# JITU PATNAIK v. SANATAN MOHAKUD & ORS

- **Citation:** [2012] 2 S.C.R. 258
- **Court:** Supreme Court of India
- **Decided:** 2012-03-02
- **Case number:** Civil Appeal No. 2689 of 2012
- **Bench:** R.M. Lodha, H. L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jitu-patnaik-v-sanatan-mohakud-ors-28123
- **Pages:** 31

## Headnote

REPRESENTATION OF THE PEOPLE ACT, 1951:
c
s.52(as inserted by Amendment Act 21 of 1996) read with
ss.38, 83 and 100(1)(d) - State Legislative Assembly Elections
- Death of an independent contesting candidate after the date
of withdrawal of nomination and publication of list of contesting
candidates, but before the date of polling - Election petition
0 challenging the election of returned candidate - Held: s.52
enjoins that if a candidate set up by'recognized political party
dies before the poll, the poll must. be adjourned; it does not
provide any such obligation on the returning officer if a
candidate of a registered political party other than recognized
E political party or an independent candidate dies after the list
of the contesting candidates as defined in s. 38 is published
- The expression "contesting candidates" in paragraph 8.1,•
Chapter XII of the Handbook has to be given the same
meaning as the contesting candidates defined in s. 38 of the
Act - In this view of the matter, there was no duty imposed on
F the returning officer to mask the name of the independent
candidate who died after publication of list of validly
nominated candidates being a contesting candidate as
defined in s. 38 - Moreover, the instructions in the Handbook
are only guidelines - These instructions have no statutory force
G - There being no non-compliance with the provisions of the
Constitution or the 1951 Act or any rules framed or orders
made under 1951 Act by the returning officer insofar as death
of independent candidate was concerned, the averments
made in paragraph l(A) of the election petition do not furnish
H
258
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
259
any cause of action for declaring the election of the returned
A
candidate to be void uls 100(1)(d)(iv) - High Court seriously
erred in holding otherwise and ordering trial of the election
petition on the pleadings set out in paragraph 7(A).
s.83(1)(a) - Election petition to contain concise statement
8
of 'material facts' - Averment in para 7(0) of the election
petition alleging suppression of votes - Held: It is imperative
for an election petition to contain a concise statement of the
material facts on which the election petitioner relies - All basic
and primary facts which must be proved at the trial by a party
to establish the existence of cause of action or defence are
C
material facts - The bare a/legations are never treated as
material facts - The material facts are such facts which afford
a basis for the allegations made in the election petition -
Omission of even a single material fact leads to an incomplete
cause of action and statement of claim becomes bad - The
D
averments made in paragraph 7(0) do not set out all the
material facts and do not afford an adequate basis for the
a/legations made therein - The allegations in paragraph 7(0)
do not constitute cause of action for declaring election of the
returned candidate to be void -High Court has already struck
E
out paragraphs 7(8), 7(C), 7(E), 7(F) and 7(G) of the election
petition - The remaining two paragraphs 7(A) and 7(0) do not
disclose any cause of action and are liable to be struck out -
After striking out paragraphs 7(A) and 7(0), nothing remains
in the election petition for trial and, therefore, the election
F
petition is liable to be rejected in its entirety - Code of Civil
Procedure, 1908 - 0. 6, r. 2 - Conduct of Election Rules, 1961
- r.93.
An independent candidate whose candidature had
G
survived the scrutiny of nominations for the 14th
Assembly Election to Orissa State Legislative Assembly,
died on 13.4.2009, i.e. after the date of withdrawal of
nominations i.e. 8.4.2009, but before the date of polling
i.e. 23.4.2009. His name continued to appear in the list of
H
260
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A contesting candidates and was included in Electronic
Voting Machine (EVM). The polling was held on 23.4.2009
and the deceased got 550 votes. Respondent no. 1 lost
the election to the appellant. He filed an el

## Text

_Characters 0–39,864 of 58,748. This is a partial read: ask again with offset=39864 for what follows._

A
B
[2012] 2 S.C.R. 258
JITU PATNAIK
v.
SANATAN MOHAKUD & ORS.
(Civil Appeal No. 2689 of 2012)
MARCH 2, 2012
[R.M. LODHA AND H. L. GOKHALE, JJ.]
REPRESENTATION OF THE PEOPLE ACT, 1951:
c
s.52(as inserted by Amendment Act 21 of 1996) read with
ss.38, 83 and 100(1)(d) - State Legislative Assembly Elections
- Death of an independent contesting candidate after the date
of withdrawal of nomination and publication of list of contesting
candidates, but before the date of polling - Election petition
0 challenging the election of returned candidate - Held: s.52
enjoins that if a candidate set up by'recognized political party
dies before the poll, the poll must. be adjourned; it does not
provide any such obligation on the returning officer if a
candidate of a registered political party other than recognized
E political party or an independent candidate dies after the list
of the contesting candidates as defined in s. 38 is published
- The expression "contesting candidates" in paragraph 8.1,•
Chapter XII of the Handbook has to be given the same
meaning as the contesting candidates defined in s. 38 of the
Act - In this view of the matter, there was no duty imposed on
F the returning officer to mask the name of the independent
candidate who died after publication of list of validly
nominated candidates being a contesting candidate as
defined in s. 38 - Moreover, the instructions in the Handbook
are only guidelines - These instructions have no statutory force
G - There being no non-compliance with the provisions of the
Constitution or the 1951 Act or any rules framed or orders
made under 1951 Act by the returning officer insofar as death
of independent candidate was concerned, the averments
made in paragraph l(A) of the election petition do not furnish
H
258
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
259
any cause of action for declaring the election of the returned
A
candidate to be void uls 100(1)(d)(iv) - High Court seriously
erred in holding otherwise and ordering trial of the election
petition on the pleadings set out in paragraph 7(A).
s.83(1)(a) - Election petition to contain concise statement
8
of 'material facts' - Averment in para 7(0) of the election
petition alleging suppression of votes - Held: It is imperative
for an election petition to contain a concise statement of the
material facts on which the election petitioner relies - All basic
and primary facts which must be proved at the trial by a party
to establish the existence of cause of action or defence are
C
material facts - The bare a/legations are never treated as
material facts - The material facts are such facts which afford
a basis for the allegations made in the election petition -
Omission of even a single material fact leads to an incomplete
cause of action and statement of claim becomes bad - The
D
averments made in paragraph 7(0) do not set out all the
material facts and do not afford an adequate basis for the
a/legations made therein - The allegations in paragraph 7(0)
do not constitute cause of action for declaring election of the
returned candidate to be void -High Court has already struck
E
out paragraphs 7(8), 7(C), 7(E), 7(F) and 7(G) of the election
petition - The remaining two paragraphs 7(A) and 7(0) do not
disclose any cause of action and are liable to be struck out -
After striking out paragraphs 7(A) and 7(0), nothing remains
in the election petition for trial and, therefore, the election
F
petition is liable to be rejected in its entirety - Code of Civil
Procedure, 1908 - 0. 6, r. 2 - Conduct of Election Rules, 1961
- r.93.
An independent candidate whose candidature had
G
survived the scrutiny of nominations for the 14th
Assembly Election to Orissa State Legislative Assembly,
died on 13.4.2009, i.e. after the date of withdrawal of
nominations i.e. 8.4.2009, but before the date of polling
i.e. 23.4.2009. His name continued to appear in the list of
H
260
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A contesting candidates and was included in Electronic
Voting Machine (EVM). The polling was held on 23.4.2009
and the deceased got 550 votes. Respondent no. 1 lost
the election to the appellant. He filed an election petition
challenging the election of the appellant. The appellant
B filed, an application with a prayer to strike out the
pleadings made in paragraphs 7(A) to 7(G) of the election
petition. The High Court struck out paragraphs 7(8), 7(C)
and 7(E) to 7(G) and permitted trial of the election petition
on the pleadings set out in paragraphs 7(A) and 7(0). The
c returned candidate filed the appeal contending that
paragraphs 7(A) and 7(0) of the election petition did not
set out the material facts to constitute cause of action u/
ss 100(1)(d)(iii) and (iv) of the Representation of the
People Act, 1951.
D
The questions for consideration before the Court
were: (i) "if an independent contesting candidate dies .
after the publication of list of contesting candidates, does
the electoral law as contained in 1951 Act or the Rules
framed thereunder cast any obligation upon the
E returning officer not to display the name of such
deceased candidate in the EVM"; and (ii) "whether the
pleadings in paragraph 7(0) set out the material facts to
constitute cause of action u/s 100(1)(d)(iii) and/or (iv) of
the 1951 Act.
F
Allowing the appeal, the Court
HELD: 1.1 This Court has stated time and again that
right to contest election or to questfon the election by
means of the election petition is neither common law nor
G fundamental right. Instead, it is a statutory right regulated
by the statutory provisions contained in the
Representation of the People Act, 1951. The Act is
complete and self-contained code within which the rights
claimed in relation to an election or election dispute must
H be found. [para 19) [275-H; 276-A-B]
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
261
N.P. Ponnuswami v. The Returning Officer, Namakkal
A
Constituency, Namakka, Salem Dist. and Others 1952 SCR
218 = 1952 AIR 64 ; , Jagan Nath v. Jaswant Singh and
Others 1954 SCR 892 =1954 AIR 210; Jyoti Basu & others
v. Debi Ghosaf and Others 1982 (3) SCR 318 = 1982 (1) SCC
691, Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi 1987
B
SCR 369 = 1987 Suppl. SCC 93; and Chandra Kishore Jha
v. Mahavir Prasad and Others 1999 (2 ) Suppl. SCR 754 =
1999 (8 ) sec 266 - referred to.
1.2 Once nomination has been filed by a candidate
and on scrutiny his candidature is found proper and
C
before the expiry of the period of the withdrawal, he has
not withdrawn his candidature and his name is included
in the list of validly nominated candidates prepared u/s
38 of the 1951 Act and r. 11 of the Conduct of Election
Rules, 1961, if death of a contesting candidate as defined
D
in s.38 takes place, the consequences following the
death of such contesting candidate have to be found
from electoral law contained in 1951 Act or the rules
framed thereunder. [para 20] [276-D-E]
1.3 Section 52, after its substitution by Act 21 of 1996,
takes cognizance of a death of a candidate of the
recognized political party before poll and not the other
two categories of the candidates classified in s. 38,
namely, (one) candidates of registered political parties
other than the candidates of recognized political parties
and (two) other candidates (which include independent
candidates). Section 52 enjoins that if a candidate set up
E
F
by recognized political party dies before the poll, the poll
must be adjourned; it does not provide any obligation on
G
the returning officer if a candidate of a registered political
party other than recognized political party or an
independent candidate dies after the list of the contesting
candidates as defined in s. 38 is published. [para 20 and
23] [276-F-H; 280-8-C]
H
262
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
1.4 Chapter XII of the Handbook deals with
preparation for the poll, particularly commissioning of
EVMs. A careful reading of paragraph 8.1 of the
Handbook relied upon on behalf of respondent no. 1
would show that the number of candidates' buttons
B which should be visible should be equal to the number
of contesting candidates and the remaining buttons must
be masked. The expression "contesting candidates" in
paragraph 8.1 has to be given the same meaning as the
contesting candidates defined in s. 38 of 1951 Act. No
C other meaning to the expression "contesting candidates"
can be given. The candidates who survive the date of the
withdrawal of candidatures are described in s.38 as
'contesting candidates'. Thus, the number of,candidates'
buttons which should be visible on EVM should be equal
0 to the number of candidates as published in the list of
validly nominated candidates who have not withdrawn
the candidature within the period prescribed and whose
nominations are included in the list published u/s 38. In
this view of the matter, there was no duty imposed on the
returning officer to mask the name of the candidate at SI.
E no. 9, who was an independent candidate and who died
on 13.4.2009 after publication of list of validly nominated
candidates being a contesting candidate as defined in s.
38. Moreover, the. instructions in the Handbook are only
·guidelines. These instructions have no statutory force.
F [para 16 and 25) [282-A-E]
Ramesh Rout vs. Rabindra Nath Rout 2012 (1) SCC 762
- relied on
·· 1.5 There being no non-compliance with the
G provisions of the Constitution or the 1951 Act or any rules
framed or orders made under 1951 Act by the returning
officer insofar as death of an independent candidate was
concerned, the averments made in paragraph 7(A) of the
election petition do not furnish any cause of action for
H
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
263
declaring the election of the returned candidate to be void
A
u/s 100(1 )(d)(iv). The High Court seriously erred in holding
otherwise and ordering trial of the election petition on the
pleadings set out in paragraph 7(A). [para 26) [283-A-B]
2.1 As regards the pleadings in paragraph 7(0) of the
election petition, it is significant to note that the first part
8
of 0. 6, r. 2 CPC is similar to clause 1 (a) of s. 83 of the
1951 Act. It is imperative for an election petition to contain
a concise statement of the material facts on which the
election petitioner relies. All basic and primary facts
which must be proved at the trial by a party to establish
C
the existence of cause of action or defence are material
facts. The bare allegations are never treated as material
facts. The material facts are such facts which afford a
basis for the allegations made in the election petition.
[para 32) (284-H; 285-A-C]
D
Virender Nath Gautam v. Satpal Singh and others 2006
(10 ) Suppl. SCR 413 = 2007 (3 ) SCC 617 -. relied on
Philipps v. Philipps and Others (1878) 4 Q.B.D. 127 and
the subsequent decision in Bruce v. Odhams Press Limited
E
(1936) 1 K.B. 697 - referred to
2.2 As regards the discrepancy in the number of
voters in the register of voters maintained in Form-17A
and the voters shown in Form 17C, it is significant to note
F
that the register of voters in Form-17A is not available for
inspection. Rule 93 of the 1961 Rules provides for the
production and inspection of election papers. Clause (dd)
of r. 93(1) makes a provision that the packets containing
register of voters in Form 17 A, while in the custody of the
G
district election officer or the returning officer, as the case
may be, shall not be opened and their contents shall not
be inspected by, or produced before, any person or
authority except under the order of a competent court.
[para 36] [286-H; 287 -A]
H
264
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
2.3 There is no averment that the election petitioner
or any of his polling agents had perused the register of
voters maintained in Form 17A. The basis of the
knowledge that the register of voters maintained in Form
17A records that 1091 voters came to vote is not disclosed
8 at all. Moreover, there is no pleading that 1091 voters who
came to vote at Booth No. 179 in fact voted. [para 37]
[287-8-CJ
2.4 The averment that in Form-17C, certified copy, "it
has been deliberately shown as 772 making a deliberate
C suppression of 319 votes" hardly improves the pleading
in the election petition. There is no averment that the
election petitioner or his agents challenged part II of
Form-17C before the authorities. At least, there are no
facts pleaded concerning that. There is no pleading that
D there was any challenge by the election petitioner or his
agents in respect of the counting figure in Form-20. The
only pleading is that the illegality has been deliberately
committed by the counting personnel while recording the
counting figure in Form-20 with respect to Booth No. 179.
E There is, thus, no disclosure of material facts in respect
of the challenge to the correctness of Form-20 and Form17C. [para 38] [287-E-G]
2.5 The pleading of material facts with regard to
suppression of 319 votes in paragraph 7(0) is also
F incomplete as it has not been disclosed who suppressed
319 votes; who was the counting agent present on behalf
of the election petitioner at the time of counting; how 319
votes were suppressed and why recounting was not
demanded. Moreover, there is no express pleading as to
G how the result of the election has been materially affected
by less counting of 319 votes. Omission of even a single
material fact leads to an incomplete cause of action and
statement of claim becomes bad. [para 39-40) [287-H;
288-A-C]
H
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
265
Samant N. Balkrishna and Another v. George Fernandez
A
and Others 1969 (3) SCR 603 =1969 ( 3 ) SCC 238 - relied
on.
2.6 The other part of paragraph 7(0) relating to 462
votes is based on the preceding paragraph 7(C) which
8
has been already struck out by the High Court. Therefore,
the pleadings in paragraph 7(D) in respect of 462 votes
do not survive as it is. Thus, the averments made in
paragraph 7(0) do not set out all the material facts and
do not afford an adequate basis for the allegations made
C
therein. The allegations in paragraph 7(0) do not
constitute cause of action for declaring election of the
returned candidate to be void. [para 41-42] [288-0-E]
3. The High Court has already struck out paragraphs
7(8), 7(C), 7(E), 7(F) and 7(G). The remaining two
D
paragraphs 7(A) and 7(0) do not disclose any cause of
action and are liable to be struck out. After striking out
paragraphs 7(A) and 7(0), nothing remains in the election
petition for trial and, therefore, the election petition is
liable to be rejected in its entirety. [para 43] [288-F-G]
E
Madan Gopal vs. Nek Ram Sharma 25 ELR 61 - cited.
Case Law Reference:
25 ELR 61
cited
para 18
F
1952 SCR 218
referred to
Para 19
1954 SCR 892
referred to
Para 19
1982 (3) SCR 318
referred to
Para 19
G
1987 SCR 369 '
referred to
Para 19
1999 (2 ) Suppl. SCR 754
referred to
Para 19
2012 (1 l sec 762
relied on
para 25
2006 (10 ) Suppl. SCR 413 relied on
para 32
H
266
SUPREME COURT REPORTS
[2012) 2 S.C.R.
A
(1878) 4 Q.B.D. 127
(1936) 1 K.B. 697
1969 (3) SCR 603
referred to
referred to
relied on
para 33
para 33
para 40
B
c
D
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2689 of 2012.
From the Judgment & Order dated 21.06.2011 of the High
Court of Orissa at Cuttack in Misc. Case No. 50 of 2009 in
Election Petition No. 2 of 2009.
C.A. Sundram, Rohini Musa, Zafar lnayat, Yogesh
Kotemath, Mahesh Agarwal, Rishi Agrawala, E.G. Agrawala,
Shakti Prasad Panda, Satyajit Mohanti, Gaurav Goel for the
Appellant.
Mukul Rohatgi, Bidhyadhar Mishra, S.N. Bhat, Sanjeeb
Panigrahi, Pusparaj Bharadwaj, Subhash Acharya, Shyam
Mohan, Ninad Laud for the Respondents.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Leave granted.
2. The two paragraphs - 7(A) and 7(0) - of the election
petition occupied significant time of this Court on 3 days -
February 7, 2012, February 9, 2012 and February 14, 2012 -
F to determine the correctness of the order dated June 21, 2011
passed by the Orissa High Court whereby the High Court
directed that the election petition shall proceed in respect of
the pleadings contained in these two paragraphs.
G
3. On the announcement of the 14th Assembly Election to
H
the Orissa State Legislative Assembly, insofar as it related to
25-Champua Assembly Constituency, the following sch·edule
of election was notified:
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
267
[R.M. LODHA, J.]
SCHEDULE OF ELECTION
A
28.3.2009
PERIOD PRESCRIBED FOR FILLING
To
NOMINATION.
4.4.2009
6.4.2009
DATE
FIXED
FOR
SCRUTINY OF
B
NOMINATION
8.4.2009
DATE OF WITHDRAWAL
23.4.2009
DATE OF POLLING
16.5.2009
DATE OF COUNTING/ DECLARATION OF
RESULT.
c
28.5.2009
DATE BEFORE WHICH THE ELECTION
SHALL BE COMPLETED.
4. As per the above schedule, on expiry of the time of
withdrawal on April 8, 2009, the returning officer prepared and
D
published the following list of contesting candidates.
SI. Name of the
Name of the
Election symb.ol
No. contesting candidate
political party
1.
Chitaranjan Nayek
B.S.P.
Ele11>hant
E
2.
Bidyadhar Mohanta
C.P.I.
Ears of Corn
and Sickle
3.
Muralimanohar Sharma
B.J.P.
Lotus
4.
Laxman Kumar Sethi
J.M.M.
Bow & Arrow
F
5.
Sanatan Mahakud
l.N.C.
Hand
6.
Keshab Mohanta
Samrudha
Nagara
Orissa
7.
Khitish Chandra Mohanta Orissa Mukti
Violin
Morch a
G
8.
Jadumani Patra
Samajbadi
Saw
Party
9.
Akhila Kumar Mohanta
Independent
Television
10. Akhileswar Giri
Independent
Battery & Torch
11. Abhimanyu Mohanta
Independent
Coconut
H
268
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A
12. Arabinda Behera
Independent
Ripe Plantation
13. Ashok Mohanta
Independent
Road Roller
14. Kusha Apot
Independent
Scissors
15. Jitu Patnaik
Independent
Saucer & Plate
B
16. Deepak Moharana
Independent
Camera
17. Puma Chandra Mohanta
Independent
Saloon
18. Prabhupada Mishra
Independent
Almirah
19. Buta Singh
Independent
Ceiling Fan
20. Bhabani Mohanta
Independent
Candle
21. Manoj Kumar Mohanta
Independent
Rail Engine
c
22. Sanjita Nayek
Independent
Batsman
5. It so happened that one of the contesting candidates at
0 SI. No. 9, namely, Akhila Kumar Mohanta, who was an
independent candidate, died on April 13, 2009. His death was
allegedly informed to the returning officer. However, his name
continued to appear in the list of contesting candidates and was
included in Electronic Voting Machine (EVM). The polling was
held on April 23, 2009 in all 218 booths of the 25-Champua
E Assembly Constituency through EVM. The total votes recorded
in the EVMs of 218 booths were 1,25,342 and postal ballots
were 10. The appellant, Jitu Patnaik who contested as an in
dependent candidate secured 27700 votes. The first
respondent, Sanatan Mohakud, a candidate of Indian National
F Congress, secured 27555 votes. The deceased Akhila Kumar
Mohanta got 550 votes. Since the appellant secured the
highest number of votes, he was declared elected from 25Champua Assembly Constituency.
G
6. The first respondent (hereinafter referred to as 'election
petitioner') challenged the election of the appellant (hereinafter
referred to as 'returned candidate') by filing an election petition
before the Orissa High Court. In paragraphs 7(A) to 7(G), the
election petitioner set out the case for declaring the election of
the returned candidate to be void and declare the election
H petitioner duly elected to the Orissa State Legislative Assembly
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
269
[R.M. LODHA, J.]
the returned candidate to be void and declare the election
A'
petitioner duly elected to the Orissa State Legislative Assembly
from 25-Champua Assembly Constituency.
7. On service of the notice of the election petition, the
returned candidate appeared and filed his written statement/
B
reply traversing the pleadings set out in the election petition.
The returned candidate also made an application under Order
VI Rule 16 read with Section 151 and Order VII Rule 11 of the
Code of Civil Procedure, 1908 (for short, 'CPC')' read with
Section 86( 1) of the Representation of the People Act, 1951
(for short, '1951 Act') with prayer to strike out/reject the
C
pleadings made in paragraphs 7(A), 7(B), 7(C), 7(0), 7(E), 7(F)
and 7(G) of the election petition and reject the election petition.
8: The High Court considered the above application made
by the returned candidate and, after hearing the learned counsel o
for the election petitioner and the returned candidate, struck out
paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G) of the election
petition by invoking its jurisdiction under Order VI, Rule 16(c)
of CPC. However, the High Court ordered that the election
petition shall proceed in respect of the remaining pleadings. In
E
other words, the High Court permitted trial of the election
petition on the pleadings set out in paragraphs 7(A) and 7(0).
9. The returned candidate is aggrieved by the above order
to the extent trial of the election petition on the pleadings set
out in paragraphs 7(A) and 7(0) has been ordered to be
F
continued. According to the returned candidate, these two
paragraphs do not set out the material facts to constitute cause
of action under Section 100 (1)(d)(iii) and/or (iv) of the 1951
Act.
10. It may be stated immediately that the election petitioner
G
has not chall~nged the order of the High Court striking out
pleadings in paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G).
11. We have heard Mr. C.A. Sundaram, learned senior
counsel for the appellant - returned candidate and Mr. Mukul
H
270
SUPREME COURT REPORTS
[2012] 2 S.C.R.
A Rohatgi, learned senior counsel for respondent - 1 - the
election petitioner.
B
c
D
E
F
G
H
12. We shall first take up the pleadings set out in paragraph
7(A) of the election petition which reads as follows :
"7(A) That Akhila Kumar Mohanta, who had filed
nomination as an independent candidate and was
assigned symbol Television died on 13.04.2009. His death
was duly notified by the Returning Officer. In view of his
death his name/symbol should not have been displayed in
the E.V.M. on the date of polling.
Both AKhila Kumar Mohanta as well as the Election
petitioner were sharing a common ideology. Both were
members of Indian National Congress. But since the
Election petitioner was having more support base amongst
the rank and file of the party he was nominated by the
l.N.C. as a party nominee to contest the Election and Akhila
Kumar Mohanta filed his nomination as an independent
candidate. The Voters who recorded their vote in the EVM
on the date of Polling, i.e., 23.04.09, in favour of Akhila
Kumar Mohanta were basically supporter of Indian N~tional
Congress. In the event Akhila Kumar Mohanta would have
withdrawn from contest or otherwise his name and symbol
would not have displayed on the E.V.M. on account of his
death, then the voters who have recorded their votes in his
favour would have recorded the same in favour of the
election Petitioner in view of their party affiliation. As
appears from the recording in Form-20, 550 (five hundred
fifty) votes have been recorded in favour of the deceased
contesting candidate Akhila Kumar Mohanta. Had his
name been not shown/displayed on the EVM, all these 550
(Five hundred fifty) votes would have been recorded in
favour of the Election petitioner. On account of the above
wrong committed by the Returning Officer the prospect of
wining of the Election petitioner has been adversely
affected and the result of Election has been materially
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
[R.M. LODHA, J.]
affected."
271
A
13. The crux of the above averments is that one of the
independent candidates Akhila Kumar Mohanta had died on
April 13, 2009 after the expiry of withdrawal date; his death was
duly notified to the returning officer but despite that his name
8
was displayed on the EVM on the date of the polling (although
he was already dead) and had his name not been· shown/
displayed on the EVM, all the 550 votes polled in his favour
would have been voted in favour of the election petitioner as
the deceased candidate and the election petitioner shared the
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common ideology and both were members of the Indian
National Congress and on account of wrong committed by the
returning officer, the prospect of the election petitioner has been
adversely affected. ln light o.f the above pleadings, the question
that falls for determination is: if an independent contesting
candidate dies after the publication of list of contesting
D
candidates, does the electoral law as contained in 1951 Act
or the Rules framed thereunder cast any obligation upon the
returning officer not to display the name of such deceased
candidate in the EVM.
14. In order to answer the above question, it is appropriate
to survey the scheme of the 1951 Act in regard to the conduct
of elections. Part V, Chapter l of the 1951 Act is relevant in this
regard. Section 30 requires the Election Commission, as soon
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as the notification calling upon a constituency to elect a
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member or members is issued, to appoint (a) the last date for
making nominations, (b) the date for the scrutiny of
nominations, (c) the last date for the withdrawal of candidatures,
(d) the date or dates on which a poll shall, if necessary, be
taken and (e) the date before which the election is to be
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completed. Section 31 requires the returning officer, on issue
of the notification under Section 30, to give public notice of the
intended election inviting nominations of candidates for such
election. Sections 32 and 33, inter alia, provide for nomination
of candidates for election, presentation of nomination paper
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[2012] 2 S.C.R.
A and requirements for a valid nomination. Under the scheme of
these two sections, a candidate for election has to be validly
nominated. As per Section 36, after the nomination papers are
received, on the date fixed for the scrutiny, returning officer is
to hold scrutiny of nominations. Immediately after all the
8 nomination papers have been scrutinized and decisions
accepting or rejecting the same have been recorded, the
returning officer is to prepare a list of validly nominated
candidates and affix it on his notice board. Section 37 enables
any of the validly nominated candidates to withdraw his
candidature on or before the last date for the withdrawal of
C candidature.
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, 15. Section 38 makes the provision for publication of list·
of contesting candidates. It reads as follows :
"S. 38. - Publication of list of contesting candidates.-(1)
Immediately after the expiry of the period within. which
candidatures may be withdrawn under sub- section (1) of
section 37, the returning officer shall prepare and publfsh
in such form and manner as may be prescribed a list of
contesting candidates, that is to say, candidates who were
included in the list of validly nominated candidates and who
have not withdrawn their candidature within the said period .
. (2) For the purpose of listing the names under sub- section
(1 ), the candidates shall be classified as follows, namely:-
(i) candidates of recognised political parties;
(ii) candidates of registered political parties other
than those mention~d in clause (i);
(iii) other candidates.
(3) The categories mentioned in sub- section (2) ~hall be
arranged in the order specified therein and the names of
candidates in each category shall be arranged in
alphabetical order and the addresses of the contesting
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
273
[R.M. LODHA, J.]
candidates as given in the nomination papers together with
A
such other particulars as may be prescribed."
16. Section 38, thus, provides that immediately after the
expiry of the period within which candidatures may be
withdrawn, the returning officer is to prepare and publish a list
8
of contesting candidates, that is to say, candidates who were
included in the list of validly nominated candidates and who
have not withdrawn their candidature within the said period. The
candidates who survive the date of the withdrawal of
candidatures are described in Section 38 as 'contesting
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candidates'. The list of contesting candidates prepared and
published by the returning officer contains the names of the
contesting candidates in alphabetical order and the addresses
of the contesting candidates as given in the nomination papers
together with such other particulars as may be prescribed.
17. Part V, Chapter Ill of the 1951 Act deals with the
general procedure at elections. Section 52, after amendment
in 1996, deals with the situation of a death of a candidate of a
recognized political party before poll. It reads as follows :
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E
"S.-52. - Death of a candidate of a recognized political
party before the poll.- (1) If a candidate set up by a
recognised political party,-
(a)
dies at any time after 11 A. M. on the last date for
making nominations and his nomination is found
F
valid on scrutiny under section 36; or
(b)
whose nomination has been found valid on scrutiny
under section 36 and who has not withdrawn his
candidature under section 37, dies, and in either
G
case, a report of his death is received at any time
before the publication of the list of contesting
candidates under section 38; or
(c)
dies as a contesting candidate and a report of his
death is received before the commencement of the
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c
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SUPREME COURT REPORTS
(2012) 2 S.C.R.
poll, the returning officer shall, upon being satisfied
about the fact of the death of the candidate, by
order, announce an adjournment of the poll to a
date to be notified later and report the fact to the
Election Commission and also to the appropriate
authority:
Provided that no order for adjourning a poll should
be made in a case referred to in clause (a) except after
the scrutiny of all the nominations including the nomination
of the deceased candidate.
(2) The Election Commission shall, on receipt of a
report from the returning officer under sub- section (1), call
upon the recognised political party, whose candidate has
died; to nominate another candidate for the said poll within
seven days of issue of such notice to such recognised
political party and the provisions of sections 30 to 37 shall,
so far as may be, apply in relation to such nomination as
they would apply to other nominations:
Provided that n
person who has given a notice of withdrawal of h
s candidature under sub- section (1) of section 37
' efore the adjournment of the poll shall be ineligible for being
nominated as a candidate for the election after such
adjournment.
(3) Where a list of contesting candidates had been
published under section 38 before the adjournment of the
poll under sub- section (1 ), the returning officer shall again
prepare and publish a fresh list of contesting candidates
under that section so as to include the name of the
candidate who has been validly nominated under subsection (2).
Explanation.- For the purposes of this section, sections
33 and 38," recognised political party", means a political
party recognised by the Election Commission under the
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
275
[R.M. LODHA, J.]
Election Symbols (Reservation and Allotment) Order,
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1968."
18. There is no provision other than Section 52 in the 1951
Act which provides for the consequences following the death
of a candidate after the publication of list of contesting
8
candidates under Section 38 and before poll. The Conduct of
Elections Rules, 1961 (for short, '1961 Rules') also do not
provide for such contingency. Mr. Mukul Rohatgi, learned senior
counsel for the election petitioner, however, heavily relied upon
certain instructions contained in the Handbook for Returning
Officers (at elections where electronic voting machines are
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used) issued by the Election Commission of India in 2009 (for
short, 'the Handbook'). He referred to paragraphs 4.14 and 4.15
which deal with commissioning of machines, paragraph 6.1
that deals with preparation of ballot unit and paragraphs 8.1
and 8.2 which provide for masking of candidates' buttons which
D
are not to be used. Mr. Mukul Rohatgi also referred to a
decision of Allahabad High Court in Madan Gopa/ v. Nek Ram
Sharma1 underlying philosophy of law in the case of death of
a contesting candidate before poll. Learned senior counsel
submitted that the law contemplates living person, and not a
E
dead person, to be a contesting candidate and, therefore, it
was obligatory on the part of the returning officer to erase or
mask the name of Akhila Kumar Mohanta-an independent
candidate-who died after the publication of the list of the
contesting candidates but before poll and whose death was
F
notified to the returning officer well in advance. He submitted
that the margin of difference of votes between the returned
candidate and the election petitioner was only 145 votes and
had 550 votes not been cast in favour of the deceased
candidate, the result of the election would have been otherwise.
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19. We are unable to accept the submission of Mr. Mukul
Rohatgi. In long line of cases beginning from 1952 this Court
has stated time and again that right to contest election or to
1.
25 ELR.
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[2012] 2 S.C.R.
A question the election by means of the election petition is neither
common law nor fundamental right. Instead, it is a statutory right
regulated by the statutory provisions contained in the 1951 Act.
The 1951 Act is complete and self-contained code within which
the rights claimed in relation to an election or election dispute
8 must be found. It is not necessary to refer to all such decisions
in this regard but reference to few of them, namely, N.P.
Ponnuswami v.
The Returning Officer, Namakkal
Constituency, Namakkal, Sa/em Dist. and Others2, Jagan
Nath v. Jaswant Singh and Others3, Jyoti Basu & others v.
C Debi Ghosa/ and Others4, Dhartipakar Madan Lal Agarwal v.
Rajiv Gandhi5 and Chandra Kishore Jha v. Mahavir Prasad
and Others6 shall suffice.
20. There is no doubt that only living persons can offer
themselves or be offered as candidates for membership of
D Parliament or State Legislatures. However, once nomination
has been filed by a candidate and on scrutiny his candidature
is found proper and before the expiry of the period of the
withdrawal, he has not withdrawn his candidature and his name
is included in the list of validly nominated candidates prepared
E under Section 38 of the 1951 Act and Rule 11 of the 1961
Rules, if death of a contesting candidate as defined in Section
38 takes place, the consequences following the death of such
contesting candidate have to be found from electoral law
contained in 1951 Act or the rules .framed thereunder. Section
F 52, after its substitution by Act 21 of 1996, takes cognizance
of a death of a candidate of the recognized political party before
poll and not the other two categories of the candidates
classified in Section 38, namely (one) candidates of registered
political parties other than the candidates of recognized political
G parties and (two) other candidates (which includes independent
2.
AIR 1952 SC 64.
3.
AIR 1954 SC 210.
4. · (1982) 1 sec 691.
5.
1987 (supp) sec 93.
H 6.
(1999) 8 sec 266.
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
277
[R.M. LODHA, J.]
candidates). Section 52 in its original form in 1951 Act was as
A
follows:-
"S.-52: Death of Candidate before poll. - If a candidate
who has been duly nominated under this Act die.s after the
date fixed for the scrutiny of nominations and a report of
8
his death is received. by the Returning Officer before the
commencement of the poll, the Returning Officer shall,
/
upon being satisfied of the fact of the death of the
candidate, countermand the poll and report the fact to the
Election Commission and also to the appropriate authority
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and all proceedings with reference to the election shall be
. cpmmenced anew in all respects as if for a new election:
Provided that no further nomination shall be
necessary in the case of a candidate whose nomination
was valid at the time of the countermanding of the poll :
Provided further that no person who has under subsection (1) of Section 37 given a notice of withdrawal of
his candidature before th.e countermanding of the poll shall
be ineligible for being nominated as a candidate for the
election after such counterm~nding".
21. According to the original provision contained in Section
52, the consequence of the death of a candidate duly
_nominated after the scrutiny of nomination form was
countermand of the poll. However, this provision was substituted
by Act i of 1992. On substitution by Act 2 of 1992, Section 52
read as follows:
"S. 52. Death of candidate before the poll. - If a candidate,
set up by a recognised political party,-
(a) dies at any time after 11 A. M. on the last date for
making nominations and his nomination is found valid on
scrutiny under section 36; or
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(b)whose nomination .has been found valid on scrutiny
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[2012] 2 S.C.R.
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under section 36 and who has not withdrawn his
candidature under section 37, dies, and in either case, a
report of his death is received at any time before the
publication of the list of contesting candidates under
section 38; or
B
c
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(c) dies as a contesting candidate and a report of his death
is received before the commencement of the poll, the
returning officer shall, upon being satisfied about the fact
of the death of the candidate, by order, countermand the
poll and report the fact to the Election Commission and
also to the appropriate authority and all proceedings with
reference to the election shall be commenced anew in all
respects as if for a new election:
Provided that no order for countermanding a poll
should be made in a case referred to in clause (a) except
after the scrutiny of all the nominations including the
nomination of the deceased candidate.
Provided further that no further nomination shall be
necessary in the case of a person who was a contesting
candidate at the time of the countermanding of the poll:
Provided also that no person who has given a notice
of withdrawal of his candidature under sub-section (1) of
Section 37 before the countermanding of the poll shall be
ineligible for being nominated as a candidate for the
election after such countermanding.
Explanation. - For the purposes of this section,
'recognised political party' means a political party
recognized by the Election Commission under the Election
Symbols (Reservation and Allotment) Order, 1968".
22. A significant departure was thus made from the original
Section 52 concerning the death of a candidate before the poll.
On death of a candidate set up by recognized political party,
H the consequence of countermand of the poll was provided in
JITU PATNAIK v. SANATAN MOHAKUD & ORS.
279
[R.M. LODHA, J.]
three situations set out therein namely; (a) a candidate dies at
A
any time after 11 a.m. on the last date for making nominations
and his nomination is found valid on scrutiny under Section 36;
or (b) a candidate whose nomination has been found valid on
scrutiny under Section 36 and who has not withdrawn his
candidature under Section 37, dies and (c) a candidate dies s
as contesting candidate before the commencement of the poll.
Section 52 substituted by Act 2 of 1992 provided that in any of
the above situations, the returning officer upon being satisfied
about the death of the candidate shall countermand the poll.
23. Section 52 which was brought in the 1951 Act by Act
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2 of 1992 was further substituted by Act 21 of 1996. The
substituted Section 52 by Act 21 of 1996 has already been
quoted above. The provision in 1951 Act now existing takes
cognizance of the death of a candidate of recognized political
party before poll only in three situations as were brought by Act
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2 of 1992. The significant change brought in law by 1996
amendment is that the death of a candidate of a recognized
political party before poll in three situations set out in clauses
(a), (b) and (c) results in adjournment of the poll to a date to be
notified later and not countermand of the poll.