IMPORTANT POINT
An election petition being original proceedings and not appellate proceedings, the High Court s jurisdiction cannot be confined to the grounds on which the Returning Officer rejected the nomination and the High Court is not precluded from considering any other ground or fresh material bearing on the question of the rejection of the nomination paper but the Court must bear in mind the potential for mischief.

JUDGMENT

A.M. Ahmadi, CJI - By an order dated March 20, 1996, Civil Appeal No. 1795/96 was allowed and the impugned order of the High Court dated Janaury 3, 1996, was set aside. The Civil Appeal No. 3677/96 which was actually cross objections filed by the respondent in Civil Appeal No. 1795/96 was dismissed. The election petition from which the present appeals arose was consequently dismissed. The present judgment is to provide reasons for the above order.

2. First, the facts in brief. Shri Subhan, Khan, the respondent in Civil Appeal No. 1795/96, (hereinafter referred to as the respondent), filed the election petition challenging the election of Shri J.H. Patel, the appellant in C.A. No. 1795/96, from 158 Channagiri Legislative Assembly Constituency on the ground that his (respondent s) nomination paper was improperly rejected by the Returning Officer. One Sri E. Shekharappa, a voter from the same constituency, filed a nomination paper proposing the respondent s name on October 29, 1994. The Returning Officer issued a notice to the respondent to make and subscribe the oath or affirmation before the dated appointed for scrutiny of the nomination paper, that is, November 3, 1994. The preceding two days i.e., November 1, 1994 & November 2, 1994, were public holidays. The respondent came to the office of the Returning Officer on November 3, 1994 at 9.00 a.m. and took oath under Article 173 of the Constitution of India at 10.55 a.m. before the Tehsildar, Channagiri Taluk. The scrutiny was to commence at 11.00 a.m. when the respondent produced the certificate of having taken oath. The Returning Officer rejected the nomination of the respondent. Elections were held on November 26, 1994 and on December 9, 1994, the appellant was declared elected. The respondent challenged the election as void on the ground that the rejection of his nomination was improper. The election petition was contested by the appellant. The High Court held that the oath taken on November 3, 1994, at 10.55 a.m. was not sufficient but that the oath taken on October 27, 1994 at Davanagere Constituency, as required by Article 173 of the Constitution of India as evidenced by Ex. P.1, although not brought to the notice of the Returning Officer at the time of scrutiny, would qualify him to contest the election from the concerned constituency. The High Court further held that the respondent was entitled to raise any fresh ground or produce any fresh material to prove the fact that his nomination paper was improperly rejected and that the fact that the respondent did not bring this fact to the notice of the Returning Officer woud not disentitle him to rely on the fact before the High Court. The High Court accordingly concluded that the rejection of the nomination paper of the respondent was improper and hence set aside the election.

3. The impugned judgment is challenged on the ground that the decision of the High Court in accepting fresh material produced for the first time before it was based on an erroneous understanding of the judgments of this Court in N.T. Veluswami Thevar v. G. Raja Nainar and Others1 and Birad Mal Sanghvi v. Anand Purohit2, that the reasoning of the High Court if accepted would lead to absurb results as mischievous elements could then file nomination at one place and take oath at another and later challenge the rejection of the nomination; that the Returning Officer was right in rejecting the nomination paper on the basis of material placed before him and that the plea of the respondent in the face of his unfair and improper conduct would amount to misuse of the electoral process.

4. In the cross-objections filed by the respondent, he reiterates that the oath taken at 10.55 a.m. on November 3, 1994 was valid and that the finding of the High Court to the effect that he had not brought to the notice of the Returning Officer about the affirmation at Davanagere is incorrect.

5. From the above narration, one question of fact comes up for consideration, na