IMPORTANT POINT
When there are only two candidates in the election and candidature of one is rejected illegally, the election becomes void.

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 withdrawal o