Kameng Dolo vs Atum Welly on 9 May, 2017

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2991 OF 2017

Kameng Dolo … Appellant

Versus

Atum Welly … Respondent

J U D G M E N T

Dipak Misra, J.

The instant appeal has been preferred under Section 116A of the
Representation of the People Act, 1951 (for brevity, “the Act”) assailing
against judgment and order dated 08.02.2017 whereby the High Court of
Gauhati had allowed the Election Petition 2 of 2014 filed by the respondent
herein, and declared the election of the appellant herein, from No.12 Pakke-
Kessang (ST) Legislative Assembly Constituency (hereinafter referred to as
‘constituency’), as void under Section 100(1)(d)(iv) of the Act.

2. The facts necessary for adjudication of the present appeal are that
the appellant and the respondent filed their respective nomination papers
from the earlier mentioned constituency. No other candidate had filed
nomination papers in respect of the said constituency. Respondent’s younger
brother, Sri Utung Welly was the election agent of the respondent, who was
also a registered voter of the constituency. Nomination papers of both the
candidates were taken up for scrutiny on 24.03.2014 in the office of the
Returning Officer at Seppa where wife and election agent of the respondent
were present; and the nomination papers of both the candidates were found
to be in order. It is stated that the respondent left Seppa for
campaigning in the morning on 25.03.2014 at Rilloh village and on
26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to
30.03.2014. In the evening of 26.03.2014, the respondent learnt about the
withdrawal of his candidature telephonically through his supporters and
relations and on the same day, the website of State Election Commission
displayed withdrawal of candidature by the respondent from the constituency
and consequential election of the appellant from the said constituency
unopposed. Thereafter, the respondent lodged complaint with the Seppa
Police Station which was registered as FIR No. 19/2014 under Sections 468
and 469 IPC.

3. As the factual score further depicts, the respondent filed Election
Petition before the High Court challenging the legality and validity of the
appellant’s election, specifically pleading that the provisions of Section
37
of the Act had not been complied with inasmuch as Form V, the prescribed
format for withdrawal of candidature, had neither been delivered by the
respondent nor his proposer nor his election agent. It was further pleaded
that acceptance of respondent’s withdrawal had materially affected the
election and prayed for declaration for setting aside the election.

4. The appellant filed his written statement contending, inter alia,
that the respondent was himself instrumental in withdrawing the
candidature; that Returning Officer had found respondent’s signature in the
withdrawal Form to be genuine; that the person who had submitted the
withdrawal from was well known to the respondent and this fact had been
suppressed in the election petition; that to assuage his supporters after
their violent reaction, respondent had filed the election petition; that
plea of statutory violation alone would not be enough to set aside an
election result; that the allegation by the respondent that his signature
was forged is an afterthought; that the withdrawal of his nomination papers
by the respondent from contesting the election from the said constituency
was an act of his own accord and volition; and that the unopposed election
of the appellant was as per due procedure of law; and that the election,
being totally devoid of merit, deserved dismissal.

5. The High Court, after considering the pleadings, framed the following
issues:-

“1. Whether the petitioner gave any notice in writing in terms of Section
37(1)
of the Act, read with Rule 9(1) of the Conduct of Election Rules,
1961 for withdrawal of his candidature from the constituency and delivered
the same in a statutorily prescribed manner either personally or through
his proposer or election agent so authorised in this behalf in writing by
the petitioner?

2. Whether the person who submitted the withdrawal of the nomination
form of the petitioner to the Returning Officer of the Constituency was
authorised to do so by the petitioner himself?

3. Whether the Returning Officer of the Constituency acted in compliance
of the requirements of Section 37(3) of the Act and Rule 9 of the Conduct
of Election Rules, 1961 while accepting the notice of withdrawal of
petitioner’s candidature from the constituency?

4. Whether the Returning Officer of the constituency acted legally in
declaring the result of election to Arunachal Pradesh State Legislative
Assembly from the constituency under Section 53(2) of the Conduct of
Election Rules, 1961 and declaring respondent duly elected uncontested from
the said constituency?

5. Whether election of the respondent to the Arunachal Pradesh State
Legislative Assembly from the constituency is liable to be held void?

6. Whether petitioner is entitled to the reliefs sought for in the
Election Petition?”

6. It was contended before the High Court by the respondent that as per
Sections 37(1) and 37(3), the candidature can be withdrawn only by the
candidate himself in person or by his proposer or by his election agent
authorized in this behalf in writing by the candidate; that the Returning
Officer must satisfy himself as to the genuineness of the notice of
withdrawal as well as the identity of the person who delivered the notice
of the withdrawal and in the instant case there was clear violation of
Section 37 of the Act which had materially affected the outcome of the
election inasmuch as when there were only two candidates; and that evidence
on record clearly suggested that neither the respondent nor his proposer
nor his election agent had submitted the notice of withdrawal and as such
the election of the appellant should be declared as void under Section
100(1)(d)(iv)
of the Act.

7. Learned counsel for the appellant herein contended before the High
Court that election law has to be construed strictly and interpretation
must be adopted which upholds the election of the returned candidate and
there is no place for equitable consideration in election law.

8. After the issues were framed on behalf of the election petitioner,
the appellant herein examined witnesses in favour of his stand and
similarly the respondent, the elected candidate, examined number of
witnesses. The designated election Judge took note of the rivalised
submissions raised at the Bar and noted the decisions relied upon by the
election petitioner in support of the stand, that is, Durai Muthuswami v.
N. Nachiappan
and others[1], State (Delhi Administration) v. Pali Ram[2],
Murari Lal v. State of Madhya Pradesh[3], A. Neelalohithadasan Nadar v.
George Mascrene
and others[4], Virender Nath Gautam v. Satpal Singh and
others[5], Ram Sukh v. Dinesh Aggarwal[6], Jitu Patnaik v. Sanatan Mohakud
and others
[7], Maria Margarida Sequeira Fernandes and others v. Erasmo Jack
De Sequeira (Dead
) through LRs.[8], Her Highness Maharani Vijaya Raje
Scindhia[9], Jagan Nath v. Jaswant Singh others[10], Santokh Singh v.
Mohan Singh
[11].

9. Learned counsel for the respondent, the elected candidate argued
before the High Court that interpretation should be adopted which shall
uphold the election of the return candidate and it should not allow any
room for any kind of stretched interpretation. It was also urged by him
that strict constriction is required and not an equitable one. The learned
counsel for the elected candidate, referring to Section 100 of the Act,
highlighted that in the absence of any pleading with regard to corrupt
practices, the election of the elected candidate could not be unsettled. He
had drawn support from the authority in Mangani Lal Mandal v. Bishnu Deo
Bhandari
[12]. Additionally, it was urged by him that it is essential that
election petitioner should not only breach or non-observe any
constitutional or statutory provision, but must establish that such breach
or non-observance had materially affected the result of the returned
candidate. It was put forth that what had been averred is that, there had
been violation of the Section 37 of the Act but nothing has been stated
that the said violation in itself materially affected the election result.
The High Court posed the question that the real test is whether
contravention of the statutory provision alleged to have changed the result
of the election and took note of this stance of the candidate whose
nomination paper was not accepted and the stand set forth by the elected
candidate that the evidence brought on record was not conclusive and the
authorities cited by the election petitioner were absolutely
distinguishable. The elected candidate was extremely critical of the non-
examination of star witnesses like Sri Sanjeev Tana and Dr. Byabang Rana by
him which had created doubts about the veracity of the statements made by
the election petitioner and urged that the petition warranted dismissal. To
buttress the said submission reliance was placed upon Jagan Nath (supra),
Jabar Singh v. Genda lal[13], South Indian Corporation (P) Ltd v.
Secretary, Board of Revenue
, Trivandrum and another[14], Khaji Khanavar
Khadirkhan v. Siddavanballi Nijalingappa another
[15], Samant N.
Balkrishna v. George Fernandez
and others[16], Smt. Bhagwan Karu v. Shri
Maharaj Krishan Sharma and others[17], Magan Bihari Lal v. State of
Punjab
[18], Narender Singh v. Mala Ram and another[19], Jeet Mohinder Singh
v. Harminder Singh Jassi
[20], K.T. Plantation Pvt Ltd v. State of
Karnataka
[21], T.A. Ahammed Kabeer v. A.A. Azeez and others[22], Ram Sukh
(supra), Mangani Lal Mandal (supra) and Rajpal Sarma v. State of U.P[23].

10. The learned judge scanned the anatomy of Section 37 and took note of
various principles that emerged from the said provision, and after
referring to Sections 83 and 100, which fundamentally deal with material
facts, the language employed under Section 100, dwelt upon the evidence on
record both oral and documentary analysed the legal provisions and came to
hold as follows:-

“29. The Returning Officer of the constituency at relevant point of time,
Sri. Tarin Dakpe deposed as PW 4. He stated that on the last date for
filing of nomination papers in the constituency, nomination papers of only
two candidates were received, namely, petitioner and respondent. After
scrutiny, nomination papers of both the candidates were found to be valid
and accordingly accepted. There was no contest in the constituency because
candidature of the petitioner was withdrawn, as a result of which only the
respondent remained in the fray. 26.03.2014 was the last date for
withdrawal of nomination. On that day, around 11.00 hours he received a
notice for withdrawal of candidature in Form No. 5 from the petitioner
through fax. He did not take cognizance of the same. thereafter, he
received a telephone call from Dr. Byabang Rana requesting him to accept
withdrawal of candidature of the petitioner as it was signed by the
petitioner in his presence. Dr. Rana also informed him that the said Form
No.5 was being sent through one Sri Sanjeev Tana. Thereafter, Sri Sanjeev
Tana personally came to the office of PW4 at 01.30 pm on 26.03.2014 and
handed over the duly filled up Form No.4 in original bearing signature of
the petitioner along with his authority letter. He admitted that Sri
Sanjeev Tana was neither the proposer nor election agent of the petitioner.
However, he got the withdrawal notice affixed in the notice board of his
office after 3.00 p.m. thereafter, he declared respondent to be the elected
candidate at around 06.00 p.m. of 26.03.2014.

29.1. In his cross-examination, he stated that during the phone call from
Dr. Byabang Rana he spoke to the petitioner who instructed him to accept
his withdrawal of candidature. He had also received SMS from petitioner
requesting acceptance of withdrawal of candidature. Wife of the petitioner
approached him personally on 27.03.2014 and wanted to know as to how the
withdrawal had taken place. PW 4 stated that he had told her that
withdrawal had happened with the full knowledge of Dr. Byabang Rana and
petitioner.

30. PW 5, Sri Jamoh was the investigating officer at Seppa PS Case
No.19/2014 in his evidence-in- chief, he has stated that investigation of
the said case is not complete because he does not have access to the
original documents, though in the meanwhile, he had examined seven persons.
In the course of examination, he had arrested Sri Sanjeev Tana. In his
cross-examination, he stated that though on 26.03.2014 complaint letter was
sent to the Superintendent of Police, Seppa through fax, he refused to
accept the same because signature of the complainant was not there.”

And again:

“33. Before moving on to some of the exhibits, it would be appropriate to
see what exactly is the testimony of Dr. Byabang Rana, DW 9. Dr. Byabang
Rana deposed as DW 9. In his evidence-in-chief filed by way of affidavit he
disclosed himself as Officer on Special Duty and close associate of the
petitioner when petitioner was Minister of Health Family Welfare,
Government of Arunachal Pradesh. He stated that on 26.03.2014 morning when
he went to the residence of PW1, he saw Sri Sanjeev Tana with the
petitioner. Petitioner requested him to fill up Form No.5 and accordingly,
he filled up Form No.5 by his own hand writing in presence of the
petitioner. Petitioner signed form No.5 in his presence. As per instruction
of the petitioner, he handed over Form No.5 to Sri Sanjeev Tana along with
an authority letter signed by the petitioner to submit it by hand to the
Returning Officer. Form No.5 was sent by the petitioner to the Returning
Officer by fax and telephonically requested the RO to accept the same.
Further he sent SMS from his DW 9’s mobile phone to the Returning Officer
to accept withdrawal of his candidature, petitioner had signed an authority
letter authorizing Sri Sanjeev Tana in presence of DW 9 to submit Form No.5
to the Returning Officer. Cross-examination of this witness was declined by
the petitioner.

34. Ext.9 is the authority letter dated 26.03.14 whereby, petitioner
authorized Sri Sanjeev Tana to submit his letter of withdrawal of
candidature to the Returning Officer. Ext. 9(2) is the signature of the
petitioner. Ext.10 is the notice of withdrawal of candidature n Form No.5
and signature of petitioner is Ext. 10(1A). Ext.11 is the receipt of notice
of withdrawal issued by the Returning Officer. Ext.15 is the list of
documents which were found on opening of the sealed packet by the Returning
Officer on 06.05.2014 in the presence of petitioner and representative of
respondent. At SI No.3 thereof corresponding to page 73, it is a photocopy
of notice of withdrawal. At SI No.4 corresponding to page 74, it is photo
copy of receipt of notice of withdrawal. At SI. No.5 corresponding to page
75, it is photo copy of authority letter of the petitioner authorizing Sri
Sanjeev Tana for withdrawal of candidature. At SI No.6 corresponding to
page 75 is the notice of withdrawal of candidature in original. Ext.19 is
the forensic examination report of Central Forensic Science Laboratory,
Guwahati dated 15.05.2014. As per this report prepared by PW 7, the person
who wrote the enclosed signatures stamped and marked S1 to S4 and A1 to A16
did not write the red enclosed signature similarly stamped and marked Q2.
Regarding ownership of signature marked Q1, no opinion was expressed
because it was a copy and also a non-hand written one which he explained in
his evidence to mean fax/xerox or photo copy or any other form of
reproduction. It was also mentioned that the questioned signatures
fundamentally differs from the standard signatures in hand writing
characteristics. The differences are fundamental in nature and beyond the
range of natural variation. Considering the differences in hand writing
characteristics between the questioned and standard set of signatures
coupled with signs of imitation observed in the questioned signatures, PW 7
arrived at the opinion of different ownership.”

11. Thereafter, the High Court, analysing the framework of Section 100 in
the context of Section 37, held thus:

“38. Reverting back to Section 37, as already discussed above in the
earlier part of this judgment, sub-section(1) thereof relates to the
candidate and sub-section (3) relates to the Returning Officer. As per sub-
section (1), a candidate may withdraw his candidature by a notice in
writing in Form-5 which must be delivered to the Returning Officer before
the appointed time and date. Such delivery should either be by the
candidate himself in person or by his proposer or by his election agent who
has been authorized in this behalf in writing by the candidate. Therefore,
requirement of sub-section (1) is giving of notice of withdrawal in
prescribed format by the candidate before the appointed time and date and
the same must be delivered to the Returning Officer by any of the three
specified persons, namely, candidate himself in person or by his proposer
or by his election agent. If it is the election agent, then he must be
authorized in this behalf in writing by the candidate.

READ  Babu @ Balasubramaniam & Anr vs State Of Tamil Nadu on 2 July, 2013

39. Proceeding to sub-section(3), which deals with the Returning Officer,
it says that the Returning Officer shall cause notice to be affixed in some
conspicuous place in his office after being satisfied as to the genuineness
of the notice of withdrawal and the identity of the person delivering then
notice under sub-section(1). Therefore, it is the requirement of law that
the Returning Officer must first satisfy himself as to the genuineness of
the notice of withdrawal as well as identity of the person delivering the
notice under sub-section(1), i.e., whether he is the candidate himself in
person or his proposer or his election agent; if he is the election agent,
then whether he has been authorized in writing by the candidate himself.
Only after being satisfied as to the genuineness of the above two, notice
is to be affixed as above.

40. In the election petition, petitioner has pleaded in paragraph-8 that
he did not write any notice of withdrawal of his candidature. Since he was
not present at Seppa on 26.03.2014 and did not write any notice of
withdrawal question of him personally delivering such notice to the
Returning Officer at Seppa did not arise. He has also stated that he didn’t
authorize Sri Ravindra Tana or his election agent Sri Utung Welly to write
such notice or to deliver the same to the Returning Officer. As a fact, on
26.03.2014, both of them were not at Seppa. The averments from paragraphs
10 to 13 and from paragraphs 16 to 26 of the election petition reflect the
steps taken by the petitioner following acceptance of withdrawal of his
candidature by the Returning Officer. While in paragraph 27, petitioner has
averred that withdrawal of his candidature and acceptance of the same by
the Returning Officer were in violation of sub-sections (1) and (3) of
Section 37, this is reiterated in paragraphs 28 and 29. In paragraphs 30
and 31, Election petitioner has pleaded they illegal acceptance of his
purported withdrawal it candidature had materially affected the result of
the Election and therefore unopposed Election of the respondent has been
rendered void under section 100(1)(d)(iv) of the Act.”

12. The High Court, as is perceptible, took note of the evidence of PW-
1, who in his evidence, has categorically stated that he had neither given
any notice of withdrawal of candidature nor did he authorise anyone
including his proposer or agent to submit such application. PW-4 in his
evidence, stated that he received a call from PW-9 requesting him to accept
the notice of withdrawal of candidature of the petitioner and DW-9 informed
him that notice was being sent through Sri Sanjeev Tana and the said person
handed over the notice of withdrawal in Form 5 to PW-4 along with the
authority letter. The High Court took note of the fact that the
authority letter in original was not available and only a photocopy of the
said is available which had been proved as Ext. 9. According to the
evidence of DW-9, he stated that he had filled up Form No. 5, i.e., notice
of withdrawal in his own hand writing in the presence of the petitioner and
who signed the same in his presence whereafter it was handed over to Sri
Sanjeev Tana who was present at the time of filing up of Form No. 5 and
thereafter Sri Sanjeev Tana went to the Returning Officer with Form No. 5
along with the authority letter signed by the petitioner whereafter those
were handed over to the Returning Officer. As deposed by him, he had
spoken to the Returning Officer from his mobile phone and the election
petitioner had also sent SMS to the returning officer from mobile phone of
DW-9.

13. The High Court, as is evident, opined Sri Sanjeev Tana was neither
the candidate himself nor the proposer nor the election agent of the
candidate and, therefore, he was not authorized to seek withdrawal of the
candidature. As is seen, the High Court placed reliance on Her Highness
Maharani Vijaya Raje Scindhia (supra) wherein it has been held that the
violation of the statute must materially affect the result of the election.
Thereafter, the High Court referred to the principles stated in Jagan Nath
(supra) that statutory requirement of election letter must be strictly
observed and that an election contest is not an action at law or a suit in
equity but is purely a statutory proceeding unknown to the common law. It
opined that where a statute provides that a thing should be done in a
particular manner, it would be done in the manner prescribed and not in any
other way. Origin of this basic proposition of law is traceable to the
English decision in Taylor v. Taylor followed by the Privy Council in Nazir
Ahmed v. The King Emperor[24]. This rule has since been applied to Indian
Courts across jurisprudences. After so stating, the High Court observed:-
“46. However, it is to be noted that PW7, the expert witness, who had
prepared the forensic examination report, opined that the two signatures
attributed to the petitioner were not his. Though evidence of PW7 is in
the form of an opinion, yet in the context of the evidence adduced, it may
be a pointer to possible foul play. However, that is in the realm of
criminal investigation and need not detain the Court in this proceeding in
view of the finding reached that there was violation of Section 37 of the
Act. The expression ‘material facts’ as appearing in section 83(1)(a) of
the Act has neither been defined in the Act nor in the Code of Civil
Procedure. Referring to the dictionary meaning, the Supreme Court in
Birendra Nath Gautam (supra) held that ‘material’ means fundamental, vital,
basic, cardinal, central, crucial, decisive, essential, pivotal,
indispensable, elementary or primary. Thus it was held that the expression
‘material facts’ would mean those facts upon which the party relies for his
claim or defence. What particulars are ‘material facts’ would depend upon
the facts of each case and no rule of universal application can be laid
down. However, it is essential that all basic and ‘material facts’ which
must be proved at the trial by the party to establish existence of a cause
of action or defence are ‘material facts’ and must be stated in the
pleading by the party. This position has been reiterated by the Supreme
Court in Jitu Patnaik (supra).”

14. And adverting to the materially affecting the election of the
constituency, the High Court held:-

“49. Since this has been the main argument of learned counsel for the
respondent, a further elaboration of the order extracted above is
necessary. The proposition advanced by the learned counsel for the
respondent backed by a series of judicial pronouncements would certainly be
acceptable in a case where there are more than two candidates in the fray;
say candidates A, B and C or candidates A, B, C and D. in either of the two
situations, if candidate C withdraws his candidature, still an electoral
contest would be inevitable between candidates A and B in the first
situation and between candidates A, B and D in the second situation. Say
after the electoral contest, candidate B emerges victorious. In such a
scenario, candidate C, whose candidature was withdrawn and if he challenges
acceptance of such withdrawal, he has not only to plead and prove violation
of section 37 of the Act but has also to plead and prove that such
violation had materially affected the election of candidature B. This is
precisely what was held in Vijaya Raje Scindhia (supra). But as has been
held by this Court in the order dated 27.10.2014 as extracted above, in a
case where there are only two candidates in the electoral fray, namely
candidates A and B, and if candidate A withdraws his candidates A and B,
and if candidate A withdraws his candidature and such withdrawal is
contended to be illegal being in violation of section 37 of the Act
relating to withdrawal of candidature of candidate A would materially
affect the election inasmuch as candidate B would automatically stand
elected unopposed.

50. It is true that it is a well settled proposition that election of a
candidate who has won at an election should not be lightly interfered with.
But at the same time, it has also to be borne in mind that one of the
essentials of election law is to safeguard the purity of the election
process and to see that people do not get elected by flagrant breaches of
that law or by corrupt practices. In the instant case, as discussed above,
there was no contest at all and there can be no manner of doubt that there
was flagrant breach of section 37 of the Act leading to unopposed election
of the respondent.”

15. In view of the aforesaid analysis, it opined that the election had
been materially affected and accordingly declared the election result dated
15.03.2014 as void under Section 100(1)(d)(iv) of the Act. Being of this
view, it allowed the election petition.

16. At the commencement of the hearing, we have heard Mr. Soli Sorabjee,
learned senior counsel and on the adjourned date, Mr. Preetesh Kapur,
learned counsel for the appellants addressed the Court. We have heard Mr.
C.A. Sundaram and Mr. Subramonium Prasad, learned senior counsel for the
respondent.

17. Before we delve into the legal position, the statutory provisions are
to be kept in view. Part V of the Act deals with the conduct of elections.
Section 30 provides for appointment of date for nomination. Section 31
stipulates that Returning Officer shall give notice of the intended
election in such form and manner as may be prescribed inviting nominations
of candidates for such election and specifying the place at which the
nomination papers are to be delivered. Section 32 deals with the nomination
of candidates for election and Section 33 provides for presentation of
nomination paper and requirements for a valid nomination. Section 33A
postulates what information the candidates shall furnish apart from any
information which he is required to furnish under the Act or the Rules
framed hereunder. Be it noted, Section 33A came into force with effect
from 24.8.2002. It is also worthy to note here that Section 33B was
inserted stating that candidate to furnish information only made under the
Act and the Rules vide Amendment Act 72 of 2002 with effect from 2.5.2002,
but that has been struck down as unconstitutional by this Court in People’s
Union for Civil Liberties v. Union of India[25]. Section 34 deals with
deposits and Section 35 provides for notice of nominations and the time and
place of their scrutiny and Section 36 deals with scrutiny of nominations.
As has been held earlier, it is an admitted position that the nominations
papers of the appellant and the respondent were scrutinised and they were
found to be valid.

18. Section 37 of the Act is the provision that calls for interpretation
in this case. The said Section reads as follows:-

“37. Withdrawal of candidature.—

(1) Any candidate may withdraw his candidature by a notice in writing
which shall contain such particulars as may be prescribed and shall be
subscribed by him and delivered before three O’clock in the afternoon on
the day fixed under clause (c) of section 30 to the returning officer
either by such candidate in person or by his proposer, or election agent
who has been authorised in this behalf in writing by such candidate.

(2) No person who has given a notice of withdrawal of his candidature
under sub-section (1) shall be allowed to cancel the notice.

(3) The returning officer shall, on being satisfied as to the genuineness
of a notice of withdrawal and the identity of the person delivering it
under sub-section (1), cause the notice to be affixed in some conspicuous
place in his office.”

19. On plain reading of the said provision, it is clear as crystal that a
candidate is entitled to withdraw the candidature by notice in writing and
the said notice shall contain such particulars as may be prescribed and the
said notice shall be signed by him and delivered before three O’clock in
the afternoon on the date fixed under Clause (c) of Section 30 to the
Returning Officer. Clause (c) of Section 30 reads as follows:-
“(c) the last date for the withdrawal of candidatures, which shall be the
second day after the date for the scrutiny of nominations or, if that day
is a public holiday, the next succeeding day which is not a public holiday”

20. Thus, the candidate has to comply with the Clause (c) of Section 30
and the notice has to be in writing, it shall contain such particulars as
may be prescribed and it shall be subscribed to him and delivered as
stipulated under Clause (c) of Section 30 to the Returning Officer. The
said notice, as sub-section (1) of Section 37 lays down, is to be delivered
to the Returning Officer either by the candidate in person or by his
proposer or election agent who has been authorised in this behalf in
writing by such candidate. Be it noted, sub-section (2) of Section 37
prescribes that no person who has given a notice of withdrawal of his
candidature under sub-section (1) shall be allowed to cancel the notice.
That reflects the sanctity of withdrawal by a candidate. Sub-section (3)
of Section 37, as is manifest, makes its obligatory on the part of the
Returning Officer to be satisfied as to the genuineness of the notice of
withdrawal and the identity of the person delivering it. Thereafter, he
shall cause the notice to be affixed in some conspicuous place in his
office.

21. In the case at hand, from the evidence of the Returning Officer, it
is explicit that withdrawal of the candidature was not made by the
candidate or by his proposer or his election agent. The evidence of the
Returning Officer reads as follows.

“26.03.2014 was the last date for withdrawal for nomination. On that date
around 1100 hrs., I received a duly filled Form No. 5 i.e., a notice for
withdrawal through fax from Sri Atum Welly, BJP candidate for 12 Pakke
Kesang Legislative Assembly Constituency, but I did not take cognizance of
the same. Thereafter, I received a telephonic call from Dr. Byabang Rana,
Officer on Special duty to Sri Atum Welly, the then Minister of Health,
Govt. of Arunachal Pradesh, requesting me to accept the withdrawal of
nomination of Sri Atum Welly, as according to Dr. Byabang Rana the said
Form No. 5 was signed by Sri Atum Welly in the presence of Dr. Byabang
Rana.”

x x x x x x x x
“Since I know Sri Sanjeev Tana personally, I also know that during the
relevant point of time i.e. 2014 Arunachal Pradesh Legislative Assembly
election, Sri Tana Sanjeev was neither a proposer nor the election agent of
Sri Atum Welly for 12 Pakke Kesang (ST) Legislative Assembly Constituency.
Under the law, it is only either the candidate personally, the proposer or
election agent duly authorised by candidate are competent and eligible to
file Form No. 5 for withdrawal of nomination of a candidate.”

22. From the aforesaid evidence, it is quite luminous that neither the
candidate delivered the notice of withdrawal nor his proposer nor his
election agent and there was no authorisation for the same to the proposer
or election agent. To elucidate, if the candidate gives the notice himself
ascribing to it, there can be no confusion. The only thing that the
Returning Officer has to see is to verify the identity of the candidate and
genuineness of the signature. The other two categories who can issue the
notice has to satisfy certain conditions precedent. The notice has to be in
writing, the proposer or the election agent must be in that capacity and
they must have been authorised in this behalf in writing by such candidate.
In the present case, there has been total non-compliance of Section 37 of
the Act.

READ  Gorakh Ramkrushna Mourya-vs-State Of Maharashtra on 25 July, 2011

23. The seminal question that emanates for consideration is what is the
effect of acceptance of such withdrawal of the candidature that is in total
non-compliance with the law. Mr. Sorabjee argued that though withdrawal of
the candidature is treated to be non-compliant with the statutory
provisions, yet it is obligatory on the part of the elected candidate to
satisfy the court or the election tribunal that it has materially affected
the election. The said argument was carried forward by Mr. Kapur on the
next date. Emphasis has been laid on Section 100 of the Act. Section 100
of the Act deals with the grounds for declaring election to be void. For
apposite appreciation, the provision is reproduced in entirety:
“100. Grounds for declaring election to be void.—

(1) Subject to the provisions of sub-section (2) if the High Court is of
opinion—

(a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under the
Constitution or this Act or the Government of Union Territories Act, 1963
(20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with the consent of a returned
candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected—

by the improper acceptance or any nomination, or
by any corrupt practice committed in the interests of the returned
candidate by an agent other than his election agent, or
by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void, or
by any non-compliance with the provisions of the Constitution or of this
Act or of any rules or orders made under this Act,

the High Court shall declare the election of the returned candidate to be
void.

(2) If in the opinion of the High Court, a returned candidate has been
guilty by an agent other than his election agent, of any corrupt practice
but the High Court is satisfied—

that no such corrupt practice was committed at the election by the
candidate or his election agent, and every such corrupt practice was
committed contrary to the orders, and without the consent, of the candidate
or his election agent;

that the candidate and his election agent took all reasonable means for
preventing the commission of corrupt practices at the election; and

that in all other respects the election was free from any corrupt practice
on the part of the candidate or any of his agents,

then the High Court may decide that the election of the returned candidate
is not void.”

24. It is submitted by the learned counsel for the appellant that Section
100(1)(d)
is inextricably connected with the concept and election being
materially affected and unless that is proven or established, an election
cannot be set aside. In this regard, learned counsel for the appellant has
commended us to certain authorities and we shall refer to the same.

25. In Mangani Lal Mandal (supra), this Court was dealing with an appeal
arising from the judgment passed by the High Court of Patna where the
election of the appellant was set aside. To set aside the election, the
High Court heavily placed reliance upon two decisions of this Court,
namely, Union of India v. Association for Democratic Reforms[26] and
People’s Union for Civil Liberties (supra) and held that suppression of
facts by the returned candidate with regard to the assets and liability of
his first wife and dependent children born in that wedlock was breach of
Article 19(1)(a) and for such breach and non- compliance the candidate who
had not complied with and breached right to information of electors and on
the election to suffer consequence of such non-compliance and breach and
accordingly set aside the election. This Court, after reference to Section
100(d)(iv)
came to hold as follows:-

“10. A reading of the above provision with Section 83 of the 1951 Act
leaves no manner of doubt that where a returned candidate is alleged to be
guilty of non-compliance with the provisions of the Constitution or the
1951 Act or any rules or orders made thereunder and his election is sought
to be declared void on such ground, it is essential for the election
petitioner to aver by pleading material facts that the result of the
election insofar as it concerned the returned candidate has been materially
affected by such breach or non-observance. If the election petition goes to
trial then the election petitioner has also to prove the charge of breach
or non-compliance as well as establish that the result of the election has
been materially affected. It is only on the basis of such pleading and
proof that the Court may be in a position to form opinion and record a
finding that breach or non-compliance with the provisions of the
Constitution or the 1951 Act or any rules or orders made thereunder has
materially affected the result of the election before the election of the
returned candidate could be declared void.

11. A mere non-compliance or breach of the Constitution or the statutory
provisions noticed above, by itself, does not result in invalidating the
election of a returned candidate under Section 100(1)(d)(iv). The sine qua
non for declaring the election of a returned candidate to be void on the
ground under clause (iv) of Section 100(1)(d) is further proof of the fact
that such breach or non-observance has resulted in materially affecting the
result of the returned candidate. In other words, the violation or breach
or non-observation or non-compliance with the provisions of the
Constitution or the 1951 Act or the rules or the orders made thereunder, by
itself, does not render the election of a returned candidate void Section
100(1)(d)(iv)
. For the election petitioner to succeed on such ground viz.
Section 100(1)(d)(iv), he has not only to plead and prove the ground but
also that the result of the election insofar as it concerned the returned
candidate has been materially affected. The view that we have taken finds
support from the three decisions of this Court in: (1) Jabar Singh v. Genda
Lal
[27]; (2) L.R. Shivaramagowda v. T.M. Chandrashekar[28]; and (3) Uma
Ballav Rath v. Maheshwar Mohanty
[29].”

26. After so holding, the Court opined that in the entire election
petition there was no pleading at all that suppression of the information
by the returned candidate in the affidavit filed along with nomination
papers with regard to first wife and dependent children from her and non-
disclosure of that assets and liabilities materially affected the result of
the election.

27. The analysis of the aforesaid dictum makes it graphically clear that
to sustain the ground as stipulated under Section 100(1)(d)(iv), the
election petitioner is required not only to plead and prove the ground but
also to establish the result of the election of the returned candidate
concerned has been materially affected. In this context, it is fruitful to
refer to the law enunciated in Santosh Yadav v. Narender Singh[30]. In the
said case, there were 17 candidates including the appellant and the
respondent who remained in the fray of contest in the constituency in
question. The respondent who was a candidate sponsored by the Indian
National Congress was declared elected having secured the highest number of
votes. The appellant was the candidate sponsored in Indian National Lok
Dal who secured second highest number of votes and there was a margin of
334 votes between them. In the election petition filed by the appellant
before the High Court, one of the grounds taken in the election petition
was that nomination of Narender Singh was improperly accepted as he had
been convicted under Section 30B and Section 498A IPC and was sentenced to
undergo rigorous imprisonment for seven years and one year respectively
apart from fine. Be it noted, the High Court, in appeal, had suspended
execution of the sentence of imprisonment. The learned designated Election
Judge of the High Court refused to set aside the election of the respondent
as, in his opinion, the election petitioner had failed in discharging the
onus of proof that the result of the election insofar as it concerns the
respondent, the returned candidate, had been materially affected. This
Court posed the question whether the High Court was right in forming the
opinion that on established facts and circumstances of the case, the
appellant had failed in proving that the election of the respondent was
materially affected by improper acceptance of the nomination papers of
Naresh Yadav. Dealing with the same, the Court held:

“9. A few decisions were cited at the Bar and it will be useful to make a
review thereof. In Vashist Narain Sharma v. Dev Chandra[31] the candidate
whose nomination was improperly accepted had secured 1983 votes while the
margin of votes between the winning candidate and the next- below
candidate was 1972. This Court held that having been called upon to record
a finding that “the result of the election has been materially
affected”, the result should not be judged by the mere increase or decrease
in the total number of votes secured by the returned candidate but by proof
of the fact that wasted votes would have been so distributed between the
contesting candidates as would have brought about the defeat of
the returned candidate. The Court emphasized the need of proof
by affirmative evidence and discarded the test of a mere possibility to say
that the result could have been different in all probability. The question
is one of fact and has to be proved by positive evidence. The Court
observed that the improper acceptance of a nomination paper may have, in
the result, operated harshly upon the petitioner on account of his failure
to adduce the requisite positive evidence but the Court is not concerned
with the inconvenience resulting from the operation of the law.
The Court termed it “impossible” to accept the ipse dixit of witnesses
coming from one side or the other to say that all or some of the votes
would have gone to one or the other on some supposed or imaginary ground.

In Samant N. Balkrishna v. George Fernandez this Court
recognized that proof of material effect on the result of the
election insofar as a returned candidate is concerned on
account of a miscarriage occasioned by improper acceptance
of nomination paper at an election may be a simple

impossibility. The Judge has to enquire how the election would have gone if
the miscarriage would not have happened and that enquiry
would result virtually placing the election not in the hands of the
constituency but in the hands of the Election Judge. The Court held that
neither could the matter be considered on possibility nor was
there any room for a reasonable judicial guess. The law
requires proof; how far that proof should go or what it should contain is
not provided by the legislature; but the insistence on proof cannot be
dispensed with. In Shiv Charan Singh v. Chandra Bhan Singh[32] this Court
pointed out that proof of material effect on the result of the election in
a case of improper acceptance of nomination paper involved the harsh and
difficult burden of proof being discharged by the election
petitioner adducing evidence to show the manner in which the wasted ballots
would have been distributed amongst the remaining validly nominated
candidates and in the absence of positive proof in that regard the election
must be allowed to stand and the court should not interfere with the
election on speculation and conjectures.”

28. Thereafter, the Court referred to Tek Chand v. Dile Ram[33] wherein
it has been held that:

“..the mere fact that the number of votes secured by a candidate whose
nomination paper was improperly accepted, was greater (more than three
times in that case) than the margin of the difference between the votes
secured by the returned candidate and the candidate securing the next
higher number of votes, was not by itself conclusive proof of material
effect on the election of the returned candidate.”

29. Thereafter, the Court summed up the law as regards the result of
election having been materially affected in case of improper acceptance of
nomination papers. They are as follows:-

“2. Merely because the wasted votes are more than the difference of votes
secured by the returned candidate and the candidate securing the next
highest number of votes, an inference as to the result of the election
having been materially affected cannot necessarily be drawn. The issue is
one of fact and the onus of proving it lies upon the petitioner.

3. The burden of proving such material effect has to be discharged by the
election petitioner by adducing positive, satisfactory and cogent evidence.
If the petitioner is unable to adduce such evidence the burden is not
discharged and the election must stand. This rule may operate harshly upon
the petitioner seeking to set aside the election on the ground of improper
acceptance of a nomination paper, but the court is not concerned with the
inconvenience resulting from the operation of the law. Difficulty of proof
cannot obviate the need of strict proof or relax the rigour of required
proof.

4. The burden of proof placed on the election petitioner is very strict and
so difficult to discharge as nearing almost an impossibility. There is no
room for any guesswork, speculation, surmises or conjectures i.e. acting on
a mere possibility. It will not suffice merely to say that all or the
majority of wasted votes might have gone to the next highest candidate. The
law requires proof. How far that proof should go or what it should contain
is not provided by the legislature.

5. The casting of votes at an election depends upon a variety of factors
and it is not possible for anyone to predicate how many or which proportion
of the votes will go to one or the other of the candidates. It is not
permissible to accept the “ipse dixit” of witnesses coming from one side or
the other to say that all or some of the votes would have gone to one or
the other on some supposed or imaginary ground.”

30. After such summation, the Court analysed the materials on record and
concurred with the view of the High Court that the appellant, election
petitioner, had failed in discharging the heavy burden which lay on her of
proving that the result of election, insofar as it concerns the returned
candidate, had been materially affected by improper acceptance of the
nomination of Shri Naresh Yadav.

31. To sustain the conclusion of the High Court, the Court analysed the
evidence and recorded the following finding:-

“It needs hardly any evidence to hold, as one can safely assume that the
appellant must have openly and widely propagated herself as INLD candidate
and made it known to the constituency that she was the official candidate
sponsored by INLD and Shri Naresh Yadav was not an INLD-sponsored candidate
and was a defector. Therefore, it is difficult to subscribe to the
suggested probability that any voter committed to INLD ideology would have
still voted for Shri Naresh Yadav merely because he had for a period of two
years before defection remained associated with INLD.”

READ  Rajendra Nath Chopra & Ors vs State on 3 April, 2013

32. Learned senior counsel for the appellant has drawn our attention to
the authority in Rajendra Kumar Meshram v. Vanshmani Prasad Verma[34]. In
the said case, the two-Judge Bench while dealing with the violation under
Section 100(1)(d) opined:-

“10. Under Section 100(1)(d), an election is liable to be declared void on
the ground of improper acceptance of a nomination if such improper
acceptance of the nomination has materially affected the result of the
election. This is in distinction to what is contained in Section 100(1)(c)
i.e. improper rejection of a nomination which itself is a sufficient ground
for invalidating the election without any further requirement of proof of
material effect of such rejection on the result of the election. The above
distinction must be kept in mind. Proceeding on the said basis, we find
that the High Court did not endeavour to go into the further question that
would be required to be determined even if it is assumed that the appellant
returned candidate had not filed the electoral roll or a certified copy
thereof and, therefore, had not complied with the mandatory provisions of
Section 33(5) of the 1951 Act.

11. In other words, before setting aside the election on the above ground,
the High Court ought to have carried out a further exercise, namely, to
find out whether the improper acceptance of the nomination had materially
affected the result of the election. This has not been done notwithstanding
Issue 6 framed which is specifically to the above effect. The High Court
having failed to determine the said issue i.e. Issue 6, naturally, it was
not empowered to declare the election of the appellant returned candidate
as void even if we are to assume that the acceptance of the nomination of
the returned candidate was improper.”

33. As we find from the aforesaid two paragraphs, the Court has drawn
distinction between improper acceptance of a nomination for such improper
acceptance of the nomination has to materially affect the result of the
election and the case of improper rejection of a nomination which itself is
a sufficient ground for invalidating the election without any further
requirement of proof or material effect of such rejection on the result of
the election. The first one comes under Section 100(1)(d), the second one
comes under Section 100(1)(c).

34. Relying on the said decision, it is contended by the learned counsel
for the appellant that whether the proof of material effect on the result
of the election is required when there is illegal acceptance of a
nomination paper. In this context, placing reliance on the decision of
Santosh Yadav (supra), he would contend that there is a necessity for proof
by affirmative evidence that the result would have been different in all
probability and the question being one of a fact, has to be proved by
positive evidence.

35. At this stage, we are required to come back to Section 37 of the Act.
It is imperative to note here that sub-Section (3) of Section 37 was
substituted by Act 40 of 1981. The said provision requires the
satisfaction of the returning officer as to the genuineness of the notice
of withdrawal and the identity of the person delivering it. The words have
their own significance. The language employed in Section 37, as submitted
by Mr. Sundaram, learned senior counsel for the respondent, cannot be
diluted. Learned senior counsel would submit that if there is no election,
the question of materially affecting the election does not arise. It is
urged by him that in such a situation, especially in this case, when there
are two candidates one from INC who is an elected candidate by default and
other from another national party, i.e., BJP, the issue of withdrawal
becomes extremely significant.

36. In Rattan Anmol Singh Ram Prakash v. Ch. Atma Ram and others[35],
while dealing with the satisfaction of the returning officer, the Court
held:

“…when the law requires the satisfaction of a particular officer at a
particular time his satisfaction can be dispensed with
altogether. In our opinion, this provision is as necessary and as
substantial as attestation in the cases of a will or a mortgage and is on
the same footing as the “subscribing” required in the case of the
candidate himself. If there is no signature and no mark the form would
have to be rejected and their absence could not be dismissed as technical
and unsubstantial. The “satisfaction” of the Returning Officer
which the rules require is not, in our opinion, any the less important and
imperative.”

37. In this regard, the decision of the Constitution Bench in Surendra
Nath Khosla v. S. Dalip Singh
[36], is of immense significance. In the said
case, the returning officer accepted all the nomination papers except that
of one Buta Singh who did not take any further steps though his nomination
was rejected. One Dalip Singh, the first respondent filed an election
petition. The question was referred to the Constitution Bench to determine
whether the burden of proof is on the person who seeks to challenge the
election and that he must prove that the result of the election has been
materially affected by the improper rejection of the nomination paper.
Thereafter, the larger Bench, after referring to earlier decisions held
that:

“A Division Bench of this Court has laid down in the case of Chatturbhuj
Vithaldas Jasani v. Moreshwar Parashram
[37] at p. 842 that the
improper rejection of a nomination paper “affects the whole election”. A
similar view was taken in the case of Karnail Singh v. Election Tribunal,
Hissar[38], by a Bench of five Judges of this Court. But, as pointed out on
behalf of the appellants, in neither of those two cases the relevant
provisions of the Act have been discussed. It appears that though the words
of the section are in general terms with equal application to the case of
improper acceptance, as also of improper rejection of a nomination paper,
case law has made a distinction between the two classes of cases. So far as
the latter class of cases is concerned, it may be pointed out that almost
all the Election Tribunals in the country have consistently taken the view
that there is a presumption in the case of improper rejection of a
nomination paper that it has materially affected the result of the
election. Apart from the practical difficulty, almost the impossibility, of
demonstrating that the electors would have cast their votes in a particular
way, that is to say, that a substantial number of them would have cast
their votes in favour of the rejected candidate, the fact that one of
several candidates for an election had been kept out of the arena is by
itself a very material consideration. Cases can easily be imagined where
the most desirable candidates from the point of view of electors and the
most formidable candidate from the point of view of the other candidates
may have been wrongly kept out from seeking election. By keeping out such a
desirable candidate, the officer rejecting the nomination paper may have
prevented the electors from voting for the best candidate available. On the
other hand, in the case of an improper acceptance of a nomination paper,
proof may easily be forthcoming to demonstrate that the coming into the
arena of an additional candidate has not had any effect on the election of
the best candidate in the field. The conjecture therefore is permissible
that the legislature realising the difference between the
two classes of cases has given legislative sanction to the view by amending
Section 100 by the Representation of the People (Second Amendment) Act, 27
of 1956, and by going to the length of providing that an improper rejection
of any nomination paper is conclusive proof of the election being void.

For the reasons aforesaid, in our opinion, the majority decision
on the fourth issue is also correct.”
[emphasis supplied]

38. In this regard, learned counsel for the respondent has drawn our
attention to the Constitution Bench decision in Vishwanatha Reddy v.
Konappa Rudrappa Nadgouda
[39]. In the said case, there were only two
contesting candidates and one of them was under a statutory
disqualification. The Court held that Section 53 of the Act renders the
poll necessary if there are more candidates contesting the election than
the number of seats contested. The Court distinguished the rule
enunciated by the courts in the United Kingdom and stated that same cannot
be extended to the trial of disputes under our election law, for it is not
consistent with our Indian Statute Law and in any case the conditions
prevailing in our country do not justify the application of the rule.
Analysing further, where there are only two contesting candidates and one
suffers a statutory disqualification, the Court held:

“.. When there are only two contesting candidates, and one of them is under
a statutory disqualification, votes cast in favour of the disqualified
candidate may be regarded as thrown away, irrespective of whether the
voters who voted for him were aware of the disqualification. This is not to
say that where there are more than two candidates in the field for a single
seat, and one alone is disqualified, on proof of disqualification all the
votes cast in his favour will be discarded and the candidate securing the
next highest number of votes will be declared elected. In such a case,
question of notice to the voters may assume significance, for the voters
may not, if aware of the disqualification have voted for the disqualified
candidate.

And again:

“13. The view that we are taking is consistent with the implication of Cl.

(b) of Section 101. When in an election petition which complies with
Section 84 of the Act it is found at the hearing that some votes were
obtained by the returned candidate by corrupt practices, the Court is bound
to declare the petitioner or another candidate elected if, but for the
votes obtained by the returned candidate by corrupt practice, such
candidate would have obtained a majority of votes. In case falling under
Clause (b) of Section 101 the Act requires merely proof of corrupt
practice, and obtaining votes by corrupt practice: it does not require
proof that the voters whose votes are secured by corrupt practice had
notice of the corrupt practice. If for the application of the rule
contained in Clause (b) notice to the voters is not a condition precedent,
we see no reason why it should be insisted upon in all cases under Clause

(a). The votes obtained by corrupt practice by the returned candidate,
proved to be guilty of corrupt practice, are expressly excluded in the
computation of total votes for ascertaining whether a majority of votes had
been obtained by the defeated candidate and no fresh poll is necessary. The
same rule should, in our judgment, apply when at an election there are only
two candidates and the returned candidate is found to be under a statutory
disqualification existing at the date of filling of the nomination paper.”
[emphasis added]

39. The Constitution Bench in Surendra Nath Khosla (supra) has opined
that there is a clear distinction between rejection of nomination papers
and acceptance of nomination papers. It has stated about the path to
follow. In Vishwanatha Reddy (supra), the Court has categorically laid
down the distinct principle where there are two candidates in the fray.

40. It is unmistakably noticeable from the above enunciation of law that
this Court has carved out a separate and distinct principle. Be it noted,
it has been clearly held that when there is disqualification existing at
the date of filing of nomination paper, and it has been found to be
correct, no fresh poll is necessary.

41. The present case has its own distinct characteristics. There were
only two candidates in the fray, one from the Indian National Congress and
the other from the Bhartiya Janata Party. The election petitioner while
campaigning came to know that his nomination papers were withdrawn. As a
prudent man he lodged an FIR. We are really not concerned with the
initiation of criminal action. We are singularly concerned with the
interpretation of Section 37 of the Act and the illegal acceptance of
withdrawal of a candidature by the returning officer. As the provision
would reflect, the legislature has provided number of safeguards before
exercising the authority for acceptance of withdrawal of a candidate. The
language employed in Section 37 of the Act is absolutely plain, unambiguous
and unequivocal. It only admits of a singular interpretation. It is
because the intention of the Parliament is that due care and caution has to
be taken in letter and spirit so that no confusion is created. The issue of
alert and careful exercise gains more significance when there are two
candidates and that too from two National Parties. From this, it may not
be understood, there will be any difference if there are two candidates,
one from a National Party and the other from a regional party. The emphasis
is on “two candidates” because if one’s withdrawal is allowed in complete
violation of the statutory provision, the other candidate gets
automatically declared elected, for there is no election, no contest.

42. When there is no contest, and a desirable candidate for some reason
is kept out of fray, the principle laid down in Vishwanatha Reddy (supra)
has to be made applicable. We are disposed to think so, when in
transgression of the statutory provision, a candidate’s candidature is
allowed to be withdrawn, it will tantamount to sacrilege of democracy.
That is why, the mandate of Section 37 of the Act has been so carefully
worded. The legislature has taken pains to provide safeguards since
illegal acceptance of withdrawal has the potentiality to destroy the base
of democracy and corrode its primary roots. The principle stated in
Krishnamoorthy v. Sivakumar[40], are to the effect that the sanctity of the
electoral process imperatively commands that each candidate owes and is
under an obligation that a fair election is held and freedom in the
exercise of the judgment which engulfs a voter’s right, a free choice, in
selecting the candidate whom he believes to be best fitted to represent the
constituency, has to be given due weightage, are never to be eroded. The
responsibility of a returning officer being statutorily significant, he has
to keep himself alive to every facet and not act in a manner that will
create a dent or hollowness in the election process.

43. In view of the aforesaid, there is no merit in this appeal and the
same stands dismissed. There shall be no order as to costs.

…………………………..J.

[Dipak Misra]

……………………….…J.

[A.M. Khanwilkar]

New Delhi
May 09, 2017

———————–

[1] (1973) 2 SCC 45
[2] (1979) 2 SCC 158
[3] (1980) 1 SCC 704
[4] (1994) Supp (2) SCC 619
[5] (2007) 3 SCC 617
[6] (2009) 10 SCC 541
[7] (2012) 4 SCC 194
[8] (2012) 5 SCC 370
[9] AIR 1959 (MP) 109
[10] AIR 1954 SC 210
[11] AIR 1994 (PH) 258
[12] (2012) 3 SCC 314
[13] (1964) 6 SCR 54
[14] AIR 1964 SC 207
[15] (1969) 1 SCC 636
[16] (1969) 3 SCC 238
[17] (1973) 4 SCC 46
[18] (1977) 2 SCC 210
[19] (1999) 8 SCC 198
[20] (1999) 9 SCC 386
[21] (2011) 9 SCC 1
[22] (2003) 5 SCC 650
[23] (2014) 105 ALR 140
[24] AIR 1936 PC 253
[25] (2003) 4 SCC 399
[26] (2002) 5 SCC 294
[27] AIR 1964 SC 1200
[28] (1999) 1 SCC 666
[29] (1999) 3 SCC 357
[30] (2002) 1 SCC 160
[31] AIR 1954 SC 513
[32] (1988) 2 SCC 12
[33] (2001) 3 SCC 290
[34] (2016) 10 SCC 715
[35] AIR 1954 SC 510
[36] AIR 1957 SC 242
[37] 1954 SCR 817
[38] 10 Elec. Law Reports 189
[39] AIR 1969 SC 604
[40] (2015) 3 SCC 467

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