfilling up  the nomination  paper which was also done at his
\nown house.  This witness  also states  that Ghulam Mohiuddin
\nhad affixed his signature in his presence with the fountain-
\npen of\tthe petitioner.\t He further asserts that on the date
\nof his\tdeposition he  found that  there was  an overwriting
\nover the signature of Ghulam Mohiuddin. This witness was one
\nof  the\t proposers  of\tMohd.  Yunis  who  had\tset  up\t the
\npetitioner as  his dummy  candidate as\theld by us. In these
\ncircumstances, therefore,  this witness\t was interested\t and
\nhas tried  to help  the petitioner. Moreover he does not say
\nthat on February 9, 1972 when the scrutiny of the nomination
\npaper of  the petitioner  was  taken  up  by  the  Returning
\nOfficer he  had an  opportunity to  inspect  the  nomination
\npaper in order to find out whether there was any overwriting
\non the\tsignature. His evidence, therefore, does not exclude
\nthe possibility\t of the\t over writing having been made after
\nGhulam Mohiuddin  had signed  the nomination  paper  at\t the
\nresidence of the witness and before the nomination paper was
\nfiled or  its scrutiny\ttaken up.  Furthermore, the  witness
\nadmits that  he is  also a  Congress  worker  and  knew\t the
\npetitioner for\tthe last  four\tyears.\tFor  these  reasons,
\ntherefore, in  the first  place the evidence of this witness
\nis interested,\tand secondly it does not appear to be of any
\nassistance to the petitioner.\n<\/p>\n
     The other\twitness examined  on this  point is  P.W.  3
\nMohd. Maqbool Mir. A perusal of the evidence of this witness
\nconvinces us  that he  is  an  utterly\tunreliable  witness.
\nAlthough a lawyer of sufficient experience the witness seems
\nto have\t scant regard for the purity of the legal profession
\nor the norms of professional ethics. He was a counsel of the
\nappellant and  had been engaged by him at the time of filing
\nof the\tnomination paper and its scrutiny. He was present on
\nFebruary 9,  1972 before  the Returning Officer on behalf of
\nthe appellant.\tHe further admits that he had also agreed to
\nbecome the  agent of  other contesting candidates. The order
\nExt. RW\t 3\/3 clearly  mentions that  the witness  did  raise
\nobjection  on\tbehalf\tof   the  appellant   regarding\t the
\ngenuineness of\tthe signature of P.W. 1 Ghulam Mohiuddin and
\nyet the\t witness who appears to have transferred his loyalty
\nto the\tpetitioner deposes  with impunity  that he  did\t not
\nraise  any   objection\tregarding  the\tgenuineness  of\t the
\nsignature of  Ghulam Mohiuddin\tand that the overwriting did
\nnot exist  at the  time of the scrutiny. The dramatic manner
\nin which  he has  made his  appearance as  a witness for the
\npetitioner speaks  volumes against  the credibility  of\t his
\ntestimony. He  admits that  he had never appeared before the
\nHigh Court  and he  happened to come to Srinagar on November
\n13, 1972  to make  some purchases  for\this  uncle  who\t was
\nproceeding on a pilgrimage to Mecca. As he happened to be in
\nthe Court  premises his\t name was  called  out\tand  he\t was
\ndirected to  appear  as\t a  witness  without  receiving\t any
\nsummons from the Court. The
\n15<\/span>
\nappellant has  categorically stated  in his evidence that he
\nhad informed  this witness that he might have to be examined
\non his behalf in the trial before the High Court and yet the
\nwitness knowing\t full well  that he was the retained counsel
\nof  the\t  appellant  readily   agreed  to   depose  for\t the
\npetitioner. Finally  the witness  admits that  he deals with
\nabout 100  cases per  month and\t yet he\t does  not  pay\t any
\nincome-tax. In\tview of\t these circumstances,  therefore, we
\nare not\t in a position to place any reliance on the evidence
\nof this\t witness. In  fact the\tlearned Judge  was also\t not
\ninclined to place implicit reliance on the testimony of this
\nwitness and in this connection the learned Judge observed as
\nfollows:\n<\/p>\n
\t  “There have  been great  comments made with regard
\n     to the  veracity and  dependability of the statement of
\n     this witness  and if  the matter had rested only on the
\n     testimony of this witness, then it could have been said
\n     that some\thow or\tother this witness had changed sides
\n     and has  come to  depose  but  his\t testimony  and\t the
\n     statements made  by him  have to be judged in the light
\n     of the  other evidence  and the facts and circumstances
\n     of the case.”<\/p><\/blockquote>\n
     We are  now left  with the\t evidence of P.W. 5 Girdhari
\nLal. This  witness was admittedly counsel for the petitioner
\nand was\t therefore thoroughly  interested in  supporting the
\ncase of the petitioner. The witness has also stated that the
\nnomination paper  bore the signature of Ghulam Mohiuddin but
\nat the\ttime when he was deposing there was some overwriting
\nin his\tsignature. The\twitness says  that he was present at
\nthe time  of the  scrutiny and\thad inspected the nomination
\nform and  found that  the signature  of Ghulam Mohiuddin did
\nnot contain  any overwriting  at  that\ttime.  He,  however,
\nadmits that  the petitioner  Ali Akbar\tKhan was not present
\nwhen the  scrutiny was taken up and his nomination paper was
\nrejected by the Returning Officer. Indeed if this was so, as
\na retained  counsel for\t the petitioner,  it was his duty to
\npoint out  to the  Returning officer that under s. 47 of the
\nAct the\t Returning officer  was\t not  legally  competent  to
\nreject the  nomination paper  merely on\t the ground  of\t the
\nabsence of  the petitioner  or his  proposer.  He,  however,
\nremained absolutely  silent. This  clearly shows that either
\nhe was aware that the overwriting on the signature of Ghulam
\nMohiuddin was  already there  at the time of the scrutiny or
\nthat he\t did not  know about  it, nor did he care to examine
\nthe nomination\tpaper at  that time. The witness admitted at
\np.  106\t of  the  Paper\t Book  that  the  rejection  of\t the
\nnomination paper  on  the  ground  of  the  absence  of\t the
\ncandidate or  his proposer was in his opinion improper under
\ns. 47  of the  Act. In\tspite of  this fact it is not at all
\nunderstandable why  he did  not draw  the attention  of\t the
\nReturning officer to this fact, if the Returning officer had
\nrejected the  nomination paper\tmerely on  the ground of the
\nabsence\t of   the  petitioner  or  his\tproposer.  In  these
\ncircumstances, therefore,  there  appears  to  have  been  a
\nmethod in  his silence which indicate that he was a privy to
\nthe whole  show put  up by  the petitioner  and wanted\tthat
\nsomehow or  the other the nomination paper of the petitioner
\nmay be\timproperly rejected  so as to afford a ground to his
\nclient to
\n16<\/span>
\nupset the  election of\tthe successful\tcandidate. In  these
\ncircumstances, therefore,  we are not in a position to place
\nany reliance on the evidence of this witness.\n<\/p>\n
     This is all the evidence that the petitioner has led in
\nsupport of his case that the overwriting on the signature of
\nGhulam Mohiuddin  was made subsequent to the scrutiny of the
\nnomination form.\n<\/p>\n
     As against this there is clear and categorical evidence
\nof the appellant Mohd. Yasin Shah R.W. 4 who stated thus:\n<\/p>\n
\t  “After  examination  of  the\tnomination  form,  I
\n     raised objection  that the\t signature of  the  proposer
\n     appeared to  be doubtful  and I also said that probably
\n     it is  not his  signature. No one at that time appeared
\n     to rebut  this objection  of mine and to assert that it
\n     was the signature of the proposer.”\n<\/p><\/blockquote>\n
His evidence was fully corroborated by the Returning officer
\nAbdul Rehman Mir, R.W. 3, who has clearly stated thus:\n<\/p>\n
\t  “The nomination  form already marked Ext. P.W. 5\/2
\n     was presented  before me in the same condition in which
\n     it is  at present.\t I was also the Returning officer of
\n     Lolab,  Kupwara  assembly\tconstituencies\tbesides\t the
\n     Karnah assembly constituency.”\n<\/p><\/blockquote>\n
We have\t already pointed  out that  R.W. 3 is an independent
\nwitness being  a high  Government officer.  The\t allegations
\nmade by\t the petitioner\t against him  have not\tat all\tbeen
\nsubstantiated and appear to be totally unfounded as found by
\nus. There is neither any suggestion nor any evidence to show
\nthat he was in any way interested in the appellant or biased
\nagainst the  petitioner. On  the other hand, R.W. 3 being an
\nindependent  Government\t officer  would\t naturally  have  no
\nleanings  towards   either  party.   Furthermore,  the\tmost
\nimportant question  to be determined was, if any overwriting
\nwas made, who would be interested in making the same ? It is
\nobvious that  the Returning officer had absolutely no motive
\nto make\t any overwriting  on the  signature of\tP.W. 1.\t The
\nReturning officer  has also  admitted in  his statement that
\nafter  the   scrutiny  the   record  was  deposited  by\t him
\npersonally with the District Treasury Officer, Baramulla, as
\nper the\t directions of\tthe Deputy  Commissioner, Baramulla,
\nwho was\t also  the  District  Eelection\t officer.  In  these
\ncircumstances, therefore,  why should  the Returning officer
\nhave taken the grave risk of tampering with the record after
\nthe same was deposited with the District Treasury officer on
\nthe directions\tof the\tDeputy Commissioner,  Baramulla, and
\nwhy should  he at all do it ? Perhaps it was for this reason
\nthat the learned Judge did not like to go into this question
\nat all\tand refrained  from making  any observation  on this
\naspect\tof   the  matter  but  casually\t observed  that\t the
\noverwriting might have been brought into existence after the
\nscrutiny. We  think that  there is absolutely no evidence to
\nsupport this fact.\n<\/p>\n
     Finally there  is another\tintrinsic circumstance which
\nshows that  the overwriting  must have\tbeen there  when the
\nnomination paper
\n17<\/span>
\nwas filed  or was  taken up  for scrutiny  by the  Returning
\nOfficer. The  order of\tthe Returning  officer Ext. R.W. 3\/3
\nclearly\t shows\tthat  an  express  objection  was  taken  by
\nMohammad Maqbool  Mir on  behalf of  Mohammad Yasin that the
\nsignature  of\tthe  proposer\twas  not   genuine.  If\t the
\noverwriting would  not have been there, there was absolutely
\nno occasion  for the  appellant\t to  have  raised  any\tsuch
\nobjection. We have examined the signature purported to be of
\nGhulam Mohiuddin,  P.W. 1,  and we  find that there is clear
\nover-writing by\t which various\tletters of  the signature of
\nGhulam Mohiuddin  have been  tampered  with.  The  Returning
\nofficer has  also deposed  that he  had given  time  to\t the
\ncandidates to  examine the  nomination papers at the time of
\nthe scrutiny  in order\tto submit  objections, if  any.\t The
\nappellant and  his counsel  examined the nomination paper of
\nthe petitioner\tand did\t raise an  objection  regarding\t the
\ngenuineness of\tthe signature  of his  proposer P.W. 1. This
\nobjection has  been recorded  in the  order  passed  by\t the
\nReturning Officer.  In view of these circumstances we see no
\nreason at  all to  distrust the\t evidence of  the  Returning
\nofficer R.W. 3 on the point that the nomination paper was in
\nthe same  condition at the date of the scrutiny as it was on
\nthe date when he was deposing.\n<\/p>\n
     There is  yet another  matter on which there appears to
\nbe  a\tserious\t controversy   between\tthe   parties.\t The
\npetitioner’s case was that the appellant Mohd. Yasin had not
\nat all\traised any  objection  to  the\tgenuineness  of\t the
\nsignature of P.W. 1. Ghulam Mohiuddin on the nomination form
\nand  that   the\t  aforesaid   objection\t  was\tsubsequently
\nincorporated by\t the  Returning\t officer  in  his  order  by
\ncommitting interpolation.  On the other hand the appellant’s
\ndefinite case was that after inspecting the nomination paper
\nhe raised  a clear  objection before  the Returning  officer
\nregarding the  genuineness of  the signature of the proposer
\nGhulam Mohiuddin and this objection was not only recorded by
\nthe Returning  officer\tat  that  very\ttime  but  was\talso
\nsustained.  The\t case  of  the\tappellant  is  substantially
\ncorroborated by\t the recitals  in Ext.\tR.W. 3\/3  the  order
\npassed by the Returning officer which must be presumed to be
\ngenuine as  there is  nothing to  show that  it\t was  either
\ninterpolated or\t brought into  existence  subsequently.\t The
\npetitioner’s  case,   however,\trests  purely  on  the\toral
\nevidence of  a few  interested witnesses.  To begin with, so
\nfar as\tthe evidence  of P.W.  1 Ghulam Mohiuddin and P.W. 5
\nThe  petitioner\t is  concerned\tthe  same  would  be  of  no
\nassistance in  deciding this  question because as held by us
\nthese two  persons were\t not present  at  the  time  of\t the
\nscrutiny and  therefore they  were not\tcompetent to  depose
\nwhether or  not any  objection was  taken by  the  appellant
\nregarding  the\t genuineness  of  the  signature  of  Ghulam
\nMohiuddin. It  is true that P.W. 3 Mohammed Maqbool Mir. who
\nwas the\t counsel for  the appellant has stated that he never
\nraised any  objection on behalf of the appellant at the time
\nof the\tscrutiny. We  have already discussed the evidence of
\nthis witness  and held\tthat he\t was an\t utterly uncreliable
\nwitness\t for  the  reasons  which  we  have  already  given.
\nMoreover he  appears to\t be a  turn-coat type of witness and
\nhas changed  sides as observed by the learned Judge. Finally
\nhis evidence  is clearly  contradicted by  the document Ext.
\nR.W. 3\/3  wherein it  is clearly  mentioned that the witness
\nMohd. Maqbool did raise objection regarding
\n18<\/span>
\nthe genuineness\t of the signature of P.W. 1 Ghulam Mohiuddin
\non behalf  of the  appellant before the Returning officer at
\nthe time of the scrutiny. In these circumstances, therefore,
\nwe are\tnot able  to place  any reliance  on the evidence of
\nthis witness.\n<\/p>\n
     The last witness on the point is P.W. 4 Gulam Qadir Mir
\nwho has\t no doubt  stated that no objection was taken by any
\nbody at\t the concerned\ttime. This  witness, however, was an
\nagent of a different candidate and was not at all interested
\nin the\tappellant and  as, according  to him, he was at some
\ndistance from  the Returning  officer it is possible that he
\nmay not\t have heard  the objection  taken by  the  appellant
\nbefore the  Returning officer.\tAt any rate, the evidence of
\nthis witness  by itself\t is not sufficient to demolish other
\ncircumstances  appearing   in  the  case,  particularly\t the
\nrecitals in the documents R.W. 3\/3.\n<\/p>\n
     As against\t this, R.W.  1,\t who,  as  we  have  already
\npointed\t out,\tis  an\tindependent  witness,  and  being  a
\ncandidate himself  was present at the time when the scrutiny
\nof the\tnomination took\t place, and  his interest  was by no
\nmeans identical\t with the  appellant and,  therefore, had no
\nreason to depose falsely to help the appellant. This witness
\nhas categorically stated thus:\n<\/p>\n
\t  “Respondent No.  1 (appellant) at that time raised
\n     an objection  that he  was challenging the signature of
\n     the proposer on the nomination paper of the petitioner.\n<\/p><\/blockquote>\n
     *\t       *\t *\t   *\t     *\t       *
\n\t  When there  was an  objection\t to  the  nomination
\n     paper  of\tthe  petitioner\t by  Mohd.  Yaseen  then  he
\n     (Returning officer)  scrutinised the  nomination  paper
\n     and passed\t an order which was announced in the absence
\n     of the petitioner.”\n<\/p><\/blockquote>\n
Similarly, R.W.\t 3 the\tReturning Officer  has also  clearly
\ndeposed that  an objection was raised by the appellant which
\nwas recorded  in his  order. The  evidence of  R.Ws. 1 and 3
\nfinds ample  corroboration from the recitals in the document
\nExt. R.W.  3\/3. Apart  from this  R.W. 2  who is  no doubt a
\ncounting agent\tof the\tappellant has  testified to the fact
\nthat the  appellant had\t raised an  objection regarding\t the
\ngenuineness of\tthe signature of P.W. 1 Ghulam Mohiuddin. As
\nthe  evidence\tof  this  witness  is  corroborated  by\t two
\nindependent witnesses  R.Ws. 1\t& 3  we\t see  no  reason  to
\ndisbelieve him. Lastly there is the categorical statement of
\nthe appellant  himself that  he did  raise an  objection. In
\nthese circumstances,  therefore, we  are satisfied  that the
\nevidence led by the appellant far out  weighs the interested
\noral   testimony   led\t by   the   petitioner.\t  In   these
\ncircumstances, therefore,  we find  that it  has been proved
\nbeyond doubt  that the\tappellant  did\traise  an  objection
\nregading the  genuineness of  the signature of P.W. 1 Ghulam
\nMohiuddin before  the Returning officer on February 9, 1972,
\nat the time of the scrutiny of nomination papers.\n<\/p>\n
     It is, therefore, established that at the time when the
\nnomination paper of the petitioner was taken up for scrutiny
\nthe overwriting on
\n19<\/span>
\nthe signature  of P.W.\t1 Ghulam Mohiuddin was already there
\nand there  is a\t strong possibility that the overwriting had
\nbeen deliberately  made at the instance of the petitioner so
\nas to furnish a ground for setting aside the election of the
\nsuccessful  candidate  if  the\tofficial  candidate  of\t the
\nCongress failed to win the election.\n<\/p>\n
     Mr. Pathak learned counsel for the petitioner submitted
\nthat a\tbare perusal  of the  order of the Returning officer
\nwould clearly  show that  there\t has  been  some  tampering.
\nBefore examining  this contention  we may  mention that from
\nthe  evidence\tand  circumstances   discussed\tabove,\t the
\nfollowing facts emerge:\n<\/p>\n
\t  (i)  that the\t petitioner was a dummy candidate of
\n\t       the Congress;\n<\/p><\/blockquote>\n
\t  (ii) that R.W.  1 Mohd.  Anwar  Shah\tMasoodi\t had
\n\t       expressed his  clear apprehension  that there
\n\t       was very\t little chance\tof Mohd.  Yunis\t the
\n\t       official candidate of the Congress to win the
\n\t       election, and,  therefore,  there  was  every
\n\t       motive for  the petitioner  to have  prepared
\n\t       some ground  for asailing the election of the
\n\t       appellant in case he was successful;\n<\/p><\/blockquote>\n
\t  (iii)that on\tthe date  of  the  scrutiny  of\t the
\n\t       nomination papers  neither the petitioner nor
\n\t       his  proposer   were   present\tbefore\t the
\n\t       Returning officer;\n<\/p><\/blockquote>\n
\t  (iv) that  at\t  the  time   of  the  scrutiny\t the
\n\t       appellant either\t personally or\tthrough\t his
\n\t       counsel definitely  raised an objection about
\n\t       the genuineness\tof the\tsignature of  P.W. 1
\n\t       Ghulam Mohiuddin on the nomination paper Ext.
\n\t       P.W. 5\/2; and\n<\/p><\/blockquote>\n
\t  (v)  that the overwriting on the signature of P.W.\n<\/p><\/blockquote>\n
\t       1 Ghulam\t Mohiuddin was\tpresent even  at the
\n\t       date of\tthe scrutiny and perhaps even on the
\n\t       date when  the  nomination  paper  was  filed
\n\t       before the Returning officer.<\/p><\/blockquote>\n
     In the  background of  these proved facts, we would now
\nexamine whether\t or not the contention raised by the learned
\ncounsel for  the petitioner  is correct. The order passed by
\nthe Returning  officer rejecting the nomination paper of the
\npetitioner which is Ext. R.W. 3\/3 runs thus:\n<\/p>\n
\t  “The candidate  and the  proposer are not present.
\n     Hence rejected,  also an  objection has  been raised to
\n     the genuineness  of the  proposer’s  signature  by\t one
\n     Mohd. Maqbool  counsel for Mohd. Yaseen Shah candidate.
\n     I could  not verify it for absence of candidate and the
\n     proposer.”\n<\/p><\/blockquote>\n
It was contended by Mr. Pathak that this order runs into two
\nparts. By  the first part of the order the Returning officer
\nappears to  have rejected the nomination paper merely on the
\nground of  the absence of the candidate and the proposer. By
\nthe second part, which
\n20<\/span>
\naccording to  the counsel for the petitioner appears to have
\nbeen  added   subsequently,  the   objection  taken  by\t the
\nappellant  regarding   the  genuineness\t of  the  proposer’s
\nsignature has  been recorded,  and even\t so,  the  Returning
\nOfficer has  not given\tany decision  on this point. We have
\nperused the  original order  passed by the Returning officer
\nvery carefully,\t but we\t find that the entire order has been
\nwritten in  the same  ink with\tthe same  pen and appears to
\nhave been  written in  one sitting. There is nothing to show
\nthat the  second part  of the  order was  added subsequently
\nbecause the  strokes of\t the letters, the ink which has been
\nused and  the general tenor of the writing appears to be the
\nsame  throughout.  In  these  circumstances,  therefore,  we
\nreject the contention of the petitioner that the second part
\nof the\torder was  added subsequently.\tWe accordingly\thold
\nthat the  allegations made  by the  petitioner\tagainst\t the
\nReturning Officer  in paragraph\t 26 of the election petition
\nare totally  unfounded\tand  the  petitioner  has  miserably
\nfailed to  prove the same. The entire order of the Returning
\nOfficer was  written in\t one sitting  and there\t can  be  no
\nquestion of  any interpolation\thaving been  made by him nor
\nhad the\t Returning Officer any motive to do so. Nevertheless
\nit is  true that  after\t having\t written  the  order  “Hence
\nrejected”, the\tReturning officer  appears to  have recorded
\nthe  fact   that  an  objection\t was  raised  regarding\t the
\ngenuineness of the proposer’s signature. For this R.W. 3 the
\nReturning officer  appears to  have given  a very convincing
\nand reasonable\texplanation.  He  says\tthat  while  he\t was
\nwriting his  order  and\t had  not  completed  the  same,  an
\nobjection was  taken by\t Mohd.\tMaqbool\t counsel  for  Mohd.
\nYaseen regarding  the genuineness  of the  signature of\t the
\nproposer. At  that time\t the clerk  had already put the seal
\nand, therefore, the Returning officer recorded the objection
\nraised by  the appellant in the space left and completed his
\norder and thereafter he signed above the seal. The Returning
\nofficer R.W. 3 in this connection stated thus:\n<\/p>\n
\t  “When in  spite  of  repeated\t calls\tneither\t the
\n     petitioner nor  his proposer turned up before me, then,
\n     I\t began to  write out  the order\t on the\t back of the
\n     nomination\t form…..After\t  the  scrutiny\t  by   them,
\n     Mohammed Yaseen  as; well\tas his\tcounsel brought this
\n     fact to my notice that the signature of the proposer on
\n     the nomination form of the petitioner was not genuine..
\n     …….. The  portion in  my order\t regarding the\tnon-
\n     appearance of the petitioner or his proposer as well as
\n     the  portion   regarding  the   objection\t about\t the
\n     genuineness  of   the  signature  were  written  by  me
\n     contemporaneously at  the time  of passing the order on
\n     the nomination  form in  respect of  the scrutiny.\t The
\n     seal is  not below my order but it is just in the midst
\n     of the  portion of\t my order and the reason for this is
\n     that at the time of the scrutiny when I was passing the
\n     order, my clerk was also standing by my side and he was
\n     affixing the  seal and  it so happened that while I was
\n     hearing the  objection in\trespect of  this  nomination
\n     form, the clerk affixed the seal at that place.”\n<\/p><\/blockquote>\n
The Returning officer further stated in his evidence that he
\nupheld the  objection of  the appellant as there was no body
\non behalf of the
\n21<\/span>
\ncandidate to  rebut the\t objection raised  by the appellant.
\nThe explanation\t given by  the Returning  Officer  is  fully
\ncorroborated by\t the  evidence\tof  the\t appellant  and\t his
\nwitnesses,  particularly  R.W.\t1,  who\t is  undoubtedly  an
\nindependent witness.  As  we  have  already  held  that\t the
\nReturning  Officer   was  an   independent  witness   and  a
\nGovernment official,  there is\tabsolutely no  reason why he
\nshould have added a part of the order subsequently.\n<\/p>\n
     It was  then contended  by Mr.  Pathak that even though
\nthe Returning  Officer recorded\t the objection\ttaken by the
\nappellant he  has not  expressed any  final opinion or taken
\nany decision  in the  matter. Our  attention was drawn to s.
\n47(2) (c) of the Act which runs thus:\n<\/p>\n
\t  “47. (2)  The returning officer shall then examine
\n     the nomination  papers and\t shall decide all objections
\n     which may\tbe made to any nomination and may, either on
\n     such objection or on his own motion, after such summary
\n     enquiry, if  any, as  he thinks  necessary, reject\t any
\n     nomination on any of the following grounds:-\n<\/p><\/blockquote>\n
     *\t       *\t *\t   *\t      *\t\t*\n<\/p><\/blockquote>\n
\t  (c) that  the signature  of the  candidate or\t the
\n     proposer on the nomination paper is not genuine.”\n<\/p><\/blockquote>\n
It was submitted that the Returning Officer has nowhere held
\nas a  fact that\t the  signature\t of  the  proposer  was\t not
\ngenuine. He has merely indicated the objection raised by the
\nappellant  but\t has  not  examined  the  validity  of\tthat
\nobjection and,\ttherefore, the\torder must be read as having
\nrejected the  nomination paper\tmerely on  the ground of the
\nabsence of  the candidate  and his proposer. It is true that
\nunder s.  47(2) (c)  which is  the only\t relevant  provision
\nwhich applies  to this case it was not open to the Returning
\nOfficer to  reject the nomination paper merely on the ground
\nof the absence of the candidate or his proposer. The learned
\nJudge seems  to have accepted the petitioner’s argument that
\non his\tinterpretation of  the\torder  and  found  that\t the
\nnomination paper  was rejected\tmerely on  the ground of the
\nabsence of the candidate and his proposer. The learned Judge
\nhas also  held that having rejected the nomination paper any
\nsubsequent observations\t which the  Returning  Officer\tmade
\nwould have  to be ignored as he became functus officio. This
\ninterpretation of  the learned Judge has been adopted by Mr.
\nPathak learned\tcounsel for  the petitioner.  On a close and
\ncareful reading\t of the order of the Returning Officer, as a
\nwhole, we are unable to agree with the interpretation put by
\nthe learned  Judge or adopted by the learned counsel for the
\npetitioner. We\thave already  pointed out  the facts  proved
\nwhich clearly  show that  at the  time\twhen  the  Returning
\nOfficer passed\tthe order he had before him the signature of
\nGhulam Mohiuddin  with an  overwriting. Both  P.W. 1  Ghulam
\nMohiuddin and  counsel for the petitioner have categorically
\nadmitted in  their statements  that  the  signature  in\t the
\npresent form  with the\toverwriting was not the signature of
\nGhulam Mohiuddin.  P.W. 1 at p. 66 of the Paper Book deposed
\nas follows:\n<\/p>\n
22<\/span><\/p>\n
\t  “Question: Do\t you accept  this  signature  to  be
\n     yours in its present form as it stands ?
\n\t  Answer: I do not accept this to be my signature in
\n     the forms as it stands at present.”\n<\/p><\/blockquote>\n
Similarly P.W.\t5 who  is counsel  for the petitioner and in
\nwhose presence\tP.W. 1\thad signed the nomination paper also
\nadmits in clear terms thus:\n<\/p>\n
\t  “In the  present form\t I do  not accept that it is
\n     the signature of Ghulam Mohi-ul-Din.”\n<\/p>\n
Thus if\t the person  who had signed the nomination paper and
\nthe lawyer in whose presence Ghulam Mohiuddin had signed the
\nnomination  paper  were\t convinced  that  the  signature  as
\noverwritten was\t not the  signature of Ghulam Mohiuddin, how
\ncan we\tfind fault with the Returning Officer if he also, on
\na  bare\t  perusal  of  the  nomination\tpaper,\tdoubted\t the
\ngenuineness  of\t  the  signature  ?  The  suspicion  of\t the
\nReturning Officer regarding the genuineness of the signature
\nof the\tproposer was  further reinforced  by the fact that a
\nspecific objection  on this  point was\ttaken by counsel for
\nthe appellant  as recorded  in the  order itself.  Thus\t the
\norder read  as a  whole clearly\t shows that  the  nomination
\npaper was rejected not only on the ground that the candidate
\nor his\tproposer was not present but also on the ground that
\nthe signature  of the  proposer on  the nomination paper was
\nnot genuine.  It is  true that the Returning Officer has not
\ngiven any  clear finding on this point, but s. 47 of the Act
\ndoes  not  require  well  reasoned  decision.  All  that  is
\nnecessary is  that the\tReturning Officer  should apply\t his
\nmind and  determine the\t question in  a summary\t manner. The
\nReturning  Officer  has,  in  the  instant  case,  indicated
\nobjection taken\t by the\t appellant regarding the genuineness
\nof the\tsignature of  the  proposer  and  has  also  clearly
\nobserved that in view of the objection it is not possible to
\nverify the signature in the absence of the candidate and the
\nproposer. Thus the absence of the candidate and the proposer
\nhas  been   used  not  for  the\t purpose  of  rejecting\t the
\nnomination paper  but for  the\tpurpose\t of  supporting\t the
\nconclusion of  the Returning  Officer that  the signature of
\nthe proposer  was not genuine. Even assuming for the sake of
\nargument that  the Returning  Officer had  in effect  and in
\nsubstance rejected the nomination paper on the ground of the
\nabsence of  the candidate  and the  proposer which was not a
\nvalid ground  for rejection  of the  nomination paper,\tthis
\ndoes not  put an  end to  the controversy. There is abundant
\nauthority for  the proposition\tthat even  if the  ground on
\nwhich the nomination paper has been actually rejected is not
\na permissible  ground, if  the successful candidate can make
\nout a  case  that  the\tnomination  paper  could  have\tbeen
\nproperly rejected  on one  of the grounds mentioned in s. 47
\nof the\tAct, the  rejection would  not be  improper and\t the
\nelection  would\t  be  upheld.  This  Court  considered\tthis
\nquestion in  N. T.  Veluswami Thevar  v. G.  Raja  Nainar  &
\nOrs.<\/a>(1) and observed as follows:\n<\/p>\n
\t  “The argument\t is that  if the jurisdiction of the
\n     Tribunal is  co-extensive with  that of  the  returning
\n     officer, then the
\n23<\/span>
\n     enquiry before it must be confined to the grounds which
\n     were urged\t before\t the  returning\t officer.  Now,\t the
\n     observations  quoted  above  were\tmade  statedly\twith
\n     reference to  R. 47, and assuming that they apply to an
\n     enquiry under s. 100(1)(c), the question still remains,
\n     what is  the jurisdiction\tof the\treturning officer in
\n     hearing  objections   to  nomination   papers   ?\t His
\n     jurisdiction is  detined in  s. 36(2), and the Tribunal
\n     must therefore  have jurisdiction\tto  decide  all\t the
\n     questions which  can be  raised under that section. The
\n     fact that\ta particular  ground which  could have\tbeen
\n     raised was\t not, in  fact, raised\tbefore the returning
\n     officer does  not put  an end  to his  jurisdiction  to
\n     decide it,\t and what  he could  have decided  if it had
\n     been raised,  could be  decided by\t the Tribunal,\twhen
\n     raised.” p. 635.\n<\/p><\/blockquote>\n
\t  “They held,  with one\t solitary exception, that it
\n     is permissible,  and indeed,  it is stated in Mengh Raj
\n     v. Bhimandas-(1952)  2 E.L.R.  301, 310-as\t settled law
\n     that  the\trejection  of  a  nomination  paper  can  be
\n     sustained on  grounds not\traised before  the returning
\n     officer. If the legislature which must be taken to have
\n     knowledge of  the law as interpreted in those decisions
\n     wanted to\tmake a departure from it, it would have said
\n     so in  clear terms,  and in  the  absence\tof  such  an
\n     expression, it  would be  right to\t interpret s. 100(1)\n<\/p><\/blockquote>\n
     (c) as  not intended  to alter  the law as laid down in
\n     those decisions.” p. 636.\n<\/p><\/blockquote>\n
\t  “The question\t now  under  consideration  came  up
\n     directly  for   decision  before\tthe  High  Court  of
\n     Rajasthan in  Tej Singh  v. Election  Tribunal, Jaipur-<\/p><\/blockquote>\n
     (1954) 9 E.L.R. 193-and it was held that the respondent
\n     to an  election petition  was entitled  to raise a plea
\n     that the  nomination of  the petitioner rejected on one
\n     ground by the returning officer was defective on one or
\n     more of  the other grounds mentioned in s. 36(2) of the
\n     Act, and  that such  a plea, if taken, must be enquired
\n     into by the Election Tribunal.” p. 637
\n\t  “An unreported judgment of the Andhra Pradesh High
\n     Court in Badrivishal Pitti v. J. V. Narsing Rao-Special
\n     Appeal No.\t of 1957-has  been cited before us, and that
\n     also takes\t the view  that in  an\tenquiry\t before\t the
\n     Election Tribunal, it is open to the parties to support
\n     an order  of rejection of a nomination paper on grounds
\n     other than\t those which  were put\tforward\t before\t the
\n     returning officer.\t We  are  in  agreement\t with  these
\n     decisions.” p. 637
\nMr. Pathak  learned counsel  for the  petitioner  sought  to
\ndistinguish this  decision on  the ground  that while  it is
\nopen to the Tribunal, or the High Court in the instant case,
\nto examine other grounds on which the nomination paper could
\nhave been rejected, yet in the present state of pleadings no
\nsuch question  appears to  have been  raised before the High
\nCourt. This argument does not appear to be factually
\n24<\/span>
\ncorrect. This  plea was specifically raised by the appellant
\nin paragraph-8\tof his\twritten statement  relevant part  of
\nwhich may be extracted thus:\n<\/p>\n
\t  “The\t answering    respondent   challenges\t the
\n     genuieness of  the signature  of the  proposer  of\t the
\n     petitioner\t which\t could\tneither\t  be  rebutted\t nor
\n     challenged by  the petitioner  or his  proposer as both
\n     were absent  and hence  the rejection of the petitioner
\n     was announced  by the  Returning Officer, who under the
\n     circumstances was\tjustified under\t section 47  of\t the
\n     R.P.  Act\t to  reject  the  nomination  paper  of\t the
\n     petitioner and  as such this rejection cannot be deemed
\n     to be  in law  as improper rejection and the petitioner
\n     cannot now\t challenge the same as there is no infirmity
\n     in the order of rejection by the Returning Officer.”\n<\/p><\/blockquote>\n
Furthermore in\tthe additional\twritten statement,  filed by
\nthe appellant after the learned Judge allowed the petitioner
\nto amend his election petition, this point was reiterated in
\nparagraph 2(iv) thus:\n<\/p>\n
\t  “That\t the   signature  of  the  proposer  on\t the
\n     nomination form  as  was  also  challenged\t before\t the
\n     Returning Officer\tis not\tgenuine and the rejection is
\n     not improper.”\n<\/p><\/blockquote>\n
In paragraph-4\tof the\tsaid additional written statement it
\nwas stated thus:\n<\/p>\n
\t  “That the  signature of  the proposer Ghulam Mohi-
\n     uddin not\tbeing genuine  on the  nomination  form\t the
\n     rejection is not improper and the petition is liable to
\n     be dismissed.”<\/p><\/blockquote>\n
     The learned  Judge had framed issue No. 1 in the widest
\npossible terms\twhich includes\trejection of  the nomination
\npaper even  on the ground that the signature of the proposer
\nwas not genuine which is undoubtedly a valid ground under s.
\n47(2) (c)  of the Act. The issue framed by the learned Judge
\nwas as follows:\n<\/p>\n
\t  “1. Whether the nomination paper of the petitioner
\n     was improperly and illegally rejected ? O.P.P.”
\nIt is  manifest that  this issue  covers the decision on the
\nquestion  as   to  whether  various  grounds  on  which\t the
\nnomination  paper   could  have\t  been\timproperly  rejected
\nincluding the  ground mentioned\t in s. 47(2) (c) of the Act.
\nnamely, the  fact that the signature of the proposer was not
\ngenuine. Even  the  learned  Judge  clearly  understood\t the
\npleadings of  the appellant  to include\t the fact  that\t the
\nnomination paper  was rejected because of the genuineness of
\nthe signature  of  the\tproposer.  In  this  connection\t the
\nlearned Judge  in his  order dated November 7, 1972 observed
\nas follows:\n<\/p>\n
\t  “It appears  from the petition that the ground was
\n     the absence  of the  petitioner  at  the  time  of\t the
\n     scrutiny of  the nomination  paper but  it also appears
\n     from the  written statement  filed by the respondent as
\n     well as from the order
\n25<\/span>
\n     of the  Returning Officer that the nomination paper had
\n     also been\trejected because  of the  genuineness of the
\n     signature of  the proposer. The nomination paper can be
\n     rejected  on   the\t question   of\tthe  genuineness  as
\n     contemplated by  clause (c)  of Section 47 of the J & K
\n     Representation of the People Act of the State.”\n<\/p><\/blockquote>\n
It was\tfor these  reasons that\t the learned  Judge did\t not
\nthink it  necessary to\trecast the issue, because he thought
\nthat  the  plea\t taken\tby  the\t appellant  in\this  written
\nstatement was  fully covered by the issue already framed. In
\nthese circumstances,  it is  clear that\t the  appellant\t had
\nclearly raised the question that the nomination paper of the
\npetitioner could  be properly rejected under s. 47(2) (c) of
\nthe Act\t even on  the  ground  that  the  signature  of\t the
\nproposer was  not genuine.  The learned\t Judge committed and
\nerror in  not deciding\tthis particular\t plea taken  by\t the
\nappellant when\the found  that\tthe  Returning\tOfficer\t had
\nimproperly rejected  the nomination  paper on  the ground of
\nthe absence of the candidate and the proposer.\n<\/p>\n
     We have,  however, examined the various aspects of this
\nquestion and from the facts found by us it is clear that the
\noverwriting in\tthe signature  which was present at the date
\nof the\tscrutiny  also\tthrows\tconsiderable  doubt  on\t the
\ngenuineness  of\t  the  signature   of  the  proposer  Ghulam
\nMohiuddin as  clearly admitted\tby him and the lawyer of the
\npetitioner himself.  The fact  that  the  proposer  and\t the
\npetitioner were\t both absent  on the  date of  the  scrutiny
\nlends sufficient support to the inference that the signature
\nof the proposer Ghulam Mohiuddin on the nomination form does
\nnot appear  to be genuine. It is also clearly established as
\nfound by  us that  the\tappellant  did\traise  an  objection
\nregarding the  genuineness of  the signature of the proposer
\nGhulam Mohiuddin  on the  nomination form and that there was
\nno one present on behalf of the candidate to rebut or refute
\nthe objection taken by the appellant. On the other hand P.W.
\n5 who  was the\tcounsel for  the  petitioner  and  in  whose
\npresence  the  proposer\t Ghulam\t Mohiuddin  had\t signed\t the
\nnomination form\t was actually  present at  the time  of\t the
\nscrutiny and  yet, for reasons best known to him, he did not
\nchoose to  stand up  and point\tout to the Returning Officer
\nthat the  objection raised  by the appellant was not tenable
\nbecause the  proposer had  signed the nomination form in his
\npresence.  Lastly   the\t  signature   which   contains\t the
\noverwriting ex facie shows that it was not genuine. In these
\ncircumstances. therefore,  the only  irresistible  inference
\nthat could  be drawn  would be that the signature containing
\nthe overwriting\t in the present form, which was in existence
\neven at\t the time  of the  scrutiny, could not have been the
\nsignature of P. W. 1 Ghulam Mohiuddin. To add to this is the
\nfact that  P.W. 1  himself  clearly  admitted  that  in\t the
\npresent\t form,\t namely,  the\tsignature   containing\t the
\noverwriting, he\t was not  in a position to admit that it was
\nhis signature.\tThis assertion was fully supported by P.W. 5
\nGirdhari Lal  counsel for  the petitioner  in whose presence
\nP.W. 1\tis said\t to have  signed the  nomination  form.\t The
\nlearned Judge  appears to  have entered\t into the  domain of
\nspeculation by\tbrushing aside\tthe  clear  and\t categorical
\nadmission made by P.W. 1 on the ground that the question put
\nto him
\n26<\/span>
\nhad placed  him on the horns of a dilemma. Once it is proved
\nthat the  signature in\tthe present form existed even at the
\ntime of\t the scrutiny,\tthen the question put to the witness
\nP.W. 1 was most relevant and the answer given by the witness
\nwas both  clear and unambiguous. We do not see any vagueness
\nor ambiguity  in the answer given by the witness. Instead of
\ntaking the  clear admission  of P.W. 1 on its face value the
\nlearned Judge  tried to brush it aside on purely speculative
\ngrounds. In  these circumstances we are unable to agree with
\nthe view  taken by  the learned\t Judge which  is based\ton a
\nmisreading and\tmisinterpretation of the evidence of P.W. 1.
\nFor the\t same reason, we reject the contention of Mr. Pathak
\nthat  the   admission  of   P.W.  1   was  vague.  In  these
\ncircumstances, therefore, we hold that it has been proved to
\nthe satisfaction  of the  Court that the signature of P.W. 1
\nGhulam Mohiuddin which contained the overwriting was not his
\ngenuine signature.  The nomination  paper of the petitioner,
\ntherefore, could  have been  properly rejected on the ground
\nthat the signature of the proposer was not genuine. Thus the
\nrejection of  the nomination  paper by the Returning Officer
\ncould be  supported even  on a ground different from the one
\nwhich may  have been  taken by\tthe Returning  Officer. This
\nbeing the position the rejection of the nomination paper was
\nproper, and  the election  of the  appellant  could  not  be
\nassailed under\ts. 108(1)(c)  of the  Act  under  which\t the
\nelection could\tbe  declared  void  only  if  there  was  an
\nimproper rejection  of the  nomination paper. In the instant
\ncase, the rejection of the nomination paper by the Returning
\nOfficer being  proper one,  s.\t108(1)(c)  was\tnot  at\t all
\nattracted.\n<\/p>\n
     It was  lastly contended  by counsel for the petitioner
\nthat this  Court ought not to interfere with the decision of
\nthe learned  Judge unless  there were  special\treasons\t for
\ndoing so.  In support  of his contention the learned counsel
\nrelied upon  a decision\t of this  Court in  Laxminarayan and
\nanother v.  Returning Officer and others(1) where this Court
\nobserved as follows:\n<\/p>\n
\t  “Section 116A of the Act provides for an appeal to
\n     this Court\t from an  order of the High Court dismissing
\n     an election petition. The appeal lies both on issues of
\n     law and  of facts\t………………. The power of the
\n     appellate Court  is very  wide. It\t can reappraise\t the
\n     evidence and  reverse the\ttrial  court’s\tfindings  of
\n     fact. But like any other power it is not unconfined: it
\n     is subject\t to certain inherent limitations in relation
\n     to a  conclusion of fact. While the trial court has not
\n     only read\tthe evidence  of witnesses on record but has
\n     also read\ttheir evidence\tin their  faces,  looks\t and
\n     demeanour. The  appellate Court  is confined  to  their
\n     evidence on  record. appellate  Court  is\tconfined  to
\n     their evidence  on record.\t bility lies  is entitled to
\n     great weight.”  (See Saraveeraswami  v.  Talluri-A.I.R.
\n     1949  P.C.\t  32).\tHowever,  the  appellate  court\t may
\n     interfere with  a finding of fact if the trial court is
\n     shown to  have overlooked\tany material  feature in the
\n     evi-\n<\/p><\/blockquote>\n
27<\/span><\/p>\n
     dence of  a witness  or if the balance of probabilities
\n     as to  the\t credibility  of  the  witness\tis  inclined
\n     against the opinion of the trial Court.”\n<\/p><\/blockquote>\n
The  propositions   enunciated\tby   the  Court\t  are\twell
\nestablished  and   there  can\tbe  no\t dispute  with\t the
\npropositions mentioned\tabove. In the instant case, however,
\nwe find\t that the  approach of\tthe learned  Judge  was\t not
\ncorrect. We  have already  pointed out\ta number  of salient
\nfeatures appearing  in the  evidence which have rendered the
\ncase of\t the petitioner\t inherently improbable.\t The learned
\nJudge appears  to have\toverlooked these essential features.
\nFurther, the  learned Judge  himself had observed that issue
\nNo. 1  which he\t had framed  was wide  enough to include the
\nplea of\t the  appellant,  and  even  if\t the  order  of\t the
\nReturning Officer  in rejecting\t the nomination paper on the
\nground of  the absence\tof the candidate or his proposer was
\nwrong, it  could still\tbe supported  on the ground that the
\nsignature of the proposer was not genuine. The learned Judge
\nhas not\t determined this  aspect of  the  matter.  In  these
\ncircumstances, therefore,  we feel  that the judgment of the
\nHigh Court is erroneous both on fact and in law and although
\nthe appellate  Court is\t extremely slow\t in  disturbing\t the
\nfindings of fact, in the instant case, we are satisfied that
\nthe judgment  of the High Court is against the weight of the
\nevidence on record and preponderance of probabilities.\n<\/p>\n
     For the reasons given above, the appeal is allowed, the
\norder of  the High  Court setting  aside the election of the
\nappellant Mohd.\t Yasin Shah  is\t quashed  and  the  election
\npetition filed\tby the\tpetitioner is  hereby dismissed. The
\nappellant will be entitled to his costs throughout.\n<\/p>\n
P.B.R.\t\t\t\t\t     Appeal allowed.\n28<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohd. Yasin Shah vs Ali Akbar Khan on 14 April, 1976 Equivalent citations: 1976 AIR 1866, 1976 SCR 1 Author: S M Fazalali Bench: Fazalali, Syed Murtaza 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-152768","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohd. 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