# KAMENG DOLO v. ATUMWELLY

- **Citation:** [2017] 5 S.C.R. 114
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal No. 2991 of2017
- **Bench:** Dipak Misra, A. M. Khanwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kameng-dolo-v-atumwelly-32116
- **Pages:** 33

## Headnote

Representation of the People Act, 19 51:
ss.37 and 100(1)(d)(iv) - Withdrawal of candidature -
Propriety of - Election petition challenging legality and validizv of
C election of the appellant to State Legis/(Jtive Assemb~v on the ground
of non-compliance of provisions of s.37 - High Court declared the
election as void - On appeal, held: In the present case there has
been total non-compliance of s.37 - Non- compliance of provisions
of s. 3 7 has materially affected the result of the election of the
D
returned candidate as transgression of such statutory provision
tantamounts to sacrilege of democracy.
Dismissing the appeal, the Court
HELD: 1.1 On a plain reading of section 37 of
Representation of the People Act, 1951, it is clear that a candidate
E 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 O'clock in the afternoon on the date fixed under Clause (c)
of Section 30 to the Returning Officer. The said notice, as subsection (1) of Section 37 lays down, is to be delivered to the
F 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. 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
G the notice. That reflects the sanctity of withdrawal by a candidate.
Sub-section (3) of Section 37 makes it obligatory on the part of
the Returning Officer to 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. [Paras 19, 20) [131-E, H; 132-AH BJ
114
KAMENG DOLO v. ATUM WELLY
115
1.2 In the present case from the evidence of the Returning A
Officer, it is explicit that withdrawal of the candidature was not
made by the candidate or by his proposer or his election agent.
There was no authorisation for the same to the proposer or
election agent. There has been total non-compliance of Section
37 of the Act. [Paras 21, 22] [132-C, H; 133-B]
2.1 To sustain the ground as stipulated under Section
• lOO(l)(d)(iv), the election petitioner is required not only to plead
and prove the ground but also to establish that the result of the
election of the returned candidate concerned has been materially
affected. [Para 27] [136-C, DJ
2.2 As s.37 would reflect, the legislature has provided
number of safeguards before exercising the authority for
acceptance of withdrawal of a candidate. The language employed
B
c
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 D
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. The emphasis is on
"two candidates" because if one's withdrawal is allowed in
complete violation of the statutory provision, the other candidate E
gets automatically declared elected, for there is no election, no
contest. (P<Jra 41] (145-B-E]
2.3 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
F
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 sanctity of the
electoral process imperatively commands that each candidate
owes and is under an obligation that a fair election is held and G
freedom in the exercise of the judgment which engulfs .a voter's
right, a free choice, in selecting

## Text

_Characters 0–39,740 of 74,120. This is a partial read: ask again with offset=39740 for what follows._

A
B
[2017] 5 S.C.R. 114
KAMENG DOLO
v.
ATUMWELLY
(Civil Appeal No. 2991 of2017)
MAY09,2017
[DIPAK MISRA AND A. M. KHANWILKAR, JJ.]
Representation of the People Act, 19 51:
ss.37 and 100(1)(d)(iv) - Withdrawal of candidature -
Propriety of - Election petition challenging legality and validizv of
C election of the appellant to State Legis/(Jtive Assemb~v on the ground
of non-compliance of provisions of s.37 - High Court declared the
election as void - On appeal, held: In the present case there has
been total non-compliance of s.37 - Non- compliance of provisions
of s. 3 7 has materially affected the result of the election of the
D
returned candidate as transgression of such statutory provision
tantamounts to sacrilege of democracy.
Dismissing the appeal, the Court
HELD: 1.1 On a plain reading of section 37 of
Representation of the People Act, 1951, it is clear that a candidate
E 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 O'clock in the afternoon on the date fixed under Clause (c)
of Section 30 to the Returning Officer. The said notice, as subsection (1) of Section 37 lays down, is to be delivered to the
F 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. 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
G the notice. That reflects the sanctity of withdrawal by a candidate.
Sub-section (3) of Section 37 makes it obligatory on the part of
the Returning Officer to 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. [Paras 19, 20) [131-E, H; 132-AH BJ
114
KAMENG DOLO v. ATUM WELLY
115
1.2 In the present case from the evidence of the Returning A
Officer, it is explicit that withdrawal of the candidature was not
made by the candidate or by his proposer or his election agent.
There was no authorisation for the same to the proposer or
election agent. There has been total non-compliance of Section
37 of the Act. [Paras 21, 22] [132-C, H; 133-B]
2.1 To sustain the ground as stipulated under Section
• lOO(l)(d)(iv), the election petitioner is required not only to plead
and prove the ground but also to establish that the result of the
election of the returned candidate concerned has been materially
affected. [Para 27] [136-C, DJ
2.2 As s.37 would reflect, the legislature has provided
number of safeguards before exercising the authority for
acceptance of withdrawal of a candidate. The language employed
B
c
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 D
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. The emphasis is on
"two candidates" because if one's withdrawal is allowed in
complete violation of the statutory provision, the other candidate E
gets automatically declared elected, for there is no election, no
contest. (P<Jra 41] (145-B-E]
2.3 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
F
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 sanctity of the
electoral process imperatively commands that each candidate
owes and is under an obligation that a fair election is held and G
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 represent the constituency, has to be given
due weightagc, arc never to be eroded. The responsibility of a
returning officer being statutorily significant, he has to keep H
116
SUPREME COURT REPORTS
[2017) 5 S.C.R.
A himself alive to every facet and not act in a manner that will create
a dent or hollowness in the election process. [Para 42) [145-EH; 146-A]
B
c
D
E
F
G
H
Vishwanatha Reddy v. Konappa Rudrappa Nadgouda
AIR 1969. SC 604 : [1969) SCR 90 - followed.
Krishnamoorthyv. Sivakumar (2015) 3 SCC 467 :
[2015) 4 SCR 987 -
relied on.
Mangani Lal Manda/ v. Bishnu Deo Bhandari (2012) 3
SCC 314 : [2012) 1 SCR 527; Union of India v.
Association for Democratic Reforms (2002) 5 SCC 294 :
[2002) 3 SCR 696; Peoples Union for Civil Liberties
v. Union of India (2003) 4 sec· 399 : [2003) 2 SCR
1136; Santosh Yadav v. Narender Singh (2002) 1 SCC
160: [2001) 4 Suppl. SCR 545; Tek Chand v. Dile Ram
(2001) 3 SCC 290: [2001) 1SCR527; Rajendra Kumar
Meshram v. Vanshmani Prasad Verma (2016) 10 SCC
715; Rattan Anmol Singh & Ram Prakash v. Ch. Atma
Ram and others AIR 1954 SC 510 : (1955) SCR 481;
Surendra Nath Khosla v. S. Da/ip Singh AIR 1957 SC
242 : [ 1957) SCR 179; Durai Muthuswami v. N.
Nachiappan and others (1973) 2 SCC 45 : [1974) 1
SCR 40; State (Delhi Administration) v. Pali Ram (1979)
2 SCC 158 : (1979) 1 SCR 931; Murari Lal v. State of
Madhya Pradesh (1980) 1 SCC 704 : [1980) 2
SCR 249; A. Nee/a/ohithadasan Nadar v. George
Mascrene and others 1994 Suppl. (2) SCC 619;
Virender Nath Gautam v. Satpal Singh and others (2007)
3 SCC 617: (2006) 10 Suppl. SCR 413; Ram Sukh v.
Dinesh Aggarwal (2009) 10 SCC 541: [2009] 14 SCR
836; Jitu Patnaik v. Sanatan Mohakud and others
(2012) 4 SCC 194 : (2012) 2 SCR 258; Maria
Margarida Sequeira Fernandes and others v. Erasmo
Jack De Sequeira (Dead) through LRs. (2012) 5 SCC
370: [2012] 3 SCR 841; Her Highness Maharani Vl}aya
Raje Scindhia AIR 1959 (MP) 109; Jagan Nath v.
Jaswant Singh & others AIR 1954 SC 210: (1954]
SCR 892; Santokh Singh v. Mohan Singh AIR 1994
(P&H) 258; Jabar Singh v. Genda la/ [1964] 6 SCR
KAMENG DOLO v. ATUM WELLY
54; South Indian Corporation (P) Ltd v. Secretary, Board
of Revenue, Trivandrum and another AIR 1964 SC
207: [1964] SCR 2SO; Khaji Khanavar Khadirkhan v.
Siddavanballi Nijalingappa & another (1969) 1 SCC
636 : [1969] 3 SCR 524; Samant N. Balkrishna v.
George Fernandez and others (1969) 3 SCC 23S:[1973]
2 SCR 702; Smt. Bhagwan Karu v. Shri Maharaj
Krishan Sharma and others (1973) 4 SCC 46 : [1977]
2 SCR 1007; Magan Bihari Lal v. State of Punjab
(1977)
2 SCC 210; Narender Singh v. Mala Ram and
another (1999) S SCC 19S : (1999] 2 Suppl. SCR 43S;
Jezt Mohinder Singh v. Harminder Singh Jassi (1999)
9 SCC 3S6: [1999] 4 Suppl. SCR 33; K.T. Plantation
Pvt Ltd v. State of Karnataka (2011) 9 SCC 1 : [2011)
13 SCR 636; T.A. Ahammed Kabeer v. A.A. Azeez and
others (2003) 5 SCC 650: [2003] 3 SCR 511; Rajpal
Sarma v. State of U.P. (2014) 105 ALR 140 - referred
to.
Nazir Ahmed v. The King Emperor AIR 1936 PC 25.3 - .
referred to.
Case Law Reference
(1974] 1 SCR 40
referred to
Paras
(1979] 1 SCR 931
referred to
Paras
[19SO] 2 SCR 249
referred to
Paras
1994 Suppl. (2) sec 619
referred to
Paras
[2006] 10 Suppl. SCR 413
referred to
Paras
[2009] 14 SCR S36
referred to
Para S
[2012] 2 SCR 25S
referred to
Paras
[2012] 3 SCR S41
referred to
Paras
AIR 1959 (MP) 109
referred to
Paras
[1954] SCR S92
referred to
Para S
AIR 1994 (P&H) 25S
referred to
Para S
[2012] 1 SCR 527
referred to
Para9
117
A
B
c
D
E
F
G
H
118
SUPREME COURT REPORTS
[2017] 5 S.C.R.
A
[1964] 6 SCR 54
referred to
Para9
(1964) SCR 280
referred to
Para 9
(1969) 3 SCR 524
referred to
Para9
(1973) 2 SCR 702
referred to
Para 9
B
[1977) 2 SCR 1007
referred to
Para9
(1977) 2 sec 210
referred to
Para 9
[1999] 2 Suppl. SCR 438
referred to
Para 9
[1999) 4 Suppl. SCR 33
referred to
Para 9
c (2011) 13 SCR 636
referred to
Para 9
(2003) 3 SCR SU
referred to
Para 9
(2014) lOS ALR 140
referred to
Para 9
AIR 1936 PC 253
referred to
Para 13
D
(2003) 2 SCR 1136
referred to
Para 17
(2002] 3 SCR 696
referred to
Para 25
(2001] 4 Suppl. SCR S4S
referred to
Para 27
E
[2001] 1 SCR 527
referred to
Para 28
(2016) 10 sec 11s
referred to
Para 32
(19SS] SCR 481
referred to
Para 36
(1957) SCRl 79
referred to
Para 37
F
[1969] SCR 90
followed
Para 38
[2015] 4 SCR 987
relied on
Para 40
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2991
of2017.
G
From the Judgment and Order dated 08.02.2017 of the High Court
of Gauhati, Gauhati in Election Petition No. 2 of2014.
Preetesh Kapur, Shaunak Kashyap,A. Kash yap, Rahul Mukherjee
(for M/s. Mitter & Mitter Co.), Mis. Mitter & Mitter Co., Ad vs. for the
Appellant.
H
KAMENG DOLO v. ATUM WELLY
119
C. A. Sundaram, Subramonium Prasad, Sr. Advs, Abhay Kumar,
A
Mrs. Ila Haldia, Abhishek Sanskritik, Himanshi Pal, Saurabh Mishra,
Ms. Rohini Musa, Abhishek Gupta, Ms. Aakanksha Kaur, Himanshu,
Advs. for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. The instant appeal has been preforred B
under Section l l 6A of the Representation of the People Act, 195 l (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
of2014 filed by the respondent herein, and declared the election of the
appellant herein, from No.12 Pakke-Kessang (ST) Legislative Assembly c
Constituency (hereinafter referred to as 'constituency'), as void under
Section' lOO(l)(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
D
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
ofboth the candidates were taken up for scrutiny on 24.03.2014 i!l 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 ~tanagar and remained there from
26.03.2014 to 30.03.2014. In the eve'hing of26.03.2014, 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
E
F
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.
G
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
H
120
SUPREME COURT REPORTS
[2017] 5 S.C.R.
A
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.
B
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
C
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
D
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.
E
F
G
H
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!
3. Whether the Returning Officer of the Constituency ncted in
compliance of the requirements of Section 37(3) of the Act and
Rule 9 of the Conduct ofElection Rules, 1961 while accepting the
notice of withdrawal of petitioner's candidature from the
constituency?
4. Whetherthe Returning Officer of the constituency acted legally
in declaring the result of election to Arunachal Pradesh State
K.AMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]
121
Legislative Assembly from the constituency under Section 53(2)
A
of the Conduct of Election Rules, 1961 and declaring respondent
duly elected uncontested from the said constituen~y?
5. Whether election of the respondent to the Arunachal Pradesh
St.ate Legislative Assembly from the constituency is liable to be
held void?
B
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
C
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
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
D
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 IOO(l)(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 t.Pok note of the rivalised
submissions raised at the Bar and noted the decisfons relied upon by the
election petitioner in support of the stand, that is, Durai Muthuswami v.
N. Nachiappan and others1, State (Delhi Administration) v. Pali
Ram 2 ,
Murari Lal v. State of Madhya Pradesh3, A.
Nee/a/ohithadasan Nadar v. George Mascrene and others4, Vire11der
1 (1973) 2 sec 45
'(1979) 2 sec 158
'(I 980) 1 sec 104
'(1994) Supp (2) sec 619
E
F
G
H
122
SUPREME COURT REPORTS
[2017] 5 S.C.R.
A Nath Gautam v. Satpal Singh and others3, Ram Sukh v. Dinesh
Aggarwa/6, Jitu Patnaik v. Sanatan Mohakud and others1, 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
B Singh v. Mohan Singh
11 •
c
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 returned 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 Section l 00 of the
Act, highlighted that in the absence of any pleading with regard to corrupt
pract;ces, the election of the elected candidate could not be unsettled.
He had drawn support from the authority in Mangani Lal Manda/ v.
Bishnu Deo Bhandari12• Additionally, it was urged by him that it is
D 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
E 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
F ·the authorities cited by the election petitioner were 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
G
'c2007J 3 sec 617
• (2009J 1 o sec 541
, (2012) 4 sec 194
• (2012) 5 sec 310
'AIR 1959 (MP) 109
10 AIR 1954 SC 210
II AIR 1994 (P&H) 258
H
12 (2012) 3 sec 314
•
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]
123
warranted dismissal. To buttress the said submission reliance was placed
A
upon Jagan Nath (supra), Jabar Singh v. Genda la/11, 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 Slwrma and others17, Magan Bihari Lal v. State of Punjab18,
Narendcr Singh v. Mala Ram and anotlter19, Jeet Mo/tinder Singh
B
v. Harminder Singh Jassi20, K. T. Plantation Pvt Ltd v. State of
Karnataka21, T.A. Ahammed Kabeer v. A.A. Azeez and others22, Ram
Suklt (supra), Mangani Lal Manda/ (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
13 (1964) 6 SCR 54
14 AIR 1964 SC 207
1' ( 1969) 1 sec 636
1' (1969) 3 sec 238
11 (1973)4 sec 46
1' (1977) 2 sec 210
1' (1999) 8 sec 198
20 ( 1999) 9 sec 386
21 (2011) 9 sec 1
21 (2003 J 5 sec 650
23 (2014) 105 ALR 140
c
D
E'
F
G
H
124
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2017] 5 S.C.R.
same. thereafter, he received a telephone call from Dr. Byabang
Rana requesting him to accept withdrawal of 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. of26.03.2014.
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 exa!llination, 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 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
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]
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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 PWl, 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 writirig 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. Crossexamination of this witness was declined by the petitioner.
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34. Ext.9 is the authority letter dated 26.03.14 whereby, petitioner
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authorized Sri Sanjeev Tana to submit his letter of withdrawal of
candidature to the Returning Officer. Ext. 9(2) is the signatl!re of
the petitioner. Ext. l 0 is the notice of withdrawal of candidature n
Form No.5 and signature of petitioner is Ext. lO(lA). Ext.11 is
the receipt ofnotice of withdrawal issued by the Returning Officer.
Ext.15 is the list of documents which were found on opening of E
th~ 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 ndtice 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 Sl to S4 and
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A 1 to A 16 did not write the red enclosed signature similarly
stamped and marked Q2. Regarding ownership of signature
marked Q 1, no opinion was expressed because it was a copy and
also a non-hand written one which he explained in his evidence to
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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 ofimitation 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:
"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 subsection (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(!), 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.
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]
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40. In the election petition, petitioner has pleaded in paragraph-8 A
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
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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 I 0
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
C
27, petitioner has averred that withdrawal of his candidature and
acceptance of the same by the Returning Officer were in violation
of sub-sections (I) 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 D
candidature had materially affected the result of the Election and
therefore unopposed Election of the respondent has been rendered
void under section I OO(l)(d)(iv) of the Act."
12. The High Court, as is perceptible, took note of the evidence of
PW-I, 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 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 S 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 ofDW-9, he stated that he had filled up Form
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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 G
was handed over to Sri Sanjeev Tana who was present at the time of
filing up of Form No. S and thereafter Sri Sanjeev Tana went to the
Returning Officer with Form No. S along with the authority letter signed
by the petitioner whereafter those were handed over to the Returning
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Offic'!r. 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 was
neither the candidate himself nor the proposer nor the election agent of
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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
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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 oflaw is traceable
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to the English decision in Taylor v. Taylor followed by the Privy Council
in Nazir Ahmed v. The King Emperor"-4• This rule has since been
applied to Indian Courts across jurisprudences. After so stating, the High
Court observed:-
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"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 3 7 of the Act. The expression
'material facts' as appearing in section 83(l)(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
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KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]
129
rule of universal application can be laid down. However, it is
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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 c;fthe
constituency, the High Court held:-
"49. Since this has been the main argument oflearned counsel for
the respondent, a further elaboration of the order extracted above
B
is necessary. The proposition advanced by the learned counsel c
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
D
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
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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 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 IOO(!)(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 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 hereun.der. 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 of2002
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 India2s. 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 nomination papers of the appellant and
the respondent were scrutinised and they were found to be valid.
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KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]
131
18. Section 37 of the Act is the provision that calls for interpretation
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in this case. The said Section reads as follows:-
"3 7. Withdrawal of candidature.-
( I) Any candidate may withdraw his candidature by a notice in
writing which shall contain such particulars as may be prescribed B
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 either by such candidate in person or by his
proposer, or election agent who has been authorised in this behalf
in writing by such candidate.
(2) No person who has given a notice of withdrawal of his
candidature under sub-section (I) shall be allowed to cancel the
notice.
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(3) The returning officer shall, on being satisfied as to the
genuineness ofa notice of withdrawal and the identity of the person D
delivering it under sub-section(!), 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
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"
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20.