Uttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh Mohite-Patil

6. The scrutiny of the nomination papers was adjourned till 3.45 p.m. on 15.11.2003. The matter was again taken up at the said time. The returning officer compared the signatures of the said proposers. They were also present before him. Admittedly inter alia on the premise that the signatures of proposer Nos. 7 and 8 were not genuine, the nomination of the appellant was rejected. By a separate order, the nomination of Shri Subhas Rajaram Patil was also rejected. Another candidate Shri Dilip Dyandeo Chougule withdrew his candidature as a result whereof the respondent was declared elected as an uncontested candidate in terms of Section 53(2) of the Act read with Rule 11(1) of the Conduct of Election Rules, 1961 (for short "the Rules").

7. Appellant filed a writ petition questioning the rejection of his nomination which, however, was permitted to be withdrawn on 20.12.2003 allowing the appellant to pursue appropriate remedies available to him.

8. Appellant allegedly obtained forensic examination reports from the Forgery Detection Private Bureau upon comparative analysis of the signatures of the said two proposers in the nomination papers and the sample signatures contained in the attendance sheets of Mangalwedha Municipal Council on 20.12.2003.

9. Inter alia relying on or on the basis of the reports of the experts as also questioning the mode and manner in which the decision making process had been resorted to by the returning officer, he filed an election petition on 30.12.2003, which was marked as Election Petition No. 1 of 2004.

Based on the above discussion, I am of the opinion that the onus of proof now lies on the defendant. But, the defendant could not furnish such an evidence. Therefore, I have come to the conclusion that the signatures of the disputed 3 1 proposers in the nomination form of defendant Shri Jankar U.S. are not genuine and thereby it will have to be rejected u/s 36(2)(c) of the Representation of the People Act, 1951."

40. In an election petition, the High Court acts as a Court of original jurisdiction and the election petition is a civil trial and the jurisdiction in 3 6 such a trial, stricto sensu cannot be said to be appellate in nature. Clearly, the High Court acted illegally in treating its power only as an appellate authority and not as an original authority for it only proceeded to try and determine as to whether or not the decision making process is legal. That approach of the High court in our considered opinion was illegal and unjustified. The High court was duty bound to treat the matter on merits by framing issues and thereafter calling for production of evidence in support of their respective cases. The High court should have examined the veracity of the rival claims based on the evidence produced by the parties and should have tested the correctness of the affidavits. The opinion of the hand writing expert in that regard would have been sufficient and on the basis of the same it could be possible for the High court to decide the entire lis between the parties. The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention. As the matter has not been adjudicated on merits, we set aside the judgment and order passed by the High Court and remit the matter to the High Court to proceed in accordance with law and decide the dispute raised in the election petition in accordance with law as expeditiously as possible and at least 3 7 within a period of six months from today. Since it is an election petition and is required to be decided within a period of six months, the High Court should make an endeavour to complete the trial within a period of six months from today, if necessary by holding a day to day trial.

42. In view of our findings aforementioned, we are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly and the matter is remitted to the High Court for consideration of the matter 3 8 afresh. The appeal is allowed with the aforementioned directions. However, in the facts and circumstances of the case, there shall be no order as to costs.

May 15, 2009