Supreme Court of India
KAMENG DOLOversusATUMWELLY
- Citation
- 2017 INSC 461
- Decided
- 9 May 2017
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The Court held that the withdrawal was effected in total non‑compliance with Section 37, the illegal acceptance materially affected the result, and therefore the election was void.
Summary
Kameng Dolo was elected unopposed to the Arunachal Pradesh Legislative Assembly after the other candidate, Atum Welly, allegedly withdrew his candidature. The High Court held that the withdrawal notice did not comply with the requirements of Section 37 of the Representation of the People Act, 1951 and declared Dolo's election void under Section 100(1)(d)(iv). On appeal, the Supreme Court examined whether the notice was validly given, whether the Returning Officer satisfied the statutory conditions, and whether the illegal acceptance of the withdrawal materially affected the result. The Court found that the notice was neither signed by the candidate nor delivered by an authorized proposer or agent, and the Returning Officer failed to verify its genuineness. Because only two candidates were in the fray, the illegal withdrawal directly resulted in an unopposed election, satisfying the material‑effect requirement. Consequently, the election was declared void and the appeal was dismissed.
Issues considered
- Whether the withdrawal notice complied with the procedural requirements of Section 37 of the Representation of the People Act, 1951.
- Whether the person who submitted the withdrawal notice was authorized by the candidate.
- Whether the Returning Officer fulfilled the duty under Section 37(3) to be satisfied of the genuineness of the notice and the identity of the deliverer.
- Whether the illegal acceptance of the withdrawal materially affected the result of the election under Section 100(1)(d)(iv).
- Whether, in a contest with only two candidates, a breach of Section 37 alone suffices to render the election void.
- Who bears the burden of proving material effect of the statutory breach.
Legislation cited
- Conduct of Election Rules, 1961s. Rule 9(1)
- Representation of the People Act, 1951s. 100(1)(d)(iv), s. 30, s. 33, s. 37, s. 83
Subjects
withdrawal of candidatureelection petitionmaterial effectvoid electionreturning officerstatutory complianceRepresentation of the People Actelectoral law
Judgment
[2017] 5 S.C.R. 114
A KAMENG DOLO
v.
ATUMWELLY
(Civil Appeal No. 2991 of2017)
B MAY09,2017
[DIPAK MISRA AND A. M. KHANWILKAR, JJ.]
Representation of the People Act, 1951:
ss.37 and 100(1)(d)(iv) - Withdrawal of candidature -
Propriety of - Election petition challenging legality and validizv of
C election of the appellant to State Legis/(Jtive Assemb~v on the ground
of non-compliance of provisions of s.37 - High Court declared the
election as void - On appeal, held: In the present case there has
been total non-compliance of s.37 - Non- compliance of provisions
of s. 3 7 has materially affected the result of the election of the
D returned candidate as transgression of such statutory provision
tantamounts to sacrilege of democracy.
Dismissing the appeal, the Court
HELD: 1.1 On a plain reading of section 37 of
Representation of the People Act, 1951, it is clear that a candidate
E 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. The said notice, as sub-
section (1) of Section 37 lays down, is to be delivered to the
F 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. 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
G the notice. That reflects the sanctity of withdrawal by a candidate.
Sub-section (3) of Section 37 makes it 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. [Paras 19, 20) [131-E, H; 132-A-
H BJ
114
KAMENG DOLO v. ATUM WELLY 115
1.2 In the present case from the evidence of the Returning A
Officer, it is explicit that withdrawal of the candidature was not
made by the candidate or by his proposer or his election agent.
There was no authorisation for the same to the proposer or
election agent. There has been total non-compliance of Section
37 of the Act. [Paras 21, 22] [132-C, H; 133-B]
B
2.1 To sustain the ground as stipulated under Section
• lOO(l)(d)(iv), the election petitioner is required not only to plead
and prove the ground but also to establish that the result of the
election of the returned candidate concerned has been materially
affected. [Para 27] [136-C, DJ
c
2.2 As s.37 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 D
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. The emphasis is on
"two candidates" because if one's withdrawal is allowed in
complete violation of the statutory provision, the other candidate E
gets automatically declared elected, for there is no election, no
contest. (P<Jra 41] (145-B-E]
2.3 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 F
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 sanctity of the
electoral process imperatively commands that each candidate
owes and is under an obligation that a fair election is held and G
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 weightagc, arc never to be eroded. The responsibility of a
returning officer being statutorily significant, he has to keep H
116 SUPREME COURT REPORTS [2017) 5 S.C.R.
A himself alive to every facet and not act in a manner that will create
a dent or hollowness in the election process. [Para 42) [145-E-
H; 146-A]
Vishwanatha Reddy v. Konappa Rudrappa Nadgouda
AIR 1969. SC 604 : [1969) SCR 90 - followed.
B Krishnamoorthyv. Sivakumar (2015) 3 SCC 467 :
[2015) 4 SCR 987 - relied on.
Mangani Lal Manda/ v. Bishnu Deo Bhandari (2012) 3
SCC 314 : [2012) 1 SCR 527; Union of India v.
Association for Democratic Reforms (2002) 5 SCC 294 :
c [2002) 3 SCR 696; Peoples Union for Civil Liberties
v. Union of India (2003) 4 sec· 399 : [2003) 2 SCR
1136; Santosh Yadav v. Narender Singh (2002) 1 SCC
160: [2001) 4 Suppl. SCR 545; Tek Chand v. Dile Ram
(2001) 3 SCC 290: [2001) 1SCR527; Rajendra Kumar
D Meshram v. Vanshmani Prasad Verma (2016) 10 SCC
715; Rattan Anmol Singh & Ram Prakash v. Ch. Atma
Ram and others AIR 1954 SC 510 : (1955) SCR 481;
Surendra Nath Khosla v. S. Da/ip Singh AIR 1957 SC
242 : [1957) SCR 179; Durai Muthuswami v. N.
Nachiappan and others (1973) 2 SCC 45 : [1974) 1
E SCR 40; State (Delhi Administration) v. Pali Ram (1979)
2 SCC 158 : (1979) 1 SCR 931; Murari Lal v. State of
Madhya Pradesh (1980) 1 SCC 704 : [1980) 2
SCR 249; A. Nee/a/ohithadasan Nadar v. George
Mascrene and others 1994 Suppl. (2) SCC 619;
F Virender Nath Gautam v. Satpal Singh and others (2007)
3 SCC 617: (2006) 10 Suppl. SCR 413; Ram Sukh v.
Dinesh Aggarwal (2009) 10 SCC 541: [2009] 14 SCR
836; Jitu Patnaik v. Sanatan Mohakud and others
(2012) 4 SCC 194 : (2012) 2 SCR 258; Maria
Margarida Sequeira Fernandes and others v. Erasmo
G Jack De Sequeira (Dead) through LRs. (2012) 5 SCC
370: [2012] 3 SCR 841; Her Highness Maharani Vl}aya
Raje Scindhia AIR 1959 (MP) 109; Jagan Nath v.
Jaswant Singh & others AIR 1954 SC 210: (1954]
SCR 892; Santokh Singh v. Mohan Singh AIR 1994
H (P&H) 258; Jabar Singh v. Genda la/ [1964] 6 SCR
KAMENG DOLO v. ATUM WELLY 117
54; South Indian Corporation (P) Ltd v. Secretary, Board A
of Revenue, Trivandrum and another AIR 1964 SC
207: [1964] SCR 2SO; Khaji Khanavar Khadirkhan v.
Siddavanballi Nijalingappa & another (1969) 1 SCC
636 : [1969] 3 SCR 524; Samant N. Balkrishna v.
George Fernandez and others (1969) 3 SCC 23S:[1973]
B
2 SCR 702; Smt. Bhagwan Karu v. Shri Maharaj
Krishan Sharma and others (1973) 4 SCC 46 : [1977]
2 SCR 1007; Magan Bihari Lal v. State of Punjab
(1977) 2 SCC 210; Narender Singh v. Mala Ram and
another (1999) S SCC 19S : (1999] 2 Suppl. SCR 43S;
Jezt Mohinder Singh v. Harminder Singh Jassi (1999) c
9 SCC 3S6: [1999] 4 Suppl. SCR 33; K.T. Plantation
Pvt Ltd v. State of Karnataka (2011) 9 SCC 1 : [2011)
13 SCR 636; T.A. Ahammed Kabeer v. A.A. Azeez and
others (2003) 5 SCC 650: [2003] 3 SCR 511; Rajpal
Sarma v. State of U.P. (2014) 105 ALR 140 - referred
D
to.
Nazir Ahmed v. The King Emperor AIR 1936 PC 25.3 - .
referred to.
Case Law Reference
(1974] 1 SCR 40 referred to Paras E
(1979] 1 SCR 931 referred to Paras
[19SO] 2 SCR 249 referred to Paras
1994 Suppl. (2) sec 619 referred to Paras
[2006] 10 Suppl. SCR 413 referred to Paras
F
[2009] 14 SCR S36 referred to Para S
[2012] 2 SCR 25S referred to Paras
[2012] 3 SCR S41 referred to Paras
G
AIR 1959 (MP) 109 referred to Paras
[1954] SCR S92 referred to Para S
AIR 1994 (P&H) 25S referred to Para S
[2012] 1 SCR 527 referred to Para9
H
118 SUPREME COURT REPORTS [2017] 5 S.C.R.
A [1964] 6 SCR 54 referred to Para9
(1964) SCR 280 referred to Para 9
(1969) 3 SCR 524 referred to Para9
(1973) 2 SCR 702 referred to Para 9
B [1977) 2 SCR 1007 referred to Para9
(1977) 2 sec 210 referred to Para 9
[1999] 2 Suppl. SCR 438 referred to Para 9
[1999) 4 Suppl. SCR 33 referred to Para 9
c (2011) 13 SCR 636 referred to Para 9
(2003) 3 SCR SU referred to Para 9
(2014) lOS ALR 140 referred to Para 9
AIR 1936 PC 253 referred to Para 13
D
(2003) 2 SCR 1136 referred to Para 17
(2002] 3 SCR 696 referred to Para 25
(2001] 4 Suppl. SCR S4S referred to Para 27
[2001] 1 SCR 527 referred to Para 28
E
(2016) 10 sec 11s referred to Para 32
(19SS] SCR 481 referred to Para 36
(1957) SCRl 79 referred to Para 37
F [1969] SCR 90 followed Para 38
[2015] 4 SCR 987 relied on Para 40
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2991
of2017.
From the Judgment and Order dated 08.02.2017 of the High Court
G of Gauhati, Gauhati in Election Petition No. 2 of2014.
Preetesh Kapur, Shaunak Kashyap,A. Kash yap, Rahul Mukherjee
(for M/s. Mitter & Mitter Co.), Mis. Mitter & Mitter Co., Ad vs. for the
Appellant.
H
KAMENG DOLO v. ATUM WELLY 119
C. A. Sundaram, Subramonium Prasad, Sr. Advs, Abhay Kumar, A
Mrs. Ila Haldia, Abhishek Sanskritik, Himanshi Pal, Saurabh Mishra,
Ms. Rohini Musa, Abhishek Gupta, Ms. Aakanksha Kaur, Himanshu,
Advs. for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. The instant appeal has been preforred B
under Section l l 6A of the Representation of the People Act, 195 l (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
of2014 filed by the respondent herein, and declared the election of the
appellant herein, from No.12 Pakke-Kessang (ST) Legislative Assembly c
Constituency (hereinafter referred to as 'constituency'), as void under
Section' lOO(l)(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 D
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
ofboth the candidates were taken up for scrutiny on 24.03.2014 i!l 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 E
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 ~tanagar and remained there from
26.03.2014 to 30.03.2014. In the eve'hing of26.03.2014, the respondent
learnt about the withdrawal of his candidature telephonically through his F
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. G
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
H
120 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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.
B 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
C 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
D 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:-
E " 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
F 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 ncted in
G compliance of the requirements of Section 37(3) of the Act and
Rule 9 of the Conduct ofElection Rules, 1961 while accepting the
notice of withdrawal of petitioner's candidature from the
constituency?
4. Whetherthe Returning Officer of the constituency acted legally
H in declaring the result of election to Arunachal Pradesh State
K.AMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 121
Legislative Assembly from the constituency under Section 53(2) A
of the Conduct of Election Rules, 1961 and declaring respondent
duly elected uncontested from the said constituen~y?
5. Whether election of the respondent to the Arunachal Pradesh
St.ate Legislative Assembly from the constituency is liable to be
held void? B
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 C
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 D
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 IOO(l)(d)(iv) of the Act.
7. Learned counsel for the appellant herein contended before the E
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
F
similarly the respondent, the elected candidate, examined number of
witnesses. The designated election Judge t.Pok note of the rivalised
submissions raised at the Bar and noted the decisfons 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 Pradesh3, A. G
Nee/a/ohithadasan Nadar v. George Mascrene and others4, Vire11der
1
(1973) 2 sec 45
'(1979) 2 sec 158
'(I 980) 1 sec 104
'(1994) Supp (2) sec 619
H
122 SUPREME COURT REPORTS [2017] 5 S.C.R.
A Nath Gautam v. Satpal Singh and others3, Ram Sukh v. Dinesh
Aggarwa/6, Jitu Patnaik v. Sanatan Mohakud and others1, Maria
Margarida Sequeira Fernandes and others v. Erasmo Jack De
Sequeira (Dead) through LRs. 8, Her Highness Maharani Vijaya
Raje Scindhia9, Jagan Nath v. Jaswant Singh & others 10, Santokh
B 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 returned 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
c learned counsel for the elected candidate, referring to Section l 00 of the
Act, highlighted that in the absence of any pleading with regard to corrupt
pract;ces, the election of the elected candidate could not be unsettled.
He had drawn support from the authority in Mangani Lal Manda/ v.
Bishnu Deo Bhandari12 • Additionally, it was urged by him that it is
D 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
E 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
F ·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
G 'c2007J 3 sec 617
• (2009J 1osec 541
, (2012) 4 sec 194
• (2012) 5 sec 310
'AIR 1959 (MP) 109
•
10
AIR 1954 SC 210
II AIR 1994 (P&H) 258
H 12
(2012) 3 sec 314
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 123
warranted dismissal. To buttress the said submission reliance was placed A
upon Jagan Nath (supra), Jabar Singh v. Genda la/11, South Indian
Corporation (P) Ltd v. Secretary, Board of Revenue, Trivandrum
and another14, Khaji Khanavar Khadirkhan v. Siddavanballi
Nijalingappa & another 15, Samant N. Balkrishna v. George
Fernandez and others 16, Smt. Bhagwan Karu v. Shri Maharaj
B
Krishan Slwrma and others17, Magan Bihari Lal v. State ofPunjab 18,
Narendcr Singh v. Mala Ram and anotlter 19, Jeet Mo/tinder Singh
v. Harminder Singh Jassi20, K. T. Plantation Pvt Ltd v. State of
Karnataka 21, T.A. Ahammed Kabeer v. A.A. Azeez and others22, Ram
Suklt (supra), Mangani Lal Manda/ (supra) and Rajpal Sarma v.
State of U.P23 • c
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 D
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, E'
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 F
he received a notice for withdrawal of candidature in Form No. 5
from the petitioner through fax. He did not take cognizance of the
13
(1964) 6 SCR 54
14
AIR 1964 SC 207
1
' ( 1969) 1 sec 636 G
1
' (1969) 3 sec 238
11
(1973)4 sec 46
' (1977) 2 sec 210
1
' (1999) 8 sec 198
1
( 1999) 9 sec 386
20
21
(2011) 9 sec 1
21
(2003 J 5 sec 650
23
(2014) 105 ALR 140 H
124 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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
B
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.
c thereafter, he declared respondent to be the elected candidate at
around 06.00 p.m. of26.03.2014.
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
D 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.
E
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 exa!llination, he
F 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:
G
"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
H
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 125
petitioner was Minister of Health & Family Welfare, Government A
ofArunachal Pradesh. He stated that on 26.03.2014 morning when
he went to the residence of PWl, 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 writirig in
presence of the petitioner. Petitioner signed form No.5 in his
B
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 c
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 D
authorized Sri Sanjeev Tana to submit his letter of withdrawal of
candidature to the Returning Officer. Ext. 9(2) is the signatl!re of
the petitioner. Ext. l 0 is the notice of withdrawal of candidature n
Form No.5 and signature of petitioner is Ext. lO(lA). Ext.11 is
the receipt ofnotice of withdrawal issued by the Returning Officer.
Ext.15 is the list of documents which were found on opening of E
th~ 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 ndtice of withdrawal. At SI. No.5 corresponding F
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 G
wrote the enclosed signatures stamped and marked Sl to S4 and
A 1 to A 16 did not write the red enclosed signature similarly
stamped and marked Q2. Regarding ownership of signature
marked Q 1, no opinion was expressed because it was a copy and
also a non-hand written one which he explained in his evidence to H
126 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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
B
signatures coupled with signs ofimitation 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:
c "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
D 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
E 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.
39. Proceeding to sub-section(3), which deals with the Returning
F 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
G withdrawal as well as identity of the person delivering the notice
under sub-section(!), 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
H of the above two, notice is to .be affixed as above.
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 127
40. In the election petition, petitioner has pleaded in paragraph-8 A
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 B
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 I 0
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 C
27, petitioner has averred that withdrawal of his candidature and
acceptance of the same by the Returning Officer were in violation
of sub-sections (I) 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 D
candidature had materially affected the result of the Election and
therefore unopposed Election of the respondent has been rendered
void under section I OO(l)(d)(iv) of the Act."
12. The High Court, as is perceptible, took note of the evidence of
PW-I, who in his evidence, has categorically stated that he had neither
given any notice of withdrawal of candidature nor did he authorise anyone E
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 S to F
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 ofDW-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 G
was handed over to Sri Sanjeev Tana who was present at the time of
filing up of Form No. S and thereafter Sri Sanjeev Tana went to the
Returning Officer with Form No. S along with the authority letter signed
by the petitioner whereafter those were handed over to the Returning
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128 SUPREME COURT REPORTS [2017] 5 S.C.R.
A Offic'!r. 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
B 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
C 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 oflaw is traceable
D to the English decision in Taylor v. Taylor followed by the Privy Council
in Nazir Ahmed v. The King Emperor"-4 • 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
E 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
F that there was violation of Section 3 7 of the Act. The expression
'material facts' as appearing in section 83(l)(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,
G 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
H 24
AIR I 936 PC 253
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 129
rule of universal application can be laid down. However, it is A
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)."
B
14. And adverting to the materially affecting the election c;fthe
constituency, the High Court held:-
"49. Since this has been the main argument oflearned counsel for
the respondent, a further elaboration of the order extracted above
is necessary. The proposition advanced by the learned counsel c
for the respondent backed by a series ofjudicial 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 D
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 E
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 F
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. G
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
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130 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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."
B
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 IOO(!)(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
c 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
D 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
E 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 hereun.der. Be it noted, Section 33A came into
F 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 of2002
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.
2
G Union ofIndia s. 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 nomination papers of the appellant and
the respondent were scrutinised and they were found to be valid.
H "(2003) 4 sec 399
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 131
18. Section 37 of the Act is the provision that calls for interpretation A
in this case. The said Section reads as follows:-
"3 7. Withdrawal of candidature.-
( I) Any candidate may withdraw his candidature by a notice in
writing which shall contain such particulars as may be prescribed B
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.
c
(2) No person who has given a notice of withdrawal of his
candidature under sub-section (I) shall be allowed to cancel the
notice.
(3) The returning officer shall, on being satisfied as to the
genuineness ofa notice of withdrawal and the identity of the person D
delivering it under sub-section(!), 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 E
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
F
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 G
Officer. The said notice, as sub-section(!) 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
behalfin writing by such candidate. Be it noted, sub-section (2) of Section
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132 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 37 prescribes that no person who has given a notice of withdrawal of his
candidature under sub-section ( l) 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 it obligatory on the part of the
Returning Officer to be satisfied as to the genuineness of the notice of
B 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
c 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
D 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 a:ccept the
withdrawal ofnomination of Sri Atum Wdly, as according to Dr.
E Byabang Rana the said Form No. 5 was signed by Sri A tum Welly
in the presence of Dr. Byabang Rana."
xxxxxxxx
"Since I know Sri Sanjeev Tana personally, I also know that during
the relevant point of time i.e. 2014 Arunachal Pradesh Legislative
F 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
G 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, ifthe candidate gives the notice himself
H ascribing to it, there can be no confusion. The only thing that the Returning
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 133
Officer has to see is to verify the identity of the candidate and genuineness A
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
B
Act.
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 C
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 l 00 of the Act. Section
l 00 of the Act deals with the grounds for declaring election to be void.
For apposite appreciation, the provision is reproduced in entirety: D
"l 00. Grounds for declaring election to be void.-
(!) Subject to the provisions of sub-section (2) ifthe High Court is
of opinion-
(a) that on the date of his election a returned candidate was not E
qualified, or was disqualified, to be chosen to fill the seat under
the Constitution or this Act or the Government ofUnion Territories
Act, 1963 (20 of1963)]; or
(b) that any corrupt practice has been committed by a returned
F
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- G
. (i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate by an agent other than his election agent,
or
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134 SUPREME COURT REPORTS [2017) 5 S.C.R.
A (iii) by the improper reception, refusal or rejection ofany vote or
the reception of any vote which is void, or
(iv) 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
B 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-
c (a) 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;
(c) that the candidate and his election agent took all reasonable
D means for preventing the commission of corrupt practices at
the election; and
(d) 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
E candidate is not void."
24. It is submitted by the learned counsel for the appellant that
Section I 00( I)(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
F appeliant has commended us to certain authorities and we shall refer to
the same.
25. In Mangani Lal Manda/ (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
G election, the High Court heavily placed reliance upon two decisions of
this Court, namely, Unio11 of l11dia v. Association for Democratic
Reforms26 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
H 2
' c2002i s sec 294
KAMENG DOLO v.·ATUM WELLY [DIPAK MISRA, J.] 135
was breach ofArticle l 9(l)(a) and for such breach and non-compliance A
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 1OO(d)(iv) came to hold as follows:-
"! 0. Areading of the above provision with Section 83 of the 1951 B
Act leaves no manner of doubt that where a returned candidate is
alleged to be guilty of non-compliance with the provisions'ofthe
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
c
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 D
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.
E
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
lOO(l)(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 lOO(l)(d) is further proof of the fact that such breach or F
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 G
candidate void Section lOO(l)(d)(iv). For the election petitioner
to succeed on such ground viz. Section IOO(l)(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
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136 SUPREME COURT REPORTS [2017] 5 S.C.R.
A from the three decisions of this Court in: (1) Jabar Singh v. Genda
La/2 7; (2) L.R. Shivaramagowda v. TM Chandrashekar28 ; 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
B 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
c that to sustain the ground as stipulated under Section lOO(l)(d)(iv), the
election petitioner is required not only to plead and prove the ground but
also to establish that the result of the election of the returned candidate
concerned has been materially affected. In this context, it is frnitful 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
D respo!!dent 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
E there was a margin of334 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,
F 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
G 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
27 AIR 1964 SC 1200
" <1999) 1 sec 666
"< 1999) 3 sec 357
H Jo (2002J 1 sec 160
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 137
in proving that the election of the respondent was materially affected by A
improper acceptance of the nomination papers ofNaresh 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 B
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
c
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 D
have been different in all probability. The question is one of fact
and has to be proved by positive evidence. The Court obst--rved
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 E
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 F
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 G
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
"AIR 1954 SC 513
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138 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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 ofimproper
acceptance of nomination paper involved the harsh and difficult
B
burden ofproof 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
C 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
D (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."
E 29. Thereafter, the Court summed up the law as regards the result
of ele~tion 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 dirference
of votes secured by the returned candidate and the candidate
F 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 ofproving such material effect has to be discharged
G 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
"(1988) 2 sec 12
" c2001) 3 sec 290
H
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 139
the election on the ground of improper acceptance of a nomination A
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 B
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
mP-rely 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 C
by the legislature.
5. The casting of votes at an election depends upon a variet)' 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 D
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 1>ome
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 appe!Iant, E
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 ofShri Naresh Yadav.
31. To sustain the conclusion of the High Court, the Court analysed F
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 N aresh G
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."
H
140 SUPREME COURT REPORTS [20 l 7] 5 S.C.R.
A 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 l 00( I)(d) opined:-
" 10. Under Section lOO(l)(d), an election is liable to be declared
B 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 IOO(l)(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
c 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
D 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 catTied out a further exercise,
namely, to find out whether the improper acceptance of the
E nomination had materially affected the result of the electfon. 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
F 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 ofa nomination which
G itself is .a sufficient ground for invalidating the election without any further
requirement of proofor material effect of such rejection on the result of
the election. The first one comes under Section lOO(l)(d), the second
one comes under Section lOO(l)(c).
"(2016) 10 sec 11s
H
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 141
34. Relying on the said decision, it is contended by the learned A
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 B
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 c
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 ifthere is
no election, the question of materially affecting the election does not D
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 E
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 F
substantial as attestation in the cases of a will or a mortgage and
is on the same footing as the "subscribing" required in the c&se 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, G
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.
"AIR 1954 SC 510
"AIR 1957 SC 242 H
142 SUPREME COURT REPORTS [2017) 5 S.C.R.
A 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
B
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
C 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, Hissar3 8 , 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
D 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 betv:een 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
E 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
F 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 consicieration.
Cases can easily be imagined where the most desirable candidates
from the point of view of electors and the most formidable
G 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
37
1954SCR817
38
H I 0 Elec. Law Reports 189
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 143
candidate available. On the other hand, in the case of an improper A
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 B
cases has given legislative sanction to the view by amending Section
I 00 by the Representation of the People (Second Amendment)
Act, 27 of 1956, and by going to the length of providing that an
improper rejection ofany 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." C
[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
twci contesting candidates and one of them was under a statutory D
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
extendect to the trial of disputes under our election law, for it i3 not E
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 F
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 G
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
"AIR 1969 SC 604
H
144 SUPREME COURT REPORTS [2017] 5 S.C.R.
A 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
B 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
c 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
D see no reason why it should be insisted upon in all cases under
Clause (a). The votes obtained by corrupt practice by the :eturned
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
E
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
[emphasis added]
F 39. The Constitution Bench in Sure11dra 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 candidatts in the
G 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
H correct, no fresh poll is necessary.
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 145
4 I . The present case has its own distinct characteristics. There A
were only two candidates in the fray, one from the Indian National
Congres3 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 B
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 C
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 mor1
significance when there are two candidates and that too from twq
National Parties. From this, it may not be understood, there will be any D
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.
E
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 candidatl're 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 F
worded. The legislature has taken pains to provide safeguards since
illegal acceptance of withdrawal has the potentiality to destroy the base
of demoi::racy and corrode its primary roots. The principle stated in
Krishnamoorthy v. Sivakumart0 , 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 G
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.
"(201 s) 3 sec 467 H
146 SUPREME COURT REPORTS (2017] 5 S.C.R.
A 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.
B
Kalpana K. Tripathy Appeal Jismissod.
\
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