Reportable

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 Pakke­Kessang (ST) Legislative

Assembly Constituency (hereinafter referred to as

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‘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

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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

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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?

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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

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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

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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 others1, State (Delhi

Administration) v. Pali  Ram2,  Murari  Lal v.  State  of

Madhya Pradesh3, A. Neelalohithadasan Nadar v.

George Mascrene and others4, Virender Nath Gautam v.

Satpal Singh and others5, Ram Sukh v. Dinesh

Aggarwal6, Jitu Patnaik v. Sanatan Mohakud and

others7, 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  & others10, Santokh

Singh v. Mohan Singh11.

9. Learned counsel for the respondent, the elected

candidate argued before the High Court that interpretation

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 (P&H) 258

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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 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 Bhandari12. Additionally, it was urged by him

that it is essential that election petitioner should not only

breach or non­observe 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 12 (2012) 3 SCC 314

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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 non­examination 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 lal13,  South Indian Corporation (P) Ltd

v. Secretary, Board of Revenue, Trivandrum and

another14, Khaji Khanavar Khadirkhan v.

Siddavanballi Nijalingappa  & another15, Samant N.

Balkrishna v. George Fernandez and others16, Smt.

Bhagwan Karu v. Shri Maharaj Krishan Sharma and

13 (1964)  6 SCR 54 14 AIR 1964 SC 207 15 (1969) 1 SCC 636 16 (1969) 3 SCC 238

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others17, Magan Bihari Lal v. State of Punjab18,

Narender Singh v. Mala Ram and another19, Jeet

Mohinder Singh v. Harminder Singh Jassi20, K.T.

Plantation Pvt Ltd v. State of Karnataka21, T.A.

Ahammed Kabeer v. A.A. Azeez and others22, Ram Sukh

(supra), Mangani Lal Mandal (supra) and Rajpal Sarma

v. State of U.P23.

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

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

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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 cross­examination, 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

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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 evidence­in­ 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 cross­examination, 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 in­chief 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

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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. Cross­examination 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 non­hand written one which he explained in his evidence to

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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, sub­section(1) thereof relates to the candidate and sub­section (3) relates to the Returning Officer. As per sub­section (1), a candidate  may  withdraw  his candidature by a notice in writing in Form­5 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 sub­section (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.

39. Proceeding to sub­section(3), which deals

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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 sub­section(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 sub­section(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 paragraph­8 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 sub­sections (1) and (3) of Section 37, this is reiterated in  paragraphs  28 and 29. In paragraphs 30 and 31, Election

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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   PW­1, 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. PW­4 in his

evidence, stated that he received a call from PW­9

requesting him to accept the notice of withdrawal of

candidature of the petitioner and DW­9 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 PW­4 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 DW­9, he stated that he had filled up Form No. 5, i.e.,

notice of withdrawal in his own hand writing in the presence

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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

DW­9.   

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

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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

Emperor24.   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

24 AIR 1936 PC 253

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(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

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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.

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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

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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

India25.   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.   

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  candida­ ture by a notice in writing which shall  contain such particulars as may be prescribed and shall

25  (2003) 4 SCC 399

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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 ei­ ther by such candidate in person or by his pro­ poser, or election agent who has been authorised in this behalf in writing by such candidate.  

(2)  No person who has given a notice of with­ drawal of his candidature under sub­section (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 sub­section (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”

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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 sub­section (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, sub­section (2) of Section 37 prescribes that no

person who has given a notice of withdrawal of his

candidature under sub­section (1) shall be allowed to cancel

the notice.  That reflects  the sanctity  of  withdrawal  by a

candidate.  Sub­section  (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 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

25

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

26

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 non­compliance of Section 37 of the 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  non­compliance with the law.

Mr. Sorabjee argued that though withdrawal of the

candidature is treated to be non­compliant 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

27

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 sub­section (2) if the High Court is of opinion—

(a) that on the date of his election a returned can­ didate 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 re­ turned 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 materi­ ally affected—

(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

28

(iii) by the improper reception, refusal  or rejection of any vote or the reception of any vote which is void, or

(iv) by any non­compliance with the provi­ sions 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 re­ turned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied—

(a)that no such corrupt practice was com­ mitted 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 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 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

29

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

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 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 non­compliance and breach

and accordingly  set  aside the  election.  This  Court,  after 26  (2002) 5 SCC 294

30

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  non­compliance  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 elec­ tion insofar as it concerned the returned candi­ date has been materially affected by such breach or non­observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non­compliance 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  non­compliance  with the provi­ sions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the elec­ tion of the returned candidate could be declared void.

11. A mere non­compliance or breach of the Con­ stitution 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 non­observation or non­compliance with the provisions of the Constitution or the 1951 Act or the rules or the

31

orders made thereunder, by itself, does not ren­ der the election of a returned candidate void Sec­ tion 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 Lal27; (2)  L.R. Shivaramagowda  v.  T.M. Chandrashekar28; and (3) Uma Ballav Rath v. Maheshwar Mohanty29.”

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 that the result of the election of the returned

27  AIR 1964 SC 1200 28  (1999) 1 SCC 666 29  (1999) 3 SCC 357

32

candidate concerned has been materially affected.   In this

context, it is fruitful to refer to the law enunciated in

Santosh  Yadav v.  Narender  Singh30. 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 30  (2002) 1 SCC 160

33

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  Chandra31  the  candidate whose nomination was improperly accepted had secured 1983 votes while the margin of votes be­ tween 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

31  AIR 1954 SC 513

34

emphasized the need of proof by affirmative evi­ dence 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 nomi­ nation 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 Singh32  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

32  (1988) 2 SCC 12

35

discharged by the election petitioner adducing ev­ idence 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 specula­ tion and conjectures.”

28. Thereafter, the Court referred to  Tek Chand  v.  Dile

Ram33  wherein it has been held that:

“..the mere fact that the number of votes secured by a candidate whose nomination paper was im­ properly accepted, was greater (more than three times in that case) than the margin of the differ­ ence between the votes secured by the returned candidate  and the candidate  securing the  next higher number of votes, was not by itself conclu­ sive 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  re­ turned 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

33  (2001) 3 SCC 290

36

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 ad­ ducing positive, satisfactory and cogent evidence. If the  petitioner is  unable to  adduce  such  evi­ dence the burden is not discharged and the elec­ tion must stand. This rule may operate harshly upon the petitioner seeking to set aside the elec­ tion on the ground of improper acceptance of a nomination paper, but the court is not concerned with the inconvenience resulting from the opera­ tion of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of re­ quired proof.

4. The burden of proof placed on the election peti­ tioner 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 major­ ity 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 propor­ tion 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

37

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. There­ fore, it is difficult to subscribe to the suggested probability that any voter committed to INLD ide­ ology would have still voted for Shri Naresh Yadav merely because he had for a period of two years before defection remained associated with INLD.”

32. Learned  senior  counsel for the  appellant  has  drawn

our attention to the authority in  Rajendra Kumar

Meshram v. Vanshmani Prasad  Verma34.   In the said

case, the two­Judge Bench while dealing with the violation

34  (2016) 10 SCC 715

38

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 ac­ ceptance of a nomination if such improper accep­ tance 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. im­ proper rejection of a nomination which itself is a sufficient ground for invalidating the election without any further requirement of proof of mate­ rial 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 de­ termined 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 Sec­ tion 33(5) of the 1951 Act.

11. In other words, before setting aside the elec­ tion 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 notwith­ standing 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 nomina­ tion of the returned candidate was improper.”

33. As  we find from the aforesaid two paragraphs, the

39

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 sub­Section

40

(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 others35, 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

35  AIR 1954 SC 510

41

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 Singh36, 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.

36  AIR 1957 SC 242

42

Moreshwar  Parashram37  at  p.  842  that the im­ proper rejection  of a  nomination  paper “affects the whole election”. A similar view was taken in the case of  Karnail Singh  v.  Election Tribunal, Hissar38, 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  im­ proper acceptance, as also of improper rejection of a nomination paper, case law has made a dis­ tinction 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 Tri­ bunals 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 im­ possibility, 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 re­ jected candidate, the fact that one of several can­ didates 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 de­ sirable candidates from the point of view of elec­ tors 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 offi­ cer rejecting the nomination paper may have pre­ vented the electors from voting for the best candi­ date available. On the other hand, in the case of an improper acceptance of  a nomination paper, proof may easily be forthcoming to demonstrate

37  1954 SCR 817 38  10 Elec. Law Reports 189

43

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 ma­ jority 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 Nadgouda39.

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

39  AIR 1969 SC 604

44

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

45

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

46

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

47

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

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corrode its primary roots. The principle stated in

Krishnamoorthy v. Sivakumar40, 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]

40  (2015) 3 SCC 467

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 New Delhi May 09, 2017