2004 Supreme(SC) 92

2004(1) Supreme 1012
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
V.N. Khare, CJI., S.B. Sinha and G.P. Mathur, JJ.
Ram Phal Kundu -Appellant
versus
Kamal Sharma -Respondent
Civil Appeal No. 4262 of 2003
Decided on 23-1-2004
Counsel for the Parties :
For the Appellant : C.S. Vaidyanathan, Sr. Advocate, Ajay Siwach, S.K. Sabharwal, Advocates.
For the Respondent : R.L. Batta, Sr. Advocate, M.L. Saggar, O.P. Sharda, Ms. Kamini Sharma, Dr. Ramesh K. Haritesh, Jasbir Singh Malik, Som Vir Deshwal, Anil Sharma, Ms. Lalita Kaushik, Advocates.

IMPORTANT POINT
Public interest demands that there should be no vagueness or uncertainty regarding the candidature of a person seeking to contest the election as a candidate of a recognized political party, therefore, this exercise should be done strictly in accordance with paras 13 and 13A of the Symbols Order and extrinsic evidence given in derogation thereof cannot be looked into.

Headnote:Representation of the People Act, 1951-Sections 80, 81 r/ws 100 and 116A-Election Symbols (Reservation and Allotment) Order, 1968-Paras 13 and 13A as amended by Clause 3 of Election Symbols (Reservation and Allotment) (Amendment) Order, 1999-Election petition on ground of wrongly rejecting nomination of petitioner-Appellant, returned candidate filed his nomination as a candidate of Indian National Lok Dal Party-Respondent and one B , both filed their nomination papers claiming to be candidates of Indian National Congress Party-Returning Officer accepted nomination of B and rejected that of respondent-Election was held and appellant secured the highest votes and declared to have been elected-Respondent filed an election petition for setting aside election of appellant-Prayer made that Election Commission be directed to hold a fresh election-High Court allowed election petition setting aside election of appellant-Appeal- B was not made a party to election petition-Which of the two persons, namely, B or respondent had been set up by Congress Party-Whether evidence, which is all subsequent to the last date of filing of nomination paper, can be looked into in order to ascertain as to who has been set up as a candidate-(No).

       Held : It may be mentioned at the very outset that the election petitioner Kamal Sharma impleaded the returned candidate Ram Phal Kundu as the sole respondent and no other person was joined as party to the election petition. Though there is not even a whisper against the appellant Ram Phal Kundu and the entire allegations are against Bachan Singh but he was not arrayed as a party to the election petition. Strictly speaking it is not a case of rejection of nomination paper but of ascertaining who was the candidate of Congress Party as two persons had filed nomination papers claiming to be the candidate of the said party. Since only one person can be a candidate of a political party and after acceptance of the candidature of Bachan Singh, the nomination paper of the election petitioner Kamal Sharma could be treated as that of an independent candidate. But as it was not subscribed by 10 proposers being electors of the Constituency, it had to be rejected in view of First Proviso to Sub-section (1) of Section 33 of the Act. The non-joining of Bachan Singh may not result in dismissal of the election petition in terms of Section 82 of the Act. However in absence of Bachan Singh having been joined as party to the election petition, an extremely difficult burden has been placed upon the appellant Ram Phal Kundu, who belongs to rival party (Lok Dal), to lead evidence regarding the internal affairs of Congress Party and to show that the nomination made in favour of Kamal Sharma had been subsequently rescinded and the party had set up Bachan Singh as its official candidate. (Para 6)

       Paras 13 and 13A of the Symbols Order lay down the mechanism for ascertaining when a candidate shall be deemed to be set up by a political party and also the procedure for substitution of a candidate. The opening part of para 13 says in unequivocal terms that for the purpose of an election for any Parliamentary or Assembly Constituency a candidate shall be deemed to be set up by a political party if and only if the conditions mentioned in sub-paragraphs (a) to (e) are satisfied. Para 13A lays down the procedure for substitution of a candidate and also the requirements of a revised notice in Form B. The second proviso to this paragraph takes care of a situation where more than one notice in Form B is received by the Returning Officer and the political party fails to indicate in such notices in Form B that the earlier notice or notices have been rescinded. Thus, paras 13 and 13A are exhaustive and lay down the complete procedure for determining whether a candidate has been set up by a political party. (Para 12)

       If instead of deciding the matter in accordance with paras 13 and 13A of the Symbols Order, it is decided on the basis of extrinsic evidence (oral or documentary) given subsequent to the last date of filing of nomination paper, it is capable of good deal of misuse. Governments are sometimes formed with razor thin majority or with the support of a small splinter group or of independent candidates. A political party may adopt a device of filing nomination papers of two candidates. If the candidate of the party wins well and good, but if the candidate loses, the other candidate whose nomination paper would have been rejected may file an election petition, lead extrinsic evidence to show that he was the real candidate of the party and thereby get the election of the returned candidate set aside. An election is not just a contest between two persons. The whole constituency is involved in the election process which has to send its representative to the Assembly or Parliament. The entire governmental machinery has to work for smooth holding of the election and huge expenditure is incurred from the public exchequer. The date of polling is declared a public holiday when all government offices, commercial establishments and institutions are closed, resulting in loss of productivity. Public interest demands that there should be no vagueness or uncertainty regarding the candidature of a person seeking to contest the election as a candidate of a recognised political party. Therefore, this exercise should be done strictly in accordance with paras 13 and 13A of the Symbols Order and extrinsic evidence given in derogation thereof cannot be looked into. (Paras 14 and 15)

       In view of our finding that Form B submitted by Bachan Singh was perfectly valid and as the same was submitted in the last at 2.50 p.m. on 3.2.2000 and it contained a clear recital that notice in Form B given earlier in favour Kamal Sharma is rescinded, he became the candidate of the Congress Party. The nomination paper of Kamal Sharma was, therefore, rightly rejected. The appeal consequently deserves to be allowed and the High Court judgment is liable to be set aside. However, as the learned counsel have made submissions on the merits of the case, we will also examine whether the election petitioner has been able to establish the case set up by him. (Para 20)

       The evidence adduced by the appellant Ram Phal Kundu shows that all the important Congress leaders like Shri Motilal Vora, Smt. Sheila Dixit, Shri Bhajan Lal and others campaigned for Bachan Singh. Thus, a candidate set up by the Congress Party contested the election for whom all the party workers and important leaders campaigned. The appellant secured 45,382 i.e. 55 of the total valid votes polled and thus won by an overwhelming majority. The appellant played absolutely no role of any kind in the rejection of nomination paper of Kamal Sharma on account of acceptance of Bachan Singh as a candidate of Congress Party. It was an inter se dispute between two persons, each claiming to be a candidate of the same party. (Para 27)