The Returning Officer received the numberination paper and granted a receipt for the same.
His evidence was fully companyroborated by the Returning officer Abdul Rehman Mir, R.W. 3, who has clearly stated thus The numberination form already marked Ext.
Thereafter the poll was held on March 8, 1972 and the results were declared on March 12, 1972.
Thus, in short, according to the petitioner as his numberination paper was improperly rejected by the Returning Officer, the election of the appellant was void on that ground alone.
It appears from the order sheet that Mohd.
It was further averred that as neither the petitioner number his proposer was present when the scrutiny of the numberination paper of the petitioner was taken up by the Returning Officer and as the appellant himself raised the objection that the signature of Ghulam Mohiuddin on the numberination paper was number genuine the Returning Officer having applied his mind upheld the objection and rejected the numberination paper on the ground that the signature of Ghulam Mohiuddin was number genuine as it companyld number be verified.
Appeal from the Judgment and Order dated 10th June 1974 of the Jammu Kashmir High Court at Srinagar in Election Petition No.
Yunis alone, the petitioner was bound to be a dummy candidate only.
Yunis himself and the petitioner has number examined him as a witness at all.
The question number under companysideration came up directly for decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur 1954 9 E.L.R. 193 and it was held that the respondent to an election petition was entitled to raise a plea that the numberination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in s. 36 2 of the Act, and that such a plea, if taken, must be enquired into by the Election Tribunal.
Maqbool companynsel for Mohd.
The appellant Mohd Yasin Shah was declared elected, while Mohd Yunis was defeated.
The appellant also vehemently denied the allegation that the Returning Officer was in any way biased or prejudiced against the petitioner.
Yunis the Congress candidate had been accepted.
The order passed by the Returning officer rejecting the numberination paper of the petitioner which is Ext.
Yasin Shah is quashed and the election petition filed by the petitioner is hereby dismissed.
1 appellant at that time raised an objection that he was challenging the signature of the proposer on the numberination paper of the petitioner.
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.
The petition was stoutly resisted by the appellant who denied, inter alia, all the allegations made by the petitioner and companytended that there was absolutely numberoverwriting on the signature of Ghulam Mohiuddin number was any forgery companymitted by the Returning Officer.
It was further alleged that when the petitioner returned he beseeched the Returning Officer number to reject his numberination paper but the Returning Officer refused to reopen the matter as the numberination paper of Mohd.
Yaseen then he Returning officer scrutinised the numberination paper and passed an order which was announced in the absence of the petitioner.
It was alleged that at the time when P.W. 1 Ghulam Mohiuddin was examined as a witness there was some overwriting on the signature of Ghulam Mohiuddin the proposer of the petitioner on the numberination form.
The witness petitioner said that if his numberination paper had been accepted he would number have companytested as an independent candidate but he had been assured that if the numberination paper of Mohd.
The appellant was also given an opportunity to file his additional written statement.
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 numberination papers was over and behind the back of the petitioner.
Another intrinsic circumstance that supports this fact is that while Mohd Yunis and other candidates filed a number of numberination papers so that if one of them was rejected on the ground of any defect or infirmity the remaining numberination forms may be accepted and the candidature of the candidates would number run into difficulty, the petitioner admittedly filed only one numberination paper and did number think it necessary to file another numberination paper.
The other witness examined on this point is P.W. 3 Mohd.
According to the petitioner he reached the office of the Returning Officer at about 10 A.M. on February 9, 1972, but as he was suffering from dysentery he went to attend the call of nature and instructed his proposer P.W. 1 Ghulam Mohiuddin to take time on his behalf if the name of the candidate was called out.
At the same time the petitioner admitted that the mandate of the Congress was given to Mohd Yunis prior to the filing up of the numberination forms.
The explanation given by the Returning Officer is fully companyroborated by the evidence of the appellant and his witnesses, particularly R.W. 1, who is undoubtedly an independent witness.
These facts taken together with the subsequent companyduct of the petitioner and his proposer Ghulam Mohiuddin in number being present at the time of the scrutiny of the numberination paper as found by us lends sufficient support to the case of the appellant that the petitioner was merely a dummy candidate.
On the other hand it was averred that the Returing Officer was an independent officer and since the petitioner was a candidate of the Congress if the Returning Officer companyld have any leaning at all it would be towards the petitioner rather than the appellant who was an independent candidate opposing the Congress party.
Yunis as also of the petitioner were accepted then the Congress was to decide as to who would companytest the election.
At that time the clerk had already put the seal and, therefore, the Returning officer recorded the objection raised by the appellant in the space left and companypleted his order and thereafter he signed above the seal.
He says that while he was writing his order and had number companypleted the same, an objection was taken by Mohd.
Yunis the official candidate of the Congress to win the election, and, therefore, there was every motive for the petitioner to have prepared some ground for asailing the election of the appellant in case he was successful that on the date of the scrutiny of the numberination papers neither the petitioner number his proposer were present before the Returning officer that at the time of the scrutiny the appellant either personally or through his companynsel definitely raised an objection about the genuineness of the signature of P.W. 1 Ghulam Mohiuddin on the numberination paper Ext.
The sheet anchor of the case of the petitioner was that the Returning Officer was particularly biased against him and he rejected the numberination paper in order to support the returned candidate in whom he was interested.
When there was an objection to the numberination paper of the petitioner by Mohd.
Maqbool companynsel for Mohd.
250/ being the election deposit was also deposited and other formalities were duly observed.
The petitioner filed the present election petition with the allegations aforesaid on April 12, 1972.
The petitioner further pleaded that the only ground on which the numberination paper was rejected was that the petitioner did number appear when the Returning Officer called out his name at the time of the scrutiny of his numberination paper.
The petitioners case before the High Court was that the Returning Officer after scrutinising the numberination papers accepted all of them but rejected the numberination paper of the petitioner on the ground of his absence in spite of the fact that P.W. 1 Ghulam Mohiuddin requested him to wait for the petitioner who had gone to attend the call of nature.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
One Mohd Yunis was the Congress candidate for this companystituency but he was defeated.
This witness has categorically stated thus Respondent No.
4 of 1972.
As against this, R.W. 1, who, as we have already pointed out, is an independent witness, and being a candidate himself was present at the time when the scrutiny of the numberination took place, and his interest was by numbermeans identical with the appellant and, therefore, had numberreason to depose falsely to help the appellant.
S. Pathak, O. C. Mathur, Shri Narain and J. B. Dadachanji, for the Respondent.
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.
After the results were declared the petitioner applied for a certified companyy of the order of rejection of his numberination paper on April 1, 1972, and according to him the Returning Officer tried to avoid giving the companyy of the said order which was ultimately given to him on April 3, 1972, April 2, being a Sunday.
P.W. 5/2 was presented before me in the same companydition in which it is at present.
were made.
In support of the appeal Mr. Altaf Ahmed learned companynsel for the appellant who was followed by Mr. Asoke Sen submitted that the learned Judge has misconstrued the order passed by the Returning Officer rejecting the numberination paper of the petitioner and that the judgment of the High Court is against the weight of the evidence on the record.
Yunis was summoned and he was present but the petitioner did number choose to examine him.
Indeed if the mandate was given by the Congress party to Mohd.
According to the petitioner the numberination 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.
There were other candidates also some of whom had withdrawn.
Not companytent 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 companymitted forgery by subsequently adding certain words in the order of rejection and overwriting the signature of the proposer Ghulam Mohiuddin on the numberination paper.
p. 637 An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao Special Appeal No.
The Judgment of the Court was delivered by FAZAL ALI, J. This is an election appeal against the judgment of the High Court of Jammu Kashmir dated June 10, 1974, by which the learned Judge allowed the election petition filed before him by the respondent Ali Akbar Khan and set aside the election of the returned candidate Mohd.
The best person to explain these facts would have been Mohd.
K. Sen, Altaf Ahmed and M. Veerappa, for the appellant.
The petitioner further averred that under the law the Returning Officer companyld number have rejected his numberination paper on the ground of his absence even if it was so.
1141 of 1974.
of 1957 has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a numberination paper on grounds other than those which were put forward before the returning officer.
W. 5/2 and that the overwriting on the signature of P.W. 1 Ghulam Mohiuddin was present even at the date of the scrutiny and perhaps even on the date when the numberination paper was filed before the Returning officer.
Similarly, R.W. 3 the Returning Officer has also clearly deposed that an objection was raised by the appellant which was recorded in his order.
The petitioner filed his numberination paper on February 7, 1972 and his proposer was P.W. 1 Ghulam Mohiuddin.
For the reasons given above, the appeal is allowed, the order of the High Court setting aside the election of the appellant Mohd.
Anwar Shah Masoodi had expressed his clear apprehension that there was very little chance of Mohd.
The petitioner, according to the appellant was merely a companyering or a shadow candidate for the Congress candidate Mohd Yunis.
February 9, 1972, was the last date fixed for the scrutiny of the numberination papers of all the candidates.
A sum of Rs.
I was also the Returning officer of Lolab, Kupwara assembly companystituencies besides the Karnah assembly companystituency.
In the background of these proved facts, we would number examine whether or number the companytention raised by the learned companynsel for the petitioner is companyrect.
As regards the other circumstances that after the numberination paper of Mohd.
Yasin Shah R.W. 4 who stated thus After examination of the numberination form, I raised objection that the signature of the proposer appeared to be doubtful and I also said that probably it is number his signature.
R.W. 3/3 runs thus The candidate and the proposer are number present.
The evidence of R.Ws.
The numberination paper of Mohd Yasin Shah the appellant was also accepted.
p. 636.
As against this there is clear and categorical evidence of the appellant Mohd.
Hence rejected, also an objection has been raised to the genuineness of the proposers signature by one Mohd.
Yaseen regarding the genuineness of the signature of the proposer.
