Page 1

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 Pakke-Kessang (ST) Legislative

Assembly  Constituency  (hereinafter  referred  to  as

‘constituency’), as void under Section 100(1)(d)(iv) of the Act.

Page 2

2

2. The  facts  necessary  for  adjudication  of  the  present

appeal are that the appellant and the respondent filed their

respective  nomination  papers  from  the  earlier  mentioned

constituency.   No  other  candidate  had  filed  nomination

papers  in  respect  of  the  said  constituency.  Respondent’s

younger brother, Sri Utung Welly was the election agent of

the  respondent,  who  was  also  a  registered  voter  of  the

constituency.   Nomination  papers  of  both  the  candidates

were taken up for scrutiny on 24.03.2014 in the office of the

Returning Officer at Seppa where wife and election agent of

the respondent were present; and the nomination papers of

both the candidates were found to be in order.  It is stated

that  the  respondent  left  Seppa  for  campaigning  in  the

morning on 25.03.2014 at Rilloh village and on 26.03.2015

he  came  back  to  Itanagar  and  remained  there  from

26.03.2014 to 30.03.2014.  In the evening of 26.03.2014,

the  respondent  learnt  about  the  withdrawal  of  his

candidature  telephonically  through  his  supporters  and

relations and on the same day, the website of State Election

Commission  displayed  withdrawal  of  candidature  by  the

respondent  from  the  constituency  and  consequential

Page 3

3

election  of  the  appellant  from  the  said  constituency

unopposed.   Thereafter,  the  respondent  lodged  complaint

with the Seppa Police Station which was registered as FIR

No. 19/2014 under Sections 468 and 469 IPC.   

3. As  the  factual  score  further  depicts,  the  respondent

filed Election Petition before the High Court challenging the

legality and validity of the appellant’s election, specifically

pleading that the provisions of Section 37 of the Act had not

been complied with inasmuch as Form V,  the  prescribed

format  for  withdrawal  of  candidature,  had  neither  been

delivered  by  the  respondent  nor  his  proposer  nor  his

election agent.   It  was further pleaded that acceptance of

respondent’s withdrawal had materially affected the election

and prayed for declaration for setting aside the election.   

4. The appellant filed his written statement contending,

inter alia, that the respondent was himself instrumental in

withdrawing  the  candidature;  that  Returning  Officer  had

found respondent’s signature in the withdrawal Form to be

genuine; that the person who had submitted the withdrawal

from was well known to the respondent and this fact had

Page 4

4

been suppressed in the election petition; that to assuage his

supporters after their violent reaction, respondent had filed

the election petition; that plea of  statutory violation alone

would not be enough to set aside an election result; that the

allegation by the respondent that his signature was forged is

an  afterthought;  that  the  withdrawal  of  his  nomination

papers by the respondent from contesting the election from

the  said  constituency was an act  of  his  own accord and

volition; and that the unopposed election of the appellant

was  as  per  due  procedure  of  law;  and that  the  election,

being totally devoid of merit, deserved dismissal.  

5. The  High  Court,  after  considering  the  pleadings,

framed the following issues:-

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

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

Page 5

5

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

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

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

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

6. It  was  contended  before  the  High  Court  by  the

respondent  that  as  per  Sections  37(1)  and  37(3),  the

candidature  can  be  withdrawn  only  by  the  candidate

himself in person or by his proposer or by his election agent

authorized in this behalf in writing by the candidate; that

the  Returning  Officer  must  satisfy  himself  as  to  the

genuineness  of  the  notice  of  withdrawal  as  well  as  the

identity  of  the  person  who  delivered  the  notice  of  the

withdrawal and in the instant case there was clear violation

Page 6

6

of Section 37 of the Act which had materially affected the

outcome of the election inasmuch as when there were only

two  candidates;  and  that  evidence  on  record  clearly

suggested that neither the respondent nor his proposer nor

his election agent had submitted the notice of withdrawal

and as such the election of the appellant should be declared

as void under Section 100(1)(d)(iv) of the Act.   

7. Learned  counsel  for  the  appellant  herein  contended

before the High Court that election law has to be construed

strictly and interpretation must be adopted which upholds

the election of the returned candidate and there is no place

for equitable consideration in election law.  

8. After the issues were framed on behalf of the election

petitioner,  the  appellant  herein  examined  witnesses  in

favour of his stand and similarly the respondent, the elected

candidate, examined number of witnesses. The designated

election Judge took note of the rivalised submissions raised

at  the  Bar  and  noted  the  decisions  relied  upon  by  the

election petitioner in support of  the stand, that is,  Durai

Muthuswami v. N. Nachiappan and others1, State (Delhi

1 (1973) 2 SCC 45

Page 7

7

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

should be adopted which shall  uphold the election of the

return candidate and it should not allow any room for any

kind of stretched interpretation.  It was also urged by him

that strict constriction is required and not an equitable one.

The learned counsel for the elected candidate, referring to

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

Page 8

8

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  non-observe  any  constitutional  or  statutory

provision,  but  must  establish  that  such  breach  or

non-observance  had  materially  affected  the  result  of  the

returned candidate.  It  was put forth that  what  had been

averred is that, there had been violation of the Section 37 of

the Act but nothing has been stated that the said violation

in itself  materially  affected the  election result.   The High

Court  posed  the  question  that  the  real  test  is  whether

contravention  of  the  statutory  provision  alleged  to  have

changed  the  result  of  the  election  and  took  note  of  this

stance of  the candidate whose nomination paper was not

accepted and the stand set forth by the elected candidate

that the evidence brought on record was not conclusive and

the  authorities  cited  by  the  election  petitioner  were

12 (2012) 3 SCC 314

Page 9

9

absolutely  distinguishable.   The  elected  candidate  was

extremely critical of the non-examination of star witnesses

like Sri Sanjeev Tana and Dr. Byabang Rana by him which

had  created  doubts  about  the  veracity  of  the  statements

made by the election petitioner and urged that the petition

warranted  dismissal.  To  buttress  the  said  submission

reliance  was  placed  upon  Jagan  Nath  (supra), Jabar

Singh v. Genda 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

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.

13 (1964)  6 SCR 54 14 AIR 1964 SC 207 15 (1969) 1 SCC 636 16 (1969) 3 SCC 238 17 (1973) 4 SCC 46 18 (1977) 2 SCC 210 19 (1999) 8 SCC 198 20 (1999) 9 SCC 386 21 (2011) 9 SCC 1

Page 10

10

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 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

22 (2003) 5 SCC 650 23 (2014) 105 ALR 140

Page 11

11

candidature of the petitioner as it was signed by the  petitioner  in  his  presence.  Dr.  Rana  also informed him that the said Form No.5 was being sent  through one Sri  Sanjeev  Tana.  Thereafter, Sri Sanjeev Tana personally came to the office of PW4 at 01.30 pm on 26.03.2014 and handed over the duly filled up Form No.4 in original bearing signature  of  the  petitioner  along  with  his authority  letter.  He  admitted  that  Sri  Sanjeev Tana was neither the proposer nor election agent of the petitioner. However, he got the withdrawal notice affixed in the notice board of his office after 3.00 p.m. thereafter,  he declared respondent to be the elected candidate at around 06.00 p.m. of 26.03.2014.

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

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

Page 12

12

there.”

And again:

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

34.  Ext.9 is the authority letter dated 26.03.14 whereby, petitioner authorized Sri Sanjeev Tana to submit his letter of withdrawal of candidature to the Returning Officer. Ext. 9(2) is the signature of  the  petitioner.  Ext.10  is  the  notice  of withdrawal  of  candidature  n  Form  No.5  and signature of  petitioner  is  Ext.  10(1A).  Ext.11 is

Page 13

13

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

11. Thereafter, the High Court, analysing the framework of

Section 100 in the context of Section 37, held thus:

Page 14

14

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

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

Page 15

15

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

12. The  High  Court,  as  is  perceptible,  took  note  of  the

evidence of   PW-1, who in his evidence,  has categorically

stated that he had neither given any notice of withdrawal of

candidature  nor  did  he  authorise  anyone  including  his

proposer or agent to submit such application. PW-4 in his

evidence,  stated  that  he  received  a  call  from  PW-9

Page 16

16

requesting  him  to  accept  the  notice  of  withdrawal  of

candidature of the petitioner and DW-9 informed him that

notice  was being  sent  through Sri  Sanjeev  Tana and the

said person handed over the notice of withdrawal in Form 5

to PW-4 along with the authority letter. The  High  Court

took note of the fact that the authority letter in original was

not available and only a photocopy of the said is available

which had been proved as Ext. 9.  According to the evidence

of DW-9, he stated that he had filled up Form No. 5, i.e.,

notice of withdrawal in his own hand writing in the presence

of the petitioner and who signed the same in his presence

whereafter it was handed over to Sri Sanjeev Tana who was

present at the time of filing up of Form No. 5 and thereafter

Sri Sanjeev Tana went to the Returning Officer with Form

No. 5 along with the authority letter signed by the petitioner

whereafter those were handed over to the Returning Officer.

As  deposed by him, he had spoken to the Returning Officer

from his mobile phone and the election petitioner had also

sent  SMS  to  the  returning  officer  from  mobile  phone  of

DW-9.   

13. The High Court, as is evident, opined Sri Sanjeev Tana

Page 17

17

was neither the candidate himself nor the proposer nor the

election agent of the candidate and, therefore, he was not

authorized to  seek withdrawal  of  the  candidature.   As  is

seen,  the  High  Court  placed  reliance  on  Her  Highness

Maharani  Vijaya  Raje  Scindhia (supra)  wherein  it  has

been held that the violation of the statute must materially

affect the result of the election. Thereafter, the High Court

referred to the principles stated in Jagan Nath (supra) that

statutory  requirement  of  election  letter  must  be  strictly

observed and that an election contest is not an action at law

or  a  suit  in  equity  but  is  purely  a  statutory  proceeding

unknown to the common law. It opined that where a statute

provides  that  a  thing  should  be  done  in  a  particular

manner, it would be done in the manner prescribed and not

in any other way. Origin of this basic proposition of law is

traceable  to  the  English  decision  in  Taylor  v.  Taylor

followed by the Privy Council in Nazir Ahmed v. The King

Emperor24.   This  rule  has  since  been  applied  to  Indian

Courts  across  jurisprudences.  After  so  stating,  the  High

Court observed:-

24 AIR 1936 PC 253

Page 18

18

“46.  However,  it  is  to  be  noted  that  PW7,  the expert  witness,  who  had  prepared  the  forensic examination  report,  opined  that  the  two signatures attributed to the petitioner  were not his.  Though evidence of PW7 is in the form of an opinion,  yet  in  the  context  of  the  evidence adduced, it may be a pointer to possible foul play. However,  that  is  in  the  realm  of  criminal investigation and need not  detain the  Court  in this  proceeding  in  view  of  the  finding  reached that there was violation  of Section 37 of the Act. The  expression  ‘material  facts’  as  appearing  in section  83(1)(a)  of  the  Act  has  neither  been defined  in  the  Act  nor  in  the  Code  of  Civil Procedure.  Referring to the dictionary meaning, the  Supreme  Court  in  Birendra  Nath  Gautam (supra) held that ‘material’  means fundamental, vital,  basic,  cardinal,  central,  crucial,  decisive, essential,  pivotal,  indispensable,  elementary  or primary.  Thus  it  was  held  that  the  expression ‘material  facts’  would  mean  those  facts  upon which the party relies for his claim or defence. What  particulars  are  ‘material  facts’  would depend upon the facts of each case and no rule of universal application can be laid down. However, it  is essential  that all  basic and ‘material  facts’ which must be proved at the trial by the party to establish existence of a cause of action or defence are  ‘material  facts’  and  must  be  stated  in  the pleading  by the  party.   This  position has been reiterated by the Supreme Court in Jitu Patnaik (supra).”  

14. And adverting to the materially affecting the election of

the constituency, the High Court held:-

“49. Since this has been the main argument of learned  counsel  for  the  respondent,  a  further elaboration  of  the  order  extracted  above  is necessary.  The  proposition  advanced  by  the

Page 19

19

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

50. It is true that it is a well settled proposition that election of a candidate who has won at an election should not be lightly interfered with. But at the same time, it has also to be borne in mind that  one  of  the  essentials  of  election  law is  to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In the instant case, as discussed above, there was

Page 20

20

no contest at all and there can be no manner of doubt that there was flagrant breach of section 37 of the Act leading to unopposed election of the respondent.”  

15. In view of  the  aforesaid  analysis,  it  opined  that  the

election  had  been  materially  affected  and  accordingly

declared the election result dated 15.03.2014 as void under

Section 100(1)(d)(iv) of the Act. Being of this view, it allowed

the election petition.  

16. At the commencement of the hearing, we have heard

Mr.  Soli  Sorabjee,  learned  senior  counsel  and  on  the

adjourned date, Mr. Preetesh Kapur, learned counsel for the

appellants addressed the Court.  We have heard Mr. C.A.

Sundaram and  Mr.  Subramonium Prasad,  learned  senior

counsel for the respondent.  

17. Before we delve into the legal position,  the statutory

provisions are to be kept in view.  Part V of the Act deals

with  the  conduct  of  elections.  Section  30  provides  for

appointment of date for nomination.  Section 31 stipulates

that  Returning  Officer  shall  give  notice  of  the  intended

election in such form and manner  as  may be  prescribed

inviting  nominations  of  candidates  for  such  election  and

Page 21

21

specifying the place at which the nomination papers are to

be  delivered.  Section  32  deals  with  the  nomination  of

candidates  for  election  and  Section  33  provides  for

presentation of  nomination paper  and requirements  for  a

valid nomination.  Section 33A postulates what information

the  candidates  shall  furnish  apart  from  any  information

which he is required to furnish under the Act or the Rules

framed hereunder.  Be it noted, Section 33A came into force

with effect from 24.8.2002.  It is also worthy to note here

that  Section  33B  was  inserted  stating  that  candidate  to

furnish information only made under the Act and the Rules

vide Amendment Act 72 of 2002 with effect from 2.5.2002,

but that has been struck down as unconstitutional by this

Court in  People’s Union for Civil Liberties v. Union of

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 nominations papers of the appellant and

the respondent were scrutinised and they were found to be

25  (2003) 4 SCC 399

Page 22

22

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 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 sub-section (1) shall be allowed to cancel the notice.  

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

19. On plain reading of  the said provision, it is clear as

crystal  that  a  candidate  is  entitled  to  withdraw  the

candidature by notice in writing and the said notice shall

contain such particulars as may be prescribed and the said

notice  shall  be  signed by  him and delivered  before  three

Page 23

23

O’clock in the afternoon on the date fixed under Clause (c)

of Section 30 to the Returning Officer.  Clause (c) of Section

30 reads as follows:-

“(c) the  last  date  for  the  withdrawal  of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday”

20. Thus, the candidate has to comply with the Clause (c)

of Section 30 and the notice has to be in writing, it shall

contain such particulars as may be prescribed and it shall

be  subscribed  to  him  and  delivered  as  stipulated  under

Clause (c) of Section 30 to the Returning Officer.  The said

notice, as sub-section (1) of Section 37 lays down, is to be

delivered to the Returning Officer either by the candidate in

person or by his proposer or election agent who has been

authorised in this behalf in writing by such candidate.  Be it

noted,  sub-section  (2)  of  Section  37  prescribes  that  no

person  who  has  given  a  notice  of  withdrawal  of  his

candidature under sub-section (1) shall be allowed to cancel

the notice.   That  reflects the sanctity of  withdrawal  by a

candidate.   Sub-section (3)  of  Section 37,  as is  manifest,

makes its obligatory on the part of the Returning Officer to

Page 24

24

be  satisfied  as  to  the  genuineness  of  the  notice  of

withdrawal  and  the  identity  of  the  person  delivering  it.

Thereafter, he shall cause the notice to be affixed in some

conspicuous place in his office.  

21. In the case at hand, from the evidence of the Returning

Officer, it is explicit that withdrawal of the candidature was

not made by the candidate or by his proposer or his election

agent.   The  evidence  of  the  Returning  Officer  reads  as

follows.

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

x x x x x x x x

“Since I know Sri Sanjeev Tana personally, I also know that during the relevant point of time i.e. 2014  Arunachal  Pradesh  Legislative  Assembly election, Sri Tana Sanjeev was neither a proposer nor the election agent of Sri Atum Welly for 12 Pakke  Kesang  (ST)  Legislative  Assembly

Page 25

25

Constituency.  Under the law, it is only either the candidate  personally,  the  proposer  or  election agent  duly  authorised  by  candidate  are competent  and  eligible  to  file  Form  No.  5  for withdrawal of nomination of a candidate.”

22. From the aforesaid evidence, it is quite luminous that

neither the candidate delivered the notice of withdrawal nor

his  proposer  nor  his  election  agent  and  there  was  no

authorisation for the same to the proposer or election agent.

To  elucidate,  if  the  candidate  gives  the  notice  himself

ascribing to it, there can be no confusion.  The only thing

that the Returning Officer has to see is to verify the identity

of  the  candidate  and genuineness  of  the  signature.   The

other two categories who can issue the notice has to satisfy

certain  conditions  precedent.  The  notice  has  to  be  in

writing, the proposer or the election agent must be in that

capacity and they must have been authorised in this behalf

in writing by such candidate.  In the present case, there has

been total non-compliance of Section 37 of the Act.  

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

Page 26

26

candidature  is  treated  to  be  non-compliant  with  the

statutory provisions, yet it is obligatory on the part of the

elected candidate to satisfy the court or the election tribunal

that  it  has  materially  affected  the  election.   The  said

argument  was carried forward by Mr.  Kapur on the next

date.  Emphasis has been laid on Section 100 of the Act.

Section 100 of the Act deals with the grounds for declaring

election to be void.  For apposite appreciation, the provision

is reproduced in entirety:

“100. Grounds for declaring election to be void.—

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

(a) that on the date of his election a returned 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—

Page 27

27

(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

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

(iv) by any non-compliance 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,

Page 28

28

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

24. It is submitted by the learned counsel for the appellant

that  Section  100(1)(d)  is  inextricably  connected  with  the

concept  and election being materially  affected and unless

that  is  proven  or  established,  an  election  cannot  be  set

aside.  In this regard, learned counsel for the appellant has

commended us to certain authorities and we shall refer to

the same.  

25. In  Mangani  Lal  Mandal  (supra),  this  Court  was

dealing with an appeal arising from the judgment passed by

the High Court of Patna where the election of the appellant

was set aside.   To set aside the election,  the High Court

heavily  placed reliance  upon two decisions of  this  Court,

namely,  Union of  India v.  Association for  Democratic

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 26  (2002) 5 SCC 294

Page 29

29

breached right to information of electors and on the election

to suffer consequence of such non-compliance and breach

and accordingly  set  aside  the  election.   This  Court,  after

reference to Section 100(d)(iv) came to hold as follows:-

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

Page 30

30

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 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

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

Page 31

31

required not only to plead and prove the ground but also to

establish the result of the election of the returned candidate

concerned has been materially affected.  In this context, it is

fruitful to refer to the law enunciated in Santosh Yadav v.

Narender  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

30  (2002) 1 SCC 160

Page 32

32

sentence of imprisonment.  The learned designated Election

Judge of the High Court refused to set aside the election of

the respondent as, in his opinion, the election petitioner had

failed in discharging the onus of proof that the result of the

election insofar as it concerns the respondent, the returned

candidate, had been materially affected.  This Court posed

the question whether the High Court was right in forming

the opinion that on established facts and circumstances of

the  case,  the  appellant  had  failed  in  proving  that  the

election  of  the  respondent  was  materially  affected  by

improper  acceptance  of  the  nomination papers  of  Naresh

Yadav.  Dealing with the same, the Court held:

“9. A few decisions were cited at the Bar and it will be useful to make a review thereof. In Vashist Narain  Sharma v.  Dev 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

31  AIR 1954 SC 513

Page 33

33

defeat  of  the  returned  candidate.  The  Court 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

Page 34

34

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 is one of fact and the onus of proving it lies upon the petitioner.

33  (2001) 3 SCC 290

Page 35

35

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

materials on record and concurred with the view of the High

Page 36

36

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 two-Judge Bench while dealing with the violation

under Section 100(1)(d) opined:-

34  (2016) 10 SCC 715

Page 37

37

“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

Court has drawn distinction between improper acceptance

of  a  nomination  for  such  improper  acceptance  of  the

Page 38

38

nomination has to materially affect the result of the election

and the case of improper rejection of a nomination which

itself  is  a  sufficient  ground  for  invalidating  the  election

without any further requirement of proof or material effect

of such rejection on the result of the election.  The first one

comes under Section 100(1)(d), the second one comes under

Section 100(1)(c).  

34. Relying  on the  said  decision,  it  is  contended by  the

learned counsel for the appellant that whether the proof of

material effect on the result of the election is required when

there is illegal acceptance of a nomination paper.  In this

context, placing reliance on the decision of Santosh Yadav

(supra), he would contend that there is a necessity for proof

by  affirmative  evidence  that  the  result  would  have  been

different in all probability and the question being one of a

fact, has to be proved by positive evidence.  

35. At this stage, we are required to come back to Section

37 of the Act.  It is imperative to note here that sub-Section

(3) of Section 37 was substituted by Act 40 of 1981.  The

said  provision  requires  the  satisfaction  of  the  returning

officer as to the genuineness of the notice of withdrawal and

Page 39

39

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 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

35  AIR 1954 SC 510

Page 40

40

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. 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

36  AIR 1957 SC 242 37  1954 SCR 817 38  10 Elec. Law Reports 189

Page 41

41

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 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

Page 42

42

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

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:

39  AIR 1969 SC 604

Page 43

43

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

And again:

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

Page 44

44

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

[emphasis added]

39. The  Constitution  Bench  in  Surendra  Nath  Khosla

(supra) has opined that there is a clear distinction between

rejection  of  nomination  papers  and  acceptance  of

nomination papers.  It has stated about the path to follow.

In Vishwanatha Reddy (supra), the Court has categorically

laid  down  the  distinct  principle  where  there  are  two

candidates in the fray.

40. It  is  unmistakably  noticeable  from  the  above

enunciation of law that this Court has carved out a separate

and distinct principle. Be it noted, it has been clearly held

that when there is disqualification existing at the date of

filing  of  nomination  paper,  and  it  has  been  found  to  be

correct, no fresh poll is necessary.

41. The present case has its own distinct characteristics.

There were only two candidates in the fray, one from the

Page 45

45

Indian National Congress and the other from the Bhartiya

Janata  Party.  The  election  petitioner  while  campaigning

came to know that his nomination papers were withdrawn.

As a prudent  man he lodged an FIR.   We are  really  not

concerned  with  the  initiation  of  criminal  action.  We  are

singularly concerned with the interpretation of Section 37 of

the  Act  and  the  illegal  acceptance  of  withdrawal  of  a

candidature by the returning officer. As the provision would

reflect, the legislature has provided number of  safeguards

before exercising the authority for acceptance of withdrawal

of a candidate.  The language employed in Section 37 of the

Act is absolutely plain, unambiguous and unequivocal.  It

only admits of a singular interpretation. It is because the

intention of the Parliament is that due care and caution has

to  be  taken  in  letter  and  spirit  so  that  no  confusion  is

created. The issue of alert and careful exercise gains more

significance  when  there  are  two  candidates  and  that  too

from  two  National  Parties.   From  this,  it  may  not  be

understood,  there  will  be  any  difference  if  there  are  two

candidates, one from a National Party and the other from a

regional party. The emphasis is on “two candidates” because

Page 46

46

if  one’s withdrawal is allowed in complete violation of the

statutory provision, the other candidate gets automatically

declared elected, for there is no election, no contest.

42. When there is no contest, and a desirable candidate for

some reason is kept out of fray, the principle laid down in

Vishwanatha Reddy  (supra)  has  to  be  made  applicable.

We are disposed to think so, when in transgression of the

statutory provision, a candidate’s candidature is allowed to

be withdrawn, it will tantamount to sacrilege of democracy.

That is why, the mandate of Section 37 of the Act has been

so  carefully  worded.   The  legislature  has  taken  pains  to

provide  safeguards  since  illegal  acceptance  of  withdrawal

has the potentiality to destroy the base of democracy and

corrode  its  primary  roots.  The  principle  stated  in

Krishnamoorthy v. 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

40  (2015) 3 SCC 467

Page 47

47

represent the constituency, has to be given due weightage,

are never to be eroded.  The responsibility of  a returning

officer being statutorily significant, he has to keep himself

alive to every facet and not act in a manner that will create

a dent or hollowness in the election process.

43. In view of the aforesaid, there is no merit in this appeal

and the same stands dismissed.  There shall be no order as

to costs.   

…………………………..J. [Dipak Misra]

……………………….…J. [A.M. Khanwilkar]

 New Delhi May 09, 2017