1. Election petition challenging the validity of an unopposed election following the illegal acceptance of a candidate's withdrawal notice in violation of Section 37, Representation of the People Act, 1951. (Para 1 , 2 , 3 )
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2017 Supreme(SC) 458
SUPREME COURT OF INDIA
Dipak Misra, A.M. Khanwilkar, JJ.
Kameng Dolo - Appellant
Versus
Atum Welly - Respondent
Civil Appeal No. 2991 of 2017
Decided On : 09-05-2017
IMPORTANT POINT
When there are only two candidates in the election and candidature of one is rejected illegally, the election becomes void.
Headnote:(a) Representation of the People Act, 1951 – Section 37 and section 100(1)(d)(iv) – Withdrawal of candidature – Notice therefor – Not delivered by the candidate or by his proposer or his election agent – Instantly Section 37 not complied at all – Not enough by itself to declare an election void – It must be shown that such withdrawal materially affected the election. (Para 21, 22, 25, 27, 29)
(2012) 3 SCC 314; (2002) 1 SCC 160; (2001) 3 SCC 290 – Relied upon
(2002) 5 SCC 294; (2003) 4 SCC 399; (2016) 10 SCC 715 – Referred
(b) Representation of the People Act, 1951 – Section 37 – Satisfaction of returning officer as to the genuineness of the notice of withdrawal and the identity of the person delivering it – Only two candidates in election – Withdrawal notice of one candidate – Not delivered personally by the candidate nor his proposer nor his agent – Returning officer accepting the same – Resultantly, other candidate declared elected unopposed – High Court rightly allowing the election petition. (Para 42)
AIR 1957 SC 242; AIR 1969 SC 604; (2015) 3 SCC 467 – Relied upon
(1973) 2 SCC 45; (1979) 2 SCC 158; (1980) 1 SCC 704; (1994) Supp (2) SCC 619; (2007) 3 SCC 617; (2009) 10 SCC 541; (2012) 4 SCC 194; (2012) 5 SCC 370; AIR 1959 (MP) 109 AIR 1959 (MP) 109; AIR 1954 SC 210; AIR 1994 (P&H) 258; (1964) 6 SCR 54; AIR 1964 SC 207; (1969) 1 SCC 636; (1969) 3 SCC 238; (1973) 4 SCC 46; (1977) 2 SCC 210; (1999) 8 SCC 198; (1999) 9 SCC 386; (2011) 9 SCC 1; (2003) 5 SCC 650; (2014) 105 ALR 140; AIR 1936 PC 253; AIR 1954 SC 510 – Referred
Facts of the case:
The appellant and the respondent filed their respective nomination papers from the same constituency. No other candidate had filed nomination papers. Nomination papers of both the candidates were found to be in order.
Thereafter the respondent left Seppa for campaigning in the morning and he came back to Itanagar the next day where he remained from 26.03.2014 to 30.03.2014. In the evening of 26.03.2014, the respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the respondent from the constituency and consequential election of the appellant from the said constituency unopposed.
Thereafter, the respondent lodged complaint with the Seppa Police Station which was registered as FIR No. 19/2014 under Sections 468 and 469 IPC.
The respondent filed Election Petition before the High Court challenging the legality and validity of the appellant’s election.
High Court allowed the election petition.
Finding of the Court:
When there are only two candidates in the election and candidature of one is rejected illegally, the election becomes void.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether non-compliance with statutory withdrawal procedures materially affected the election result under Section 100(1)(d)(iv) or if the election should be upheld through strict construction. (Para 4 , 6 , 7 , 9 )
3. The Returning Officer failed to ensure the withdrawal notice was delivered by the candidate, proposer, or authorized agent, violating the mandatory safeguards of Section 37. (Para 5 , 10 , 11 , 12 , 13 , 14 , 15 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 )
4. Illegal withdrawal of one of only two contesting candidates materially affects the election result, as it leads to an automatic unopposed election, violating democratic purity. (Para 41 , 42 )
5. Appeal dismissed and the election of the returned candidate declared void. (Para 43 )
6. Who is authorized to deliver a notice of withdrawal of candidature under the Representation of the People Act, 1951?
Under Section 37(1), a notice of withdrawal must be delivered to the Returning Officer either by the candidate in person, by the candidate's proposer, or by an election agent who has been authorized in writing by the candidate. (Para 18 , 19 , 20 , 22 )
7. What is the statutory duty of the Returning Officer upon receiving a withdrawal notice?
Pursuant to Section 37(3), the Returning Officer must satisfy himself as to the genuineness of the notice of withdrawal and the identity of the person delivering it before causing the notice to be affixed in a conspicuous place in his office. (Para 18 , 20 , 36 )
8. When does non-compliance with statutory provisions materially affect an election result under Section 100(1)(d)(iv)?
While generally requiring proof that the result would have changed, in cases where only two candidates are in the fray, the illegal withdrawal of one candidate materially affects the result as the other is automatically elected unopposed. (Para 14 , 41 , 42 )
9. How does the law distinguish between improper rejection and improper acceptance of nomination papers?
Improper rejection of a nomination is considered conclusive proof that the election is void. Conversely, improper acceptance requires proof that the result of the election was materially affected by such acceptance. (Para 33 , 37 )
JUDGMENT :
Dipak Misra, J.
The instant appeal has been preferred under Section 116A of the Representation of the People Act, 1951 (for brevity, “the Act”) assailing against judgment and order dated 08.02.2017 whereby the High Court of Gauhati had allowed the Election Petition 2 of 2014 filed by the respondent herein, and declared the election of the appellant herein, from No.12 Pakke-Kessang (ST) Legislative Assembly Constituency (hereinafter referred to as ‘constituency’), as void under Section 100(1)(d)(iv) of the Act.
2. The facts necessary for adjudication of the present appeal are that the appellant and the respondent filed their respective nomination papers from the earlier mentioned constituency. No other candidate had filed nomination papers in respect of the said constituency. Respondent’s younger brother, Sri Utung Welly was the election agent of the respondent, who was also a registered voter of the constituency. Nomination papers of both the candidates were taken up for scrutiny on 24.03.2014 in the office of the Returning Officer at Seppa where wife and election agent of the respondent were present; and the nomination papers of both the candidates were found to be in order. It is stated that the respondent left Seppa for campaigning in the morning on 25.03.2014 at Rilloh village and on 26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to 30.03.2014. In the evening of 26.03.2014, the respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the respondent from the constituency and consequential election of the appellant from the said constituency unopposed. Thereafter, the respondent lodged complaint with the Seppa Police Station which was registered as FIR No. 19/2014 under Sections 468 and 469 IPC.
3. As the factual score further depicts, the respondent filed Election Petition before the High Court challenging the legality and validity of the appellant’s election, specifically pleading that the provisions of Section 37 of the Act had not been complied with inasmuch as Form V, the prescribed format for withdrawal of candidature, had neither been delivered by the respondent nor his proposer nor his election agent. It was further pleaded that acceptance of respondent’s withdrawal had materially affected the election and prayed for declaration for setting aside the election.
4. The appellant filed his written statement contending, inter alia, that the respondent was himself instrumental in withdrawing the candidature; that Returning Officer had found respondent’s signature in the withdrawal Form to be genuine; that the person who had submitted the withdrawal from was well known to the respondent and this fact had been suppressed in the election petition; that to assuage his supporters after their violent reaction, respondent had filed the election petition; that plea of statutory violation alone would not be enough to set aside an election result; that the allegation by the respondent that his signature was forged is an afterthought; that the withdrawal of his nomination papers by the respondent from contesting the election from the said constituency was an act of his own accord and volition; and that the unopposed election of the appellant was as per due procedure of law; and that the election, being totally devoid of merit, deserved dismissal.
5. The High Court, after considering the pleadings, framed the following issues:-
“1. Whether the petitioner gave any notice in writing in terms of Section 37 (1) of the Act, read with Rule 9(1) of the Conduct of Election Rules, 1961 for withdrawal of his candidature from the constituency and delivered the same in a statutorily prescribed manner either personally or through his proposer or election agent so authorised in this behalf in writing by the petitioner?
2. Whether the person who submitted the withdraw
