# ' MOHD. YASIN SHAH v. ALI AKBAR KHAN

- **Citation:** [1976] Supp. 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1976-04-14
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-yasin-shah-v-ali-akbar-khan-7135
- **Pages:** 27

## Headnote

"
•
•
•
•
f
'
MOHD. YASIN SHAH
v.
ALI AKBAR KHAN
April 14, 1976
l
A
"IP. N. BHAGWATI, A. c. GUPTA AND s. MuRTAZA FAZAL Au, JJ.]
B
<Cf. Jammu & Kashmir Representation of the People Act, S. 47(2)(c)-Scooe
Section 47(2) of the Jam.mu & Kashmir Representation of the People
Act enacts that the Returning Officer shall examine the nomination papers
:.and shall decide all objections which may be made to any nomination and
may, either on such objection or in his own motion, after such summary
enquiry, if any, reject any nomination on the ground, among others, that
the signature of the candidate or the proposer on the nomination paper is
.not genuine.
For the general election to the State. Assembly the appellant and the
Tespondent (petitioner) filed nomination papers.
The nomination paper of
the respondent was rejected by the Returning Officer on the ground that when
his nomination was called neither he nor anyone on his behalf was present.
After the words 'Hence rejected' recorded on the nomination paper the
Returning Officer had also added that the signature of the proposer was not
genuine.
In the election that ensued the appellant was declared elected. The
respondent ili his election petition alleged (i) that though at the time of scru-·
tiny the Returning Officer was informed by his proposer that the respondent
had gone out to ease and requested him to wait for a while, the Returning
Officer rejected the nomination paper and refused to reopen the matter even
-on the respondent's request immediately thereafter and (ii) that the Returning Officer committed forgery by subsequently adding certain \vords in the
order of rejection and by over-writing the signature of the proposer on the
nomination paper.
The High Court held (i) that .the Returning Officer '\Vas not justified in
law in rejecting the nomination paper of the respondent on the ground that
he was not present at the time of scrutiny, and (ii) that the Returning Officer
having become functus officio any subsequent observations which he ~ight
have made was irrelevant and since1 the nomination paper was illej?3.lly re1ected
the election was void and was liable to be set aside under s. 108 ( 1) ( c) of the
Act.
Allowing the appeal to this C.Ourt,
HELD : The judgment otf the High COU!rt is erroneous bpth on fact
and in law and is agaihst the weight of evidencei on record and ,preponderance of
probabilities. [27 DJ
c
D
E
F
(!) Although the appellate Court should be slow to disturb a pure finding of fact based on appreciation of evidence by the- Trial Court, it is well
G
settled that the sanctity and purity of elect0ral processes must be maintained.
The election of a duly eleCted candidate cannot be set at naught oh the
basis of interested or partisan evidence not backed by cogent circumstances or
unimpeachable documents.
[6 HJ
Rahim Khan v. Khurshid Ahmed & Ors. [1975J 1 S.C.R. 643, 656 and
D. Venkata Reddy v. R .. Sultan & Ors. [1976J, 3 S.C.R. 445, referred to.
In the instant case the approach of the High Court was not correct. It
H
had overlooked many essential features. Secondly the High Court had observed that issue No. 1 was wide enough to include the appellant's plea that even
if the order of the Returning Officer in rejecting the nomination paper on
the ground of absence of the ca111didate or his proposer was wrong, it could
3-S33SCI/7
2
SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
A·
still ~e sμppo~ed on the. groun~ that the SignattJ.re of the proposer was not
genuine. Yet it had not determined this aspect of the matter. (27 C]
B
c
D
E
F
G
H
(2) The order of the Returning Officer read as a whole clearly shows
t~at the no-!Ilination pdper. was r~ect~· ,,not only on the ground that the can·
d1date or his proposer was not present but also on the ground that the signa··
tore of the proposer on the nomination paper was not genuine.
It is true
that the Retummg Officer had not given any clear finding on this point bul
s. 47 of the Act did not require, a well reasoned decision. All th

## Text

_Characters 0–39,821 of 85,946. This is a partial read: ask again with offset=39821 for what follows._

"
•
•
•
•
f
'
MOHD. YASIN SHAH
v.
ALI AKBAR KHAN
April 14, 1976
l
A
"IP. N. BHAGWATI, A. c. GUPTA AND s. MuRTAZA FAZAL Au, JJ.]
B
<Cf. Jammu & Kashmir Representation of the People Act, S. 47(2)(c)-Scooe
Section 47(2) of the Jam.mu & Kashmir Representation of the People
Act enacts that the Returning Officer shall examine the nomination papers
:.and shall decide all objections which may be made to any nomination and
may, either on such objection or in his own motion, after such summary
enquiry, if any, reject any nomination on the ground, among others, that
the signature of the candidate or the proposer on the nomination paper is
.not genuine.
For the general election to the State. Assembly the appellant and the
Tespondent (petitioner) filed nomination papers.
The nomination paper of
the respondent was rejected by the Returning Officer on the ground that when
his nomination was called neither he nor anyone on his behalf was present.
After the words 'Hence rejected' recorded on the nomination paper the
Returning Officer had also added that the signature of the proposer was not
genuine.
In the election that ensued the appellant was declared elected. The
respondent ili his election petition alleged (i) that though at the time of scru-·
tiny the Returning Officer was informed by his proposer that the respondent
had gone out to ease and requested him to wait for a while, the Returning
Officer rejected the nomination paper and refused to reopen the matter even
-on the respondent's request immediately thereafter and (ii) that the Returning Officer committed forgery by subsequently adding certain \vords in the
order of rejection and by over-writing the signature of the proposer on the
nomination paper.
The High Court held (i) that .the Returning Officer '\Vas not justified in
law in rejecting the nomination paper of the respondent on the ground that
he was not present at the time of scrutiny, and (ii) that the Returning Officer
having become functus officio any subsequent observations which he ~ight
have made was irrelevant and since1 the nomination paper was illej?3.lly re1ected
the election was void and was liable to be set aside under s. 108 ( 1) ( c) of the
Act.
Allowing the appeal to this C.Ourt,
HELD : The judgment otf the High COU!rt is erroneous bpth on fact
and in law and is agaihst the weight of evidencei on record and ,preponderance of
probabilities. [27 DJ
c
D
E
F
(!) Although the appellate Court should be slow to disturb a pure finding of fact based on appreciation of evidence by the- Trial Court, it is well
G
settled that the sanctity and purity of elect0ral processes must be maintained.
The election of a duly eleCted candidate cannot be set at naught oh the
basis of interested or partisan evidence not backed by cogent circumstances or
unimpeachable documents.
[6 HJ
Rahim Khan v. Khurshid Ahmed & Ors. [1975J 1 S.C.R. 643, 656 and
D. Venkata Reddy v. R .. Sultan & Ors. [1976J, 3 S.C.R. 445, referred to.
In the instant case the approach of the High Court was not correct. It
H
had overlooked many essential features. Secondly the High Court had observed that issue No. 1 was wide enough to include the appellant's plea that even
if the order of the Returning Officer in rejecting the nomination paper on
the ground of absence of the ca111didate or his proposer was wrong, it could
3-S33SCI/7
2
SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
A·
still ~e sμppo~ed on the. groun~ that the SignattJ.re of the proposer was not
genuine. Yet it had not determined this aspect of the matter. (27 C]
B
c
D
E
F
G
H
(2) The order of the Returning Officer read as a whole clearly shows
t~at the no-!Ilination pdper. was r~ect~· ,,not only on the ground that the can·
d1date or his proposer was not present but also on the ground that the signa··
tore of the proposer on the nomination paper was not genuine.
It is true
that the Retummg Officer had not given any clear finding on this point bul
s. 47 of the Act did not require, a well reasoned decision. All that was
necessary was that the Returning Officer should apply his mind and deter.
mine th~ question. in a summary manner. Even if the ground on which
the nomination paper had been actually rejected was not a permissible ground·,
if the successful candidate could make out a case that the nomination paper
could have been properly rejected on one of the grounds mentioned in s. 4'7
the rejection would not be improper and the election would be upheld.
[22D-H]
N. T. Veluswami Thevar v. G. Raja Nainar & Ors. [1959) SUj>p. 1 S.C.R.
623 followed.
!
(i) In the instant case the fact that P.W. 4 had stated in his evidence th1t
when the Returning OffiC"..er called the name of the petitioner no one on his
behalf responded knocks the bottom out of the respondent's story that the
proposer had been instructed to request the Returning Officer to wait :>r
that the Returning Officer had not acceded to his request.
[8 DJ
(ii) On a perusal of the Returning Officer's original order it was clear
that the entire order had been written in the same ink, with the same pen
and appears to have been written in one sitting. There_ is nothing to show
that the second part of the order was added subsequently because the strokes
of the letters, the ink used and tire i;teneral tenor of the writing are the same
throughout.
[20 BJ
(iii) As regards that portion of the Returning Officer's order written by
him after writing "Hence rejected" his explanation was that while he
~vas
writing his order and had not completed the same, objection Yl"as taken by
the appellant regarding the genuineness of the proposer's signature and since
the clerk had by then put the seal, he had recorded the appellant's objection
in this space Jeft and completed his order ahd signed above the seal. This was
corroborated by independent witnesses and there is no reason why the Returnin~ Officer should have added a part of the orde" 9ubsequently.
[20E, 2l A]
(iv) The Returning Officer,
while indicating the appellant's objection
re-"arding the genuinenessi of the signature of the proposer also observed tha~
it c was not possible to verify the signature of the proposer in the abs·~nc.e
of the candidate as well as the proposer.
Thus the absence of the cc.nchdate and the proposer had been used, not for th~ purpose of re}ectin.e: the
nomination paper, but for the purpose of supporting the concluslon of the
Returning Officer that the signature wa5 not genuine.
[22; Fl
(v) It has been satisfactorily proved that the signature of the prO;Joser
which contained' ovenvriting was not his: gehuine signature and, therefore, the
nomination paper had been properly rejected and the election could nCJt be
assailed under s. 108 (1 )( c) of the Act From the fa~ts fom1d it .was clear
that the over-writing present in the signature at the time of scrutmy ·:brew
considerable doubt on the genuineness o! the proposer's signature.
Th€- fact
that the proposer and the respnndent were ab9ent at the time! of
sc·_·utiny
lends sufficient support to the inference that the signature of the proposer was
not genuine. [26 C..DJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1141 of l974.
Appeal from the Judgment and Order dated l 0th June 197 4 of the
Jammu & Kashmir High Court at Srinagar in Election Petition ~o. 4
of 1972.
•
•
-
•
•
•
-
•
•
•
,
MOHD. YASIN v. ALI AKBAR (Fazal Ali, J.)
3
A. K. Sen, Altai Ahmed and M. Veerappa, for the appellant.
A
G. S. Pathak, 0. C. Mathur, Shri Narain and J. B. Dadachanji, for
the Respondent.
·
The Judgment of the Court was delivered by
FAZAL ALI, J.-This is an· election appeal against the judgment of
B
the High Court of Jammu & Kashmir dated June 10, 1974, by which
the learned Judge allowed the election petition filed before him by the
respondent Ali Akbar Khan and set aside the election of the returned
candidate Mohd. Yasin Shah who is the appellant before us. The returned candidate will, for short, be referred to by us as 'the appellant'
and the respondent Ali Akbar Khan will be referred to as 'the petitioner' .
It appears that during the elections held in the year 1972 in the State
C
of J ammu & Kashmir both the appellant and the petitioner were the
candidates for election to the Karnah Assembly Constituency of the
District of Baramulla in the State of J ammu & Kashmir.
There were
other candidates also some of whom had withdrawn.
One Mohd Yunis
was the Congress candidate for this constituency but he was defeated.
The petitioner, according to the appellant, was merely a covering or a
shadow candidate for the Congress candidate Mohd
Yunis.
The
D
petitioner filed his nomination paper on February 7, 1972 and his
proposer was P.W. 1 Ghulam Mohiuddin.
According to the petitioner
tlie nomination paper was presented to the Returning Officer R.W. 3
Abdul Rehman Mir on February 7, 1972 by the petitioner who was
accompanied with his proposer Ghulam Mohiuddin who had signed
as the proposer. The Returning Officer received the nomination paper
and granted a receipt for the same.
A sum of Rs. 250 /- being the
E
election deposit was also deposited and other formalities were duly
observed.
February 9, 1972, was the last date fixed for the scrutiny
of the nomination papers of all the candidates.
Aocording to the
petitioner he reached the office of the Returning Officer at
about
10 A.M. on February 9, 1972 but as he was suffering from dysentery
he went to attend the call of nature and instructed his proposer P.W. 1
Ghulam Mohiuddin to take time on his behalflf the name of the
F
candidate was called out. The petitioner's case before the High Court
was that the Returning Officer aft.er scrutinising the nomination papers
aocepted all of them but rejected the nomination paper of the petitioner
on the ground of l)is absence in spite of the fact that P.W. 1 Ghulam
Mohiuddin requested him to wait for the petitioner who had gone
to attend the call of nature.
It was further alleged that when the
t>etitioner returned he beseeched the Returning Officer not to reject
G
his nomination paper but the Returning Officer refused to reopen the
matter as the nomination paper of Mohd. Yunis the Congress candidate had been accepted.
The nomination paper of Mohd Yasin Shah
the appellant was also accepted.
Thereafter the poll was held on
March 8, 1972 and the results were declared on March 12, 1972. The
appellant Mohd Yasin Shah was declared elected, while Mohd Yunis
was defeated.
After the results were declared the petitioner awlied
H
for a certified copy of the order of rejection of his nomination paper
on April 1, 1972, and according to him the Returning Officer tried to
avoid giving thC copy of the said order which was ultimately given
A
B
c
D
E
F
G
H
4
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
to him on April 3, 1972, A~ 2, being a Sunday.
The sheet-anchor
of the case of the petitioner was that the Returning Officer was particularly biased. against him and he rejected the nomination paper in
order to support the returned candidate in whom he was interested.
The petitioner further pleaded that the only ground on which
the
nomination paper. was rejected was that the petitioner did not appear
when the Returrung Officer called out his. name at the time of the
scrutiny of his nomination paper.
The petitioner further averred that
under the law the Returning Officer could not have rejected his nomination paper on the ground of his absence even if it was so.
Not
content with these allegations the petitioner went to the extent of
making a serious and irresponsible allegation against the
Returning
Officer by averring that the Returning Officer had committed forgery
by subsequently adding certain words in the order of rejection and
overwriting the signature of the proposer Ghulam Mohiuddin on the
nomination paper.
Thus, in short, according to the petitioner as his
nomination paper was improperly rejected by the Returning Officer,
the election of the appellant was void on that ground alone.
The petitioner filed the present election petition with the allegations aforesaid on April 12, 1972. It was alleged that at the time
when P. W. 1 Ghu!am Mohiuddin was examined as a witness there was
some overwriting on the signature of Ghulam Mohiuddin the proposer
of the petitioner on the nomination form.
Accordingly the petitioner
made an application to the Court for permission to file an amended
petition by incorporating the fact that the overwriting was brought
into existence after the scrutiny of the nomination papers was over and
behind the back of the petitioner.
The learned Judge, after hearing
the parties, ultimately allowed the application
and accordingly
an
amended petition was filed by the petitioner where the allegations
regarding interpolation etc. were made.
The appellant was also given
an opportunity to file his additional written statement.
The petition was stoutly resisted by the appellant who denied,
inter alia, all the allegations made by the petitioner and contended that
there was absolutely no overwriting on the signature of Ghulam
Mohiuddin nor was any forgery committed by the Returning Officer.
It was further averred that as neither the petitioner nor his proposer
was present when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer and as the appellant
himself raised the objection that the signature of Ghu!am Mohiuddin
on the nomination paper was not genuine the Returning Officer having
applied his mind upheld the objection and rejected the nomination
paper on the ground that the signature of Ghnlam Mohiuddin was
not genuine as it could not be verifie_d. The appella~t also vel1em~ntly
denied the allegation that the Returmng Officer was m any way biased
or prejudiced against the petitioner .. On the other hand it was_ averred
that the Returing Officer was an mdependent officer and smce the
petitioner was a candidate of the Congress if the Returning Officer
could have any leaning at all it would be towards the petitioner rather
than the appellant who was an independent _candidate . opposing the
Congress party. The learned Judge, after taking the evidence of the
•
-
•
•
•
MOHD. YASIN v. ALI AKBAR (Fazal Ali, !.)
5
parties, came to the conclusion that from the order of the Returning
A
,
Officer_ it \llOU!d. appear that the nomination paper of the petitioner
was reiected mainly on the ground of his absence which was not a
lawful ground on which the nomination paper could have been rejected
under s. 47(2) of the Jammu & Kashmir Representation of the People
Act.
On the question of the overwriting the learned Judge held that
there was no doubt that there was overwritillg -on the signature of
B
..
P. W. 1 Ghulam Mohiuddin on the nomination form of the petitioner
and perhaps the overwriting was made some time after the scrutiny.
But the learned Judge refrained from giving any finding as to who
made the interpolation and in what circumstanees.
As regards
the
'
allegation that the Returning Officer had committed forgery the learned
Judge does not appear to have accepted the same or given any clear
finding on this point, and he steered clear of this fact by observing c
that as the first part of the order of the Returning OJficer rejecting
-
the nomination paper was based on the ground of the -absence of the
petitioner, the Returning Officer became functlfs officio
and
any
subsequent observation which he may have made was irrelevant. The
learned Judge further seems to have held that the petitioner was not
present when the scrutiny of his nomination paper was taken up and
•
the Returning Officer was not justified in law in rejecting his nomiD
nation paper on that ground alone. On these findings the learned Judge
~
held that as the nomination paper of the petitioner was illegally rejected
the election of the appellant was void and was liable to be set aside
under s. 1 08 (1 )( c) of the J ammu and Kashmir Representation of the
People Act-hereinafter referred to as 'the Act', as amended upto date.
,.
In support of the appeal Mr. Altaf Ahmed learned counsel for the
E
_,
appellant who was followed by Mr. Asoke Sen submitted that the
learned Judge has misconstrued the order passed by the
Returning
Officer rejecting the nomination paper of the petitioner and that the
judgment of the High Court is against the weight of the evidence on
the record. It was also argued that the
learned Judge completely
overlooked some of the essential features appearing in the case which
completely demolished the
petitioner's case.
Mr. G. S.
Pathak
F
-
appearing for the petitioner, however, supported the judgment of the
High Court and contended that the order of the Returning Officer
was mainly passed on the ground of the absence of the petitioner
'
which was not justified by the provisions of s. 47(2) (c) of the Act.
He also submitted that a bare perusal of the order of the Returning
•
Officer would clearly show that the second part of the order reu~rdi~g
the genuineness of the signature of the proposer Ghulam Mohm~dm
appears to have been inserted subsequei;tly. Lastly, it was s;ibmitte?
G
that although this Court could reappraise the evidence for itself
1t
should not interfere with the judgment of the ~
Court ~n . facts
unless the High Court had committed an error m its apprecrnhon of
evidence or overlooked any material fact. It was further argued that
this Court should keep in mind the slowness of !11~ appe!lat~ court to
-"
di t b a
ure finding of fact based on appreciation of eV1d_ence by
H
ths '!}rial tourt which had the initial
advantage of
watchmg_ the
de':neanour of the witnesses examined by it.
1;11kre ~an be no 1~):1~~
with the propositions adumbrated by Mr. Pat a " ut we wou
i
6
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
A
to mention tl]at it is well settled that the sanctity ilild purity of electoral process in the conntry must be maintained.
The election of a
duly returned candid·:ue cannot be· set at naught on the basis
of
interested or partisan evidence which is not backed by cogent circumstances or unimpeachable documents.
In Rahim Khan v. Khurshid
Ahmed & Ors.( 1) this Court observed as follows :
B
c
0
E
F
G
H
"We must emphasize the danger of believing at its face
value oral evidence in an election case without the backing
of sure circumstances or indubitable documents.
x x x
There is no x-ray whereby the dishonesty oI the story can be
established and, if the Court were gullible enough to gulp
such oral versions and invalidate elections, a new menace to
our electoral system would have been invented through the
judicial apparatus.
We regard it as extremely unsafe, in the
present climate of kilkennycat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard
won electoral victory merely because lip service to a corrupt
practice has been rendered by some sanctimonious witness.
The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges
of corrupt practices which might not merely cancel the election result, but extillo"Uish many a man's public life."
In D. Venkata Reddy v. R. Sultan & Ors.( 2 ) this Court, in which
one of us (Fazal Ali, J.) was also a party, reiterated the principles in
the following words :
"In a democracy such as ours, the purity and sanctity
of elections, the sacrosanct and sacred nature of the electoral proc.ess must be preserved and maintained. The valuable
verdict of the people at the polls must be given due respect
and candour and should not be disregarded or set at naught
on vague, indefinite, frivolous or fanciful allegations or on
evidence which is of a shaky or prevaricating character. It
is well settled that the onus lies heavily on the election petitioner to make out a strong case for setting aside an election.
In our conntry election is a fairly costly and expensive venture and the Representation of the People Act has provided
sufficient safeguards to. make the elections fair and free. In
these circumstances, therefore, election results cannot be
lightly brushed aside in election disputes."
We would now proceed to discuss the various aspects of the case
in the light of the principles enunicated by this Court in the aforesaid cases.
To begin with, we might mention that most .o.f the facts
on which evidence appears to have been led by_ the petitioner we_re
not pleaded in the election petition at all.
For mstance, the defirote
case made out by the petitioner in hls evidence was that at the ti~e
of the scrutiny of the nomination papers when the name of the petitioner was called ont P.W. 1 Ghulain Mohiuddin the proposer of the
(1) [1975] I S. C.R., 643, 656.
(2) 11976] 3S.C.R.445, 450
•
,
•
•
,
I
,
MO.HD. YASIN v. AU AK:llAR (Fazal Ali, ],)
7
petiti~er was present who drew the attention 0£ the Returning Officer
A
to the fact that. the petitioner had gone to attend tile call of nature
and that he should Vf:ait for him but the Returning Officer refused to
wait and rejectid the nomination paper on the ground of the absence
-0f the petitioner. It was further sought to be proved in the evidence
that on return the petitioner tried to persuade the Returning Officer
to reopen th\' matter and in fact filed an application before him for
recalling the order of rejection of the nomination paper but the ReB
turning Officer was so much prejudiced against him that he tore off
the petition submitted before him by the petitioner. It will be noticed
that neither in the original pet~tion nor in the amendecl one there. is
any mention of the fact that P. W. 1 Ghulam Mohiuddin drew attention of the Returning Officer and asked him to wait, nor is there any
mention of the facit that the petitioner on his return submitted a petition to the Returning Officer which was tom into pieces by the ReturnC
ing Officer.
We shall show that these facts are also not proved even
by some of the witnesses examined by the petitioner. It may be
pertinent to note here that while in paragraph 14 it was mentioned
that when the nomination form of the petitioner was taken up it was
reported to the Returning Officer that the petitioner had gone to attend
the call of naiture, but significantly enough it is not mentioned therein
as to who was the person who had drawn the attention of the RetmnD
ing Officer. It seems to us that even at the time of filing his amended
petition which was filed after the ttrial had started the petitioner was
not certain of his case and had not yet decided to allot this part to his
proposer Ghulam Mohiuddin.
P.Ws. 1, 2
and 6 have no
doubt
asserted in their evidence that P.W. 1 Ghulam Mohiudclin requested
the Returning Officer to wait for the petitioner who haJ gone to attend
the call of nature. P.W. 1 Ghulam Mohiuddin who was the proposer
E
of the petitioner and therefore the most interested witness in this case
has no doubt testified to the fact .that he had drawn the attention of
the Returning Officer when the nominaiion paper of the petitioner was
taken up for scrutiny,. but the Returning Officer did not heed
his
request and rejected th~ nomination paper. This witness also stated
that petitioner himself told the Returning Officer that he was going to
attend the call of nature and that he should wait for him.
But the
F
witness does not appear to be sure of his statement as he immediately
voluntee.red to state that as there was Jot of noise at that time evidently
the Returning Officer did not hear him.
The petitioner also says the
same thing.
P.W. 2 Qazi Mohammad Abdullah also ,tries to support the fact
that at the time of scrutiny the petitioner was not present and Ghulam
G
Mohiuddin P.W. 1 informed the Returning Officer that the petitioner
had gone to attend the call of nature.
This witness, however, did not
support the allegation of the petitioner that a petition was submitted
by him before the Returning Officer which was torn by him.
The
witness stated thus :
"The petitioner die! not submit any petition before the
Returning Officer in my preseni:e on the day of scrutiny.
H
There was no such incident in my presence such as the filing
of a petition before the Returning Officer and the tearing off
that 'petition by him."
A
B
c
D
E
F
G
H
8
SUPREME. COURT REPORTS
[1976] SUPPLEMENTARY
P.W. 6 the petitioner himself no doubt supported his s:~se that he
had gone to attend the call of n$ure when the scrutiny of his nomination paper was taken up and had instructed P.W. 1 Gbulam Mohiuddin to remain present and to ask the Returning Officer to wait.
Thus this fact is J!.Ot proved by any independent witness.
On the other hand the fact that Ghulam Mohiuddin did not respond to the call even though he was instructed, as the petitioner would
have us believe, is admitted even by a witness of the petitioner, namely,
P.W. 4 Ghulam Qadir Mir, who deposed as follows :
"At the time when the scrutiny of the nomin,;tion paper
of Ali Akbar Khan was taken up, be himself was not present
there.
His proposer Ghulam Mohi-ul-Din was present there.
The name of Ali Akbar Khan was called out but no one
responded and so the Returning Officer wrote down that the
candidate was absent and his nomination paper was being
rejec~ed. In my presence nothing else happened there."
It would therefore appear from the evidence of this witness that even
thongh Ghulam Mohiuddin was present he did not at all respond when
the name of the petitioner was called out. This knocks the bottom
out of the story put forward by the petitioner that Ghulam Mohiuddin
had been instructed to ask the Returning Officer to wait or that
Ghulam Mohiuddin stood up and requested the Returning Officer to
wait for the j)etitioner.
Thus the entire story given out by P.Ws. 1,
2 and 6 on this point is falsified by one of the witnesses examined by
the petitioner himself.
There is yet another
circmnstance which
throws considerable
doubt on this part of the story of the petitioner. P.W. 5 Girdhari Lal
counsel engaged by the petitioner at the time of scrutiny according to
whose evidence Ghulam Mohiuddin bad signed the nomination form in
his presence, was also present at the time when the scrntiny of the nomination paper of the petitioner was taken up and in spite of this fact
when the name of 1the petitioner was called out and according to the
witness the Returning Officer announced that since he was absent bis
nomination paper was rejected this witness did not enter a protest
on behalf of bis client, the petitioner, th~ the Returning Officer could
not have rejected the nomination paper on the ground of the absence
of the petitioner.
This somewhat unusual conduct on the part of
the witness who is a lawyer of some experience clearly shows that
neither Ghulam Mohiuddin was present nor the petitioner was present
and it is therefore extremely doubtful if this witness was also present
at the time when the scrutiny of the nomination paper of the petitioner
was taken up by the Returning Officer.
As against this contradictory and discrepant evidence there is consistent evidence of the appellant's witnesses R.Ws. 1, 2, 3 and 4 lo
the effect that neither the petitioner nor his proposer Ghulam Mobiuddin was present when the scrutiny of the nomination paper of the
petitioner was taken up.
R.W. 3 is the Returning Officer himself
and he appears to us to be an absolutely independent witness being
a high Government officer of sufficient experience and there is abso-
,
•
•
•
•
MOHD. YASIN v. ALI AKBAR (Fazal Ali, 1.)
9'
lntely no reason for him' to depose falsely against the petitioner. The
A
~
Returning Officer stated thus :
"When in spite of repei\ted calls neither the petitioner
nor his proposer turned up before me, then I began to
write out the order on the back of <the nomination form."
R.W. 1 Mohammad Anwar Shah Masoodi also appears to be an
B
I
independent witness who was an active Congress worker but he did
not see eye to eye with the Congress on the candidature of Mohd Yunis·
'
for the constituency in question.
There is nothing to show that this·
witness was in any way interested in the appellant.
This witness
,
also rn'.egorically stated that neither the petitioner nor the proposer
of the petitioner turned up at the .time when the name of the petitioner was called out.
c
R.W. 2 Ghulam Hassan Malik who was also one of the candi-
-
dates from the Karnah Assembly Constituency and who is a lawyer
also corroborated the evidence of the Re!turuing Officer and of R.Ws.
1 & 3 that no one stood up on behalf of the petitioner when the
name of the petitioner was called o~t and that the proposer of the
petitioner was also not present at that time in the room.
This witD
'
ness has further stated that no one brought it to the notice of the
Returning Officer that the petitioner was ill or that he would be coming soon.
The evidence of the witnesses examined by the appellant,
therefore, is fully corrobor~ted by the evidence of
P.W. 4 Gulam
Qadir Mir a witness of the petitioner as shown above.
#
Furthermore we find it difficult to believe why the
Returning
Ofiicer who was an independent person and a Government Officer
E
,
would refuse to wait for the petitioner if his attention was
really
drawn to the fact that 1the petitioner was ill and had gone to attend
the call of nature by Ghulam Mohiuddin or any body on behalf of
the petitioner.
This fact, therefore, clearly shows that the case of
the appellant that neither !the petitioner nor his proposer was present
at the time when the scrutiny of the nomination paper of the petiF
tioner was taken up is true.
Even the learned Judge is also inclined
-
to accept 1this part of the case of the appellant. On a consideration
•
of the evidence of the parties referred to above we are clearly of the
opinion that the petitioner has failed to prove that at the time when
the scrutiny of his nomination paper was taken up by the Returning
Officer either the petitioner or his proposer Ghulam Mohiuddin was·
,
present and made any request to the Returning Officer to wait which
G
was not acceded to by the Returning Officer.
Apart from the interested testimony of P.W. 1, 3 and 6 that the
petitioner had subrnHted a petition to the Returning Officer which
was torn out by him there is no reliable evidence to prove this fact.
To begin with, this fact is ne\t at all mentioned even in the election
petition filed by the petitioner even after amendment.
The petitioner
H
--'
admits in his statement that he did not mention this fact while instructing his lawyer. Furthermore, if indee.(\ the Returning Officer actually
behaved in the manner as the petitioner would have us believe, then
it was a very serious matter and the petitioner is not likely to have
A
B
D
E
F
H
10
SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
slept over the matter but would have filed a 'regular complaint against
the Returning Officer to his higher superiors.
Iu fact when
there
was a delay of only one day in the giving of the copy of the rejection
order the petitioner made a great fuss and furore over this petty lapse.
Is it possible to believe that the
petitioner would sit quiet if the
Returning Officer had behaved in such a manner with him by tearing
off the petition which was submitted to the Returning Officer? Apart
from that P.W. 3 Mohammad Maqbool Mir at p. 87 of the Paper Book
has clearly admitted that in his presence no petition was filed by Ali
Akbar Khan before the Returning Officer.
Even P.W. 5 who was
the lawyer of the petitioner staj'.ed that he cannot say that Ali Akbar
Khan presented any petition before the Returning Officer which the
latter tore off.
P.W. 4 also says tha¢ he did not see the petitioner
Ali Akbar Khan or his proposer presenting any application to the
Returning Officer which the latter tore off.
Thus the
mischievous
allegation
made
by the pe,'.itioner against the Returning Officer is
completely disproved not only from his own conduct but also by the
evidence of his, own witnesses as discussed above.
Finally even though a very serious allegation was made against the
Returning Officer personally, yet, when he was deposing as a witness
for the appellant, no suggestion was put to him that any petition was
presented to him which he tore off instead of taldng any action thereon.
Further while P.W. 1 Ghulam Mohiuddiu categorically stated
in his evidence that the petition which· was submitted to the Returning
Officer was scribed by Abdul Ahad the petltion writer, yet the petitioner made no attempt to examine Abdul Ahad in order to prove this
part of his case.
In these circumstances, therefore, we disbelieve this
part of the case of the petitioner that he had filed any petition to
1the Returning Officer for reopeniug the order rejecting his nomiuatio:1 paper. It seems to us that this allegation was a made up story
and appears to have been invented in order to make out a case that
the Returning Officer was biased against the petitioner and 1that is
why the nomination paper of the petitioner was illegally rejected by
him.
The petitioner has however miserably failed to prove this part
of the case. If this story is found Ito be false, it would also demonstrate the falsity of the main allegation made by the petitioner regarding the overwriting on the signature of Ghulam Mohiuddin as also
interpolation in the order passed by the Rd\U.rning Officer rejecting
the nomination paper of the IJetitioner.
This brings us now to the question as to the nature of the order
passed by the Returning Officer which is Ext. RW 3/3.
Before,
however, taking up this matter it may be necessary to dispose of the
case of the petitioner rel'}lrding the overwriting alleged to have been
made subsequently on the signature of Ghulam Mohiuddin on the
nomination paper Ext. PW 5 /2.
The definite case of the petitioner
was that at the time when the nomination paper was filed before the
Returning Officer R.W. 3, or even at :the time of the scrutiny on
February 9, 1972, there was no overwriting at all which appears to
have been made snbsequently.
On the other hand the case of the
appellant is 'that the overwriting was already there from before an~
in fact it was deliberately made so as to afford a ground to the pet1-
'
-
'
-
l
I
MOl!D. YASIN V. ALI AKBAR (Fazal Ali, !.)
11
tioner to set aside the election of (the appellant in case he was duly
elected. It was suggested that this lacuna was deliberately left so as
to invite the Returning Officer to reject the nomination paper and then
use this infirmity to upset the eleclion of the appellant. In support
of this case the appel!ant relied upon !he following circmill!tances :
"' ·,
.• ~~ .•
;·'.,:~,:r_:.j J.~·vt~ ··&··· ... ,·.• ..
(i) that the petitioner ·was a mere covering or shadow candidate
of the Congress and was not at all interested in contesting the election;
(ii) that once the nomination paper of Mohd Yunis who was the
official candidate of the Congress was accepted the petitioner was not
at all interested in pursuing his election and it was for this reason
that when the scrutiny of !he nomination paper of the petitioner was
taken up neither the petitioner nor his proposer was present and an
imaginary story was invented that the petitioner was ill and had gone.
to a'.tend the call of nature and Ghulam Mohiuddin
the proposer
asked the Returning Officer to wait but he rejected !he nomination
paper of the petitioner; and
(iii) !hat P.W. 1 Ghulam Mohiuddin the proposer of !he petitioner
has in an unguarded moment admiUted in his statement that on the
very day when !he nomination paper was rejected i.e. on February
9, 1972, !he petitioner informed the witness that he will file a case
in !he Court against Mohd Yasin !he appellant. P.W. 1 deposed thus:
"The petitioner had only •then
informed me after !he
rejection i:e. on 9-2-1972 !hat he will now file a case in the
Court against Mohammad Yasin respondent."
A
B
c
D
Tltis statement clearly lets the cat out of !he bag and shows that the .
E
M'itioner's intention really was to prepare a ground for setting aside
!he election of !he appellant if he was duly elected. Unless this was
so, it is not understandable why the petitioner should have made such
a statement to P.W. 1 on the date when the nomination paper was
rejected and when he obviously did not know whether or not tme
appellant would succeed iri the election.
We shall now deal with each of these circumstances relied upon
by the appellant in support of his case that the entire story o~ overwriting etc. was a figment of the imagination of the petitioner's mind
and perhaps the whole thing was stage-managed so as to invite the
Returning Officer to reject the nomination paper of the petitioner.
·
The appellant has clearly stated in his evidence that the petitioner
was merely a covering candidate of the Congress and was put up only
as a shield to take the place of Mohd Yunis if the nomination paper
of Mohd Yunis was rejected. R.W. 1 who, as we have
already
pointed out,, was an independent wi~s and was an active worker
of the Congress at one time bas also categorically asserted that the
petitioner was a covering candidate of the Congress. The . witness
stated !hus :
"The petitioner wai i Caildldate set up by the Congress
that. is to say he was a covering candidate. The congress
had given the mandate to Kb. Mohd Yunis but the latter
F
G
H
12
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
A
had set up the petitioner as a candidate by way of precaution."
B
c
D
E
F
G
H
The evidence of this witness appears to have a ring of truth in it.
He has clearly $lated that he did not agree with the Congress Orgamzation when a mandate was given to Mohd Yunis to stand from the
Assembly constituency of Karnall, because in his opinion Mohd Yunis
had lost his
popularity and there was little chance of his being
elected.
The result of the election demonstrated that the apprehension of this witness was und0ubt.edly correct, because while the
appellant was duly returned, Mohd Yunis was defeated.
In these
circumstances we do not see any reason to distrust the evidence of this
witness on this point.
R.W. 2 Gulam Hassan Malik who was a lawyer and also a candidate has also stated 11hat the petitioner Ali Akbar Khan was a covering candidate of Mohd Yunis.
The appellant also in his evidence categorically asserted that the
petitioner was a covering candidate of the Congress for Mohd. Yunis.
It is true that ,the petitioner has not admitted this fact, but the somewhat contradictory stand taken by him on this point clearly shows
that he
was
undoubtedly
a covering
candidate.
The
witness
(petitioner) said that if his nomination paper had been accepted he
would not have contested as an independent candidate but he had
been assured that if the nomination paper of Mohd. Yunis as also oj
the petitioner were accepted ihen the Congress was to dec.ide as to
who would contest the election. At the same time the petitioner
·admitted thait the mandate of the Congress was given to Mohd Yunis
prior to the filing up of the nomination forms. Indeed if the mandate
was given by the Congress party to Mohd. Yunis alone, the petitioner
was bound to be a dummy candidate only. Another intrjμsic circumstance that supports this fact is that while Mohd Yunis and other
candidates filed a number of nomination papers so that if one of them
was rejected on the ground of any defect or infirmity the remaining
nomination forms may be accepted and the candidature of the candidates would not nm into difficulty, the petitioner admittedly filed only
one nomination paper and did not think it necessary to file another
nomination paper.
These facts taken together with the subsequent
conduct of (the petitioner and his proposer Ghulam Mohiuddin in not
being present at the time of the scrutiny of the nomination paper as
found by us lends sufficient support to the case of the appellant tha.t
the petl'.ioner was merely a dummy candidate.
As regards the other circumstances that after the nomination paper
of Mohd.