# RAM PHAL KUNDU v. KAMAL SHARMA

- **Citation:** [2004] 1 S.C.R. 977
- **Court:** Supreme Court of India
- **Decided:** 2004-01-23
- **Bench:** Y.N. Khare, S.B. Sinha, G.P. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-phal-kundu-v-kamal-sharma-19877
- **Pages:** 27

## Headnote

Representation of the People Act, 1951-Section JOO (1) {c)-
Nomination-Rejection-Validity of-Two candidatesfi"om the same party filing c
nominations-Form B submitted by 'B' stated that nomination of 'A' filed
earlier had been rescinded-Returning Officer rejecting nomination of 'A'-
Office bearer of party signing Form B stating on oath that 'A ' was the official
candidate-'A' challenging election of 'C' on ground of improper rejection of
nomination-Held, exlrinsic evidence given afler the last date of filing
nomination cannot be considered-Objection not valid-Election Symbols D
(Resen•ation and Allotment) Order, 1968-Paras 13 and I 3A .
. "'(
Representation of the People Act, 1951-Section 36(4)-Defect of a
'
substantial character-Meaning of-Form B having signature of the person
authorised by the party but not the seal-Held,· not a defect of substantial
character-Election Symbols (Reservation and Allotment) Order, 1968-Paras E
13 and /3A.
In an election to the Legislative Assembly, the respondent filed his
nomination paper as the candidate of the Congress Party. In support of
his nomination, the respondent filed both Form A and Form B before the
,_>
Returning Officer. In Form A, the General Secretary of the Congress Party F
had authorised one "BSH" to intimate to the Returning Officer the name
of the approved candidate of the Party. In Form B, "BSH" had
communicated to the Returning Officer the name of the respondent as the
approved candidate of the Congress Party. The respondent filed his
nomination paper on the last date for filing nomination at 12.20 p.m.
G
4
On the same day, at 2.50 p.m. one "BS" also filed nomination paper
,,
claiming to be the authorised candidate of the Congress Party. "BS" also
filed Form A and Form B along with his nomination. In Form B filed by
"BS" it was stated that the earlier notice in Form B in favour of the
977
H
978
SUPREME COURT REPORTS
[2004] I S.C.R.
A respondent had been rescinded. Form B submitted by "BS" had signature
of "BSH" but did not have the seal of the Congress Party.
At the time of scrutiny of the nomination paper, "BSH" filed an
affidavit before the Returning Officer stating that the respondent was th•e
only person nominated as a candidate by the Congress Party. The
B Returning Officer, after hearing the parties, rejected the nomination paper
of the respondent.
The respondent thereafter filed a petition before the Election
Commission, New Delhi on 6.2.2000 and, by an order dated 7.2.2000, the
C Election ·Commission set aside the order of the Returning Officer and
directed him to conduct fresh scrutiny of nominations. Th·e Returnin:~
Officer again dismissed the objection raised by the respondent.
In the elections, the appellant won by a handsome margin. The
respondent filed an election petition alleging that his nomination paper
D was wrongly rejected by the Returning Officer and therefore,, the election
of the appellant should be set aside and holding of fresh elections should
be directed. The respondent, inter a/ia, contended:
E
F
(i)
Form B submitted by "BS" contained only the signature of
"BSH" and not the seal of the Party and therefore, there was
no proper authorisation of the Party in his favour;
(ii) Form B was submitted by "BS" only to the Returning Officer
and not to the Chief Electoral Officer and therefore, the
nomination ought to have been rejected;
(iii) Even the Election Commission had held in favour of th•e
respondent;
(iv) "BSH" had himself filed an affidavit before the Returnin:~
Officer confirming that the respondent was the only authorised
candidate of the Congress Party.
G
In his evidence, "BSH" admitted his signatures on the Form H
submitted by "BS" but stated that the said form was not to be submitted
as no final decision had been taken. The respondent did not examine the
other members of the Central Election Committee of the Congress party
to substantiate his case.
H
The High Court allowed the petition filed by the respondent, set aside
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•

## Text

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'
J.
A
RAM PHAL KUNDU
v.
KAMAL SHARMA
JANUARY 23, 2004
B
[Y.N. KHARE, CJ., S.B. SINHA AND G.P. MATHUR, JJ.)
Representation of the People Act, 1951-Section JOO (1) {c)-
Nomination-Rejection-Validity of-Two candidatesfi"om the same party filing c
nominations-Form B submitted by 'B' stated that nomination of 'A' filed
earlier had been rescinded-Returning Officer rejecting nomination of 'A'-
Office bearer of party signing Form B stating on oath that 'A ' was the official
candidate-'A' challenging election of 'C' on ground of improper rejection of
nomination-Held, exlrinsic evidence given afler the last date of filing
nomination cannot be considered-Objection not valid-Election Symbols D
(Resen•ation and Allotment) Order, 1968-Paras 13 and I 3A .
. "'(
Representation of the People Act, 1951-Section 36(4)-Defect of a
'
substantial character-Meaning of-Form B having signature of the person
authorised by the party but not the seal-Held,· not a defect of substantial
character-Election Symbols (Reservation and Allotment) Order, 1968-Paras E
13 and /3A.
In an election to the Legislative Assembly, the respondent filed his
nomination paper as the candidate of the Congress Party. In support of
his nomination, the respondent filed both Form A and Form B before the
,_>
Returning Officer. In Form A, the General Secretary of the Congress Party F
had authorised one "BSH" to intimate to the Returning Officer the name
of the approved candidate of the Party. In Form B, "BSH" had
communicated to the Returning Officer the name of the respondent as the
approved candidate of the Congress Party. The respondent filed his
nomination paper on the last date for filing nomination at 12.20 p.m.
G
4
On the same day, at 2.50 p.m. one "BS" also filed nomination paper
,,
claiming to be the authorised candidate of the Congress Party. "BS" also
filed Form A and Form B along with his nomination. In Form B filed by
"BS" it was stated that the earlier notice in Form B in favour of the
977
H
978
SUPREME COURT REPORTS
[2004] I S.C.R.
A respondent had been rescinded. Form B submitted by "BS" had signature
of "BSH" but did not have the seal of the Congress Party.
At the time of scrutiny of the nomination paper, "BSH" filed an
affidavit before the Returning Officer stating that the respondent was th•e
only person nominated as a candidate by the Congress Party. The
B Returning Officer, after hearing the parties, rejected the nomination paper
of the respondent.
The respondent thereafter filed a petition before the Election
Commission, New Delhi on 6.2.2000 and, by an order dated 7.2.2000, the
C Election ·Commission set aside the order of the Returning Officer and
directed him to conduct fresh scrutiny of nominations. Th·e Returnin:~
Officer again dismissed the objection raised by the respondent.
In the elections, the appellant won by a handsome margin. The
respondent filed an election petition alleging that his nomination paper
D was wrongly rejected by the Returning Officer and therefore,, the election
of the appellant should be set aside and holding of fresh elections should
be directed. The respondent, inter a/ia, contended:
E
F
(i)
Form B submitted by "BS" contained only the signature of
"BSH" and not the seal of the Party and therefore, there was
no proper authorisation of the Party in his favour;
(ii) Form B was submitted by "BS" only to the Returning Officer
and not to the Chief Electoral Officer and therefore, the
nomination ought to have been rejected;
(iii) Even the Election Commission had held in favour of th•e
respondent;
(iv) "BSH" had himself filed an affidavit before the Returnin:~
Officer confirming that the respondent was the only authorised
candidate of the Congress Party.
G
In his evidence, "BSH" admitted his signatures on the Form H
submitted by "BS" but stated that the said form was not to be submitted
as no final decision had been taken. The respondent did not examine the
other members of the Central Election Committee of the Congress party
to substantiate his case.
H
The High Court allowed the petition filed by the respondent, set aside
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•
R.P. KUNDU v. KAMAL
979
--
j_
the election of the appellant and directed the Election Commission lo hold A
....-<"
a fresh election.
The appellant filed appeal before the Court.
Allowing the appeal, the Court
B
HELD: I. The nomination paper of respondent was rightly rejected.
Form B submitted by "BS" was perfectly valid and as it contained a clear
recital that notice in Form B given earlier in favour of respondent is
rescinded, he became the candidate of the Congress Party.
1992-D, E; 993-F-GI c
2. The Election Symbols (Reservation and Allotment) Order, 1968
has been made in exercise of power conferred by Article 324 of the
Constitution of India read with Section 29A of the Representation of the
People Act,1951 and Rules 5 aud IO of the Conduct of Election Rules, 1961
and all other powers enabling it in this behalf by the Election Commission D
of India. The object is to ensure that the process of election is as general
i'
and fair as possible and that 110 elector should suffer from any handicap
).
in casting his vote in favour of a candidate of his choice. 1991-A-CI
Sadiq Ali v. Election Commission of India and Ors., AIR (1972) SC
187 and Roop Lal Sathi v. Nachhallar Singh. AIR (1982) SC 1559, referred E
to.
3.1. Where a power is gi\'cn to do a certain thing in a certain way,
the thing must be done in that way or not at all and other methods of
performance are necessarily forbidden. 1991-FI
F
.>
Taylor v. Taylor (1876) I Ch. D. 426; Nazir Ahmad v. King Emperor
AIR (1936) PC 253; S!ute of U.P. v. Singhara Singh, AIR (1964) SC 358
and Commissioner of Income Tax v. Anjum M. H. Ghaswala (2002( I SCC
633, referred to.
G
3.2. Paras 13 and 13A of the Election Symbols (Reservation and
'')'.
Allotment) Order, 1968 are exhaustive and lay down the complete
procedure for determining whether a candidate has been set up by a
political party. The question as to who shall be deemed to have been set
up by a political party has to be determined strictly in accordance with
H
paras 13 and 13A of the Election Symbols (Reservation and Allotment)
980
SUPREME COURT REPORTS
[2004] I S.C.R.
A Order, 1968 and extrinsic evidence cannot be looked into for this purpose:
unless it is pleaded that the signature of the authorised person on Form 13:
had been obtained from him under threat or by playing fraud upon him.
Where signature is obtained under threat or by playing fraud, it would
be nullity in the eyes of law and the document would be void.
B
1991-D-E, Fl
3.3. It is well settled principle of interpretation that the legislatun~
is deemed not to waste its words or to say anything in vain. The Courts
always presume that the legis.lature inserted every part of the Statute for
a purpose and the legislative intention is that every part of the Statute
C should have effect. In a case where more than one notice in Form B has
been received by the Returning Officer in respect of two or more
candidates and the political party fails to indicate in such notices that the
earlier notice or notices in Form B has or have been rescinded, the decision
of controversy by extrinsic evidence would make the second proviso to
para 13A of the Election Symbols (Reservation and Allotment) Order, 1968
D wholly redundant. 1992-F-G I
3.4. If instead of deciding the matter in accordance with paras 13
and 13A of the Election Symbols (Reservation and Allotment) Order, 1968,
it is decided on the basis of extrinsic evidence (oral or documentary) givc~n
E subsequent to the last date of filing of nomination paper, it is capable of
good deal of misuse. [993-A-BI
3.5. In Form B submitted by "BS" it was mentioned that the notice
in Form B given earlier in favour of the respondent is rescinded and this
was signed in ink by "BSH". Therefore, in terms of paras 13 and 13A of
F the Election Symbols (Reservation and Allotment) Order, 1968, "BS"
became the official candidate of the Congress Party. [993-G I
4. t. Para 13 of the Election Symbols (Reservation and Allotment)
Order, 1968 does not prescribe that Form B should also contain the seal
of the party. In fact, it lays emphasis upon the signature of the person
G authorised by the party. What is important and decisive is the sign a tu re
in ink of the authorised person and not the seal of the party which can be
made by an ordinary rubber stamp by anyone. [994-F; 995-C-O[
4.2. Section 36 (4) of the Representation of the People Act,1951 lays
H down that the Returning Officer shall not reject any nornination paper
l ...
.,
R.P. KUNDU v. KAMAL
981
_)
on the ground of any defect which is not of a substantial character. The A
absence of the seal of the Congress Party in the nomination paper of "BS"
cannot be said to be a defect of a substantial character so as to render it
invalid. (995-DI
5. The requirement of paras 13 and 13 A of the Election Symbols B
(Reservation and Allotment) Order, 1968 is that Form B should be
submitted to the Returning Officer. There is no requirement of the
submission of the said Form to the Chief Electoral Officer. (996-B-Cj
Jo.
6.1. The order of the Election Commission to the effect that the
Returning Officer shall take further consequential steps as may become c
necessary, by treating all earlier proceedings in relation to the said
candidates, as ab initio void and redraw the list of validly nominated
candidates could not have been passed without giving an opportunity of
hearing to "BS". 11000-F, GI
6.2. Once the nomination paper of candidate is rejected, the Act D
provides for only one remedy, that remedy being by a.1 election petition
""\'
to be presented after the election is over, and there is no remedy provided
at any intermediate stage. Therefore, the order passed by the Election
Commission was not only illegal but also without jurisdiction and the
respondent can get no advantage from the same. 11000-G-H; 1001-AI
E
·1
N. P. Punnuswami v. Returning Officer, AIR (1952) SC 64; Mohinder
Singh Gill v. Chief Election Commission, AIR (1978) SC 851 and Election
Commission v. Shivaji, AIR (1988) SC 61, referred to.
Rakesh Kumar v. Sunil Kumar, 119991 2 SCC 489, distinguished.
F
•. >
7. Unless the respondent fully established his case, it will not be
legally correct to set aside the election of the appellant. The respondent
has not led any independent evidence of unimpeachable character on which
implicit reliance may be placed. The respondent should have examined
other members of the Central Election Committee of Congress Party to G
substantiate his case that the Party had finally selected him as its candidate
,...,
and his candidature was never changed. The appellant being of a rival
party and having defeated the Congress candidate could not have led this
kind of evidence. (1001-E-F; 1003-C, DI
Jagan Nath v. Jaswant Singh, AIR (1954) SC 210; Gajanan H
982
SUPREME COURT REPORTS
(2004] I S.C.R.
A Krishnanand Bapat v. Dattaii Raghobaji Meghe, 119951 5 SCC 347 and Jeet
l_
Mohinder Singh v. Harminder Singh Jassi, 119991 9 SCC 381, referred to.
CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 4262 of
2003.
B
From the Judgment and Order dated 8.5.2003 of the Punjab and Haryana
High Court in E.P.No. 15 of 2000.
C.S. Vaidyanathan, Ajay Siwach and S.K. Sabharwal for the Appellant.
R.L. Batta, M.L. Saggar, O.P. Sharda, Ms. Kamini Sharma, Dr. Ramesh
C K. Haritesh, Jasbir Singh Malik, Som Vir Deshwal, Anil Shanna and Ms.
Lalita Kaushik for the Respondent.
The Judgment of the Court was delivered by
G.P. MATHUR, J. I. This appeal under Section 116A of the
D Representation of the People Act, 1951 (hereinafter referred to as "the Act")
has been preferred by the returned candidate Ram Phal Kundu against the
judgment and order dated 8.5.2003 of High Court of Punjab and Haryana by
which the election petition preferred by Kamal Sharma was allowed and the
election of the appellant from 50- Safidon Assembly Constituency to the
E Haryana Vidhan Sabha was set aside and a direction was issued to the Election
Commission of India to hold a fresh election for the said constituency.
2. The Election Commission of India issued a notification on 24.1.2000
calling upon the electors of Haryana to elect 90 members to the Hai·yana
Vidhan Sabha including that from 50-Safidon Assembly Constituency (Dist!.
F Jind). The schedule for holding the elections was as under :
Filing of nomination papers
: 27.1.2000 to 3.2.2000
Scrutiny of nomination papers
: 4.2.2000
G Last date for withdrawal of candidature
: 7.2.2000
Allotment of Symbols
: 7.2.2000 after 3.00 p.m.
Date of polling, if necessary
: 22.2.2000
H
Counting of votes
: 25.2.2000
""-..
_,
R.P. KUNDU v. KAMAL [G.I'. MATHUR, .I.]
983
J
3. The appellant Ram Phal Kundu filed his nomination paper as a A
.>
candidate of Indian National Lok Dal Party (hereinafter referred to as 'Lok
Dal Party'). The respo~dent Kamal Shanna and Bachan Singh, both filed
their nomination papers claiming to be candidates of Indian National Congress
Party (hereinafter referred to as 'Congress Party'). The Returning Officer
accepted the nomination paper of Bachan Singh as candidate of Congress
Pa11y and rejected that of Kamal Sharma. The election was held on 22.2.2000 B
as scheduled and the appellant Ram Phal Kundu secured the highest number
of valid votes and was declared to have been elected. Kamal Sharma then
filed an election petition under Sections 80, 81 read with Section l 00 of the
Act for setting aside the election of the appellant Ram Phal Kundu and for
declaring his election as void. A further prayer was made that the Election C
Commission be directed to hold a fresh election to the said Assembly
Constituency. After trial of the petition, the High Court allowed the election
petition on the ground that the nomination paper of Kamal Sharma was
wrongly rejected. Accordingly, the election of the appellant Ram Phal Kundu
was set aside and the Election Commission was directed to hold a fresh
election.
4. The case set up by Kamal Sharma in the election petition is as
follows:
D
The election petitioner applied to the Congress Committee for sponsoring
his name for 50-Safidon Assembly Constituency to contest the election as a E
candidate of the said party. The Central Election Committee of the party vide
Press release dated 2.2.2000 selected him as its candidate for the said
Constituency. Shri Motilal Vora, General Secretary of the party issued Form
A in the name of Shri Bhupinder Singh Hooda, President, Haryana Pradesh
Congress Committee as the authorised person to intimate the names of the F
candidates to be set up by the pai1y in the election. Shri Bhupinder Singh
Hooda then communicated to the Returning Officer, 50-Safidon Assembly
Constituency the name of the election petitioner Kamal Sharma as an approved
candidate of the Congress Party in Form B. The election petitioner filed his
nomination paper as a candidate of Congress Party at 12.20 p.111. on 3.2.2000
before the Returning Officer. During the course of scrutiny proceedings on G
4.2.2000 it was revealed that another candidate, namely, Bachan Singh had
also filed his nomination paper at 2.50 p.m. on 3.2.2000 claiming himself as
a candidate set up by the Congress Party. The scrutiny proceedings were
adjourned to 5.2.2000. Shri Bhupinder Singh Hooda filed an affidavit dated
4.2.2000 before the Returning Officer that the election petitioner Kamal H
984
SUPREME COURT REPORTS
[2004) I S.C.R.
A Sharma was the only person nominated as a candidate of the Congress Party
and any other unsealed authorisation letter of the party submitted by someone
else was not valid. Shri Bhupinder Singh Hooda also wrote to the Chief
Election Commissioner, New Delhi that Kamal Sharma was the only oftici1ally
approved candidate of the Congress Party. The scrutiny proceedings were
B conducted by the Returning Officer on 5.2.2000, who after hearing counsel
for the parties, wrote out a hand written order dismissing the objection filed
by the election petitioner Kamal Sharma and rejecting his nomination paper.
The nomination paper of Bachan Singh as a candidate of the Congress Party
was accepted. The election petitioner was the only official candidate of the
Congress Party as Forms A and B submitted by him along with his nomination
C paper were duly signed and stamped by the seal of the party, whereas Fonn
B submitted by Bachan Singh did not bear the seal of the party and was
consequently invalid. The Returning Officer committed a grave illegality in
overlooking another essential requirement of law that Form B submitted by
Bachan Singh had not reached the office of the Chief Electoral Officer,
Haryana within the prescribed time limit. The election petitioner then fil1:d a
D petition before the Chief Election Commissioner, New Delhi on 6.2.2000,
who by order dated 7.2.2000 set aside the order dated 5.2.2000 passed by the
l
Returning Officer and directed him to conduct a fresh scrutiny at 10.00 a.m.
ton 8.2.2000. The Returning Officer, thereafter, gave notice to election
petitioner Kamal Sharma, Bachan Singh and Shri Bhupinder Singh Hooda,
E who appeared before him and stated that Form B furnished by Bachan Singh
was not issued by his approval and that the election petitioner was the only
authorised candidate of the party. However, the Returning Officer passed an
order at 4.30 p.111. on 8.2.2000 dismissing the objection raised by the election
petitioner and allotted tile Sym bot of the Congress Party to Bachan Singh.
F
The result of the election was declared on 25.2.2000 and out of 85,742 valid
votes polled, the appellant Ram Phal Kundu secured 45,382 valid votes and
was declared as elected. In para 25 of the petition it is pleaded that there was
no proper authorisation by the Congress Party in favour of Bachan Singh as
the Form B submitted by him did not contain the seal of the party and on
account of wrongful rejection of the nomination paper of the election petitioner
G Kamal Sharma, the election of Ram Phal Kundu was vitiated.
5.
The appellant Ram Phal Kundu contested the election petition on
.....
the ground, inter alia, that though the election petitioner produced Forms A
'( •
and B before the Returning Officer that he is the nominee of the Congress
Party, but subsequently Bachan Singh produced Fonns A and B that he had
H been nominated by the Congress Party as a candidate for 50-Safidon Assembly
J
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.)
985
Cons'tituency. In Form B submitted by Bachan Singh the nomination 'of the A
election petitioner Kamal Shanna was rescinded and it was specifically
mentioned that the Congress Party had changed its \:andidate and had
nominated Bachan Singh as its official candidate. The notice in Form B as
per amended Clause 13 of Election Symbols (Reservation and Allotment)
Order, 1968 (hereinafter referred to as 'the Symbols Order') is required to be B
produced before the Returning Officer before 3.00 p.m. and there is no
requirement that the same should also reach or produced before the Chief
Electoral Officer. The nomination paper of election petitioner was filed along
with requisite forms at 12.20 p.m. on 3.2.2000 whereas Bachan Singh had
filed his nomination paper at 2.50 p.m. on 3.2.2000 and had submitted Forms
A and B. Thereafter, no further notice in Fonn B was received by the Returning C
Officer. The Form B submitted by the election petitioner is dated 2.2.2000
whereas the Form B submitted by Bachan Singh at 2.50 p.m. on 3.2.2000
wherein Shri Bhupinder Singh Hooda had himself mentioned that the
candidature of the election petitioner Kamal Sharma was rescinded is dated
3 .2.2000. It is further pleaded that the letter of Shri Bhupinder Singh Hooda
said to have been submitted on 4.2.2000 before the Returning Officer, is of D
no consequence and could not be taken into consideration in view of paras
13 and 13A of the Symbols Order which provide that the notice in writing
in Form B regarding the declaration of the official candidate has to be made
and submitted before the Returning Officer up to 3.00 p.m. on the last date
of filing nomination papers and not thereafter. Shri Bhupinder Singh Hooda E
had not denied his signature on the authorisation Form B in favour of Bachan
Singh in the affidavits filed by him on 4th and 5th February, 2000 and the
same having been filed subsequent to 3.00 p.m. on the last date of filing of
the nomination paper were of no consequence. The fact that the seal of the
party was not present in Form B of Bachan Singh was of no consequence as
it is not a defect of substantial character and under paras 13 and 13A of the F
Symbols Order only the signature of the authorised person is required and it
is nowhere provided that the Form must contain the seal of the party. It is
also pleaded that the Election Commission of India has no authority to set
aside the order of the Returning Officer rejecting a nomination paper and to
direct him to reconsider the matter. No appeal or revision lies to the Election. G
Commission of India against an order rejecting a nomination paper. In para
22 it is pleaded that Bachan Singh contested the election as a candidate of
the Congress Party and the appellant won the said election by a margin of
8,324 votes, having secured more than 55% of the actual votes polled. The
nominee of the Congress Party was very much there in the election fray but
the appellant was declared as elected. All the important leaders of Congress H
986
SUPREME COURT REPORTS
[2004] I S.C.R.
A Party at the State level and the national level, including Shri Motilal Vora
and others had campaigned for Bachan Singh. In the newspapers of 3.2.2000
it had been reported that the Congress Party had changed its candidate from
Kamal Sharma to Bachan Singh.
6.
It may be mentioned at the very outset that the election petitioner
B Kamal Shanna impleaded the returned candidate Ram Phal Kundu as the ~;ole
respondent and no other person was joined as party to the election petition.
Though there is not even a whisper against the appellant Ram Phal Kundu
and the entire allegations are against Bachan Singh but he was not arrayed
as a party to the election petition. Strictly speaking it is not a case of rejection
C of nomination paper but of ascertaining who was the candidate of Congress
Party as two persons had filed nomination papers claiming to be \the candidate
of the said party. Since only one person can be a candidate of a political party
and after acceptance of the candidature of Bachan Singh, the nomination
paper of'the election petitioner Kamal Sharma could be treat,ed as that of an
independent candidate. But as it was not subscribed by JO proposers be:ing
D electors of the Constituency, it had to be rejected in view of First Proviso to
Sub-section(!) of Section 33 of the Act. The non-joining of Bachan Singh
may not result in dismissal of the election petition in terms of Section 82 of
the Act. However in absence of Bachan Singh having been joined as party
to the election petition, an extremely difficult burden has been placed upon
E the appellant Ram Phal Kundu, who belongs to rival party (Lok Dal), to lead
evidence regarding the internal affairs of Congress Party and to show that the
nomination made in favour of Kamal Sharma had been subsequently rescinded
and the party had set up Bachan Singh as its official candidate.
7.
The main question which requires consideration is as to which of
F the two persons, namely, Kamal Sharma or Bachan Singh had been set up by
the Congress Party. Paras 13 and 13A of Election Symbols (Reservation_ and
Allotment) Order, 1968, as amended by Clause 3 of Elf:ction Symbols
(Reservation and Allotment) (Amendment) Order, 1999, which came i1nto
force on 20.5. I 999, which govern the situation read as under:
G
"13. When a candidate shall be deemed to be set up by a political
party-For the purposes of an election from any parliamentary or
assembly constituency to which this Order applies, a candidate shall
be deemed to be set up by a political party in any such parliamentary
or assembly constituency, if, and only if -
H
(a) the candidate has made the prescribed declaration to this effect
l
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..
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.]
987
J
' . ,.
in his nomination paper;
A
~
(b) a notice by the political party in writing, in Form B, to that effect
has, not later than 3 p.m. on the last date of making nominations,
been delivered to the Returning Officer of the constituency;,
(c) the said notice in Form· B is signed by the President, the Secretary B
or any other office bearer of the party, and the President, Secretary
or such other office bearer sending the notic~ has been authorised
by the party to send the notice;
.....
(d) the name and specimen signature of such authorised person are
communicated by the party, in Form A, to the Returning Officer c
of the constituency, and to the Chief Electoral Officer of the
State or Union Territory concerned, not later than 3 p.m. on the
last date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said office bearer
or person authorised by the party :
D
Provided that no fascimile signature or signature by means of
..
rubber stamp, etc., of any such office bearer or authorised person
;
shall be accepted and no form transmitted by fax shall be accepted.
/ 3A. Substitution of a candidate by a political party-For the removal E
of any doubt, it is hereby clarified that a political party which has
given a notice in Form B under paragraph 13 in favour of a candidate
may rescind that notice and may give a revised notice in Form B in
favour of another candidate for the constituency :
,.>
Provided that the revised notice in Form B, clearly indicating F
therein that the earlier notice in Form B has been rescinded, reaches
the Returning Officer of the constituency, not later than 3 p.m. on the
last date for making nominations, and the said revised notice in Form
B is signed by the authorised person referred to in clause (d) of
paragraph 13 :
G
Provided further that in case more than one notice in Form B is
' ).
received by the Returning Officer in respect of two or more candidates,
and the political party fails to indicate in such notices in Form B that
the earlier notice or notices in Form B, has or have been rescinded,
the Returning Officer shall accept the notice in Fonn B in respect of H
988
SUPREME COURT REPORTS
[2004] I S.C.R.
A
the candidate whose nomination paper was first delivered to him, and
i
the remaining candidate or candidates in respect of whom also notice
,..
or notices in Form B has or have been received by him, shall not be
treated as candidates set up by such political party."
In terms of paras 13 and l 3A of the Symbols Order, a candidate shall
B
be deemed to be set up by a political party if the following conditions
are fulfilled :
(1) The candidate has made the prescribed declaration to that effect
in his nomination paper.
....
c
(2) A notice by the political party in Form B to that effect has been
delivered to the Returning Officer not later than 3.00 p.m. on the
last date for making nomination.
(3) The notice in Fonn B is signed by the President, Secretary or
any other office bearer of the party and such person sending the
.. D
notice has been authorised by the party to send the notice .
(4) The name and specimen signature of such authorised person are
communicated by the party in Form A to (i.) the Returning
..
Officer; and (ii) the Chief Electoral Officer of the State or Union
Territory concerned not later than 3.00 p.m. on the last dale for
E
making nomination.
(5) A political party which has given a notice in Form B in favour
of candidate may rescind that notice and may give a re:vised
notice in Form B in favour of another candidate, provided such
revised notice in Form B clearly indicating therein that the earlier
F
notice in Form B has been rescinded, reaches the Returning
Officer not later than 3.00 p.m. on the last date for making
nomination and such revised notice in Form B is signed by the
"""'·.
authorised person referred to in Clause (d) of para 13.
(6) Forms A and B have to be signed in ink only by the office bearer
G
or authorised person.·No fascimile signature or signature by means
ofrubber stamp and no form transmitted by fax shall be accepted.
It may be noted that while Form A has to be submitted to both the
Returning Officer of the Constituency and to the Chief Electoral Officer of
" .
the State, but there is no such requirement with regard to Form B. Form B
H
has to be delivered only to the Returning Officer of the Constituency. The
Symbols Order has made a specific provision that Forms A and B have to be
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.]
989
signed in ink only and signature by means of rubber stamp, etc. shall not be A
accepted. In terms of the language used in paras 13 and I 3A of the Symbols
Order there is no requirement of putting the seal of the pa1ty in Fonns A and
B.
8.
There is no dispute that Shri Motilal Vora, General Secretary of the
Congress Party had sent a communication in Form A that Shri Bhupinder B
Singh Hooda had been authorised by the Indian National Congress to intimate
the names of the candidates proposed to be set up by the party at the election
and the said document Ex.PW2/M is on the record. A notice in Form B in
favour of 'Kamal' dated 2.2.2000 signed in ink by Shri Bhupinder Singh
Hooda was given by the election petitioner to the Returning Officer at 12.20 C
p.m. and it is marked as Ex. PW2/L. Another notice in Form B dated 3 .2.2000
in favour of Bachan Singh and signed in ink by Shri Bhupinder Singh Hooda
was given by Bachan Singh to the Returning Officer at 2.50 p.m. on 3.2.2000
and it is marked as Ex.PW4/A. At the bottom of this form it is mentioned as
under :
'The notice in 'Form B' given earlier in favour of Shri Kamal s/o
Janardhan as party's approved candidate, Smt Kusum w/o Kamal as
party's substitute candidate is hereby rescinded."
Below this writing there is signature of Shri Bhupinder Singh Hooda.
D
In his cross-examination PWS Shri Bhupinder Singh Hooda has admitted that E
Form B in favour of Bachan Singh contains his signature. He stated as under:
" ......... It is correct that document Ex.PW4/A which is Fonn B in
favour of Shri Bachan Singh Arya bears my signatures. Volunteered
I am admitting only my signatures and not the contents of the
Form ........ "
Towards the end of his cross-examination he stated as under :
"On Form B issued to Shri Bachan Singh Arya I only own signature
on this Form but I do not own the contents given in it."
Thus, there is no dispute that Form B submitted by Bachan Singh
contained a categorical statement to the effect that the notice given in Fonn
~
B earlier in favour of Kamal Sharma as party's approved candidate and Smt.
Kusum w/o Shri Kamal as party's substitute candidate is rescinded and the
said Form B had been signed in ink by Shri Bhupinder Singh Hooda, who
F
G
had been nominated as authorised person ofthe Congress Party. There is also H
990
SUPREME COURT REPORTS
[2004] I S.C.R.
A no dispute that the Form B submitted by Bachan Singh was lafer ir. point of
i
time and had been given at 2.50 p.m. on 3.2.2000 when the last time and date
for filing of the nomination paper was 3.00 p.m. on 3.2.2000.
9.
In .his statement PW6 Kamal Sharma has stated that in the list
released by All India Congress Committee on 2.2.2000 his name was
B mentioned as a candidate for 50-Safidon Assembly Constituency. In the Right
he collected Forms A and B from the Camp Office and submitted hi.s
nomination paper along with Forms A and B to the Returning Officer. A
letter written by Shri Bhupinder Singh Hooda wherein it was mentioned that
Kamal Sharma is the candidate of Congress Party from Safi don Constituency
c and no one else was a candidate, was delivered to the Returning Officer on
4.2.2000. This letter is on the record as Ex.PW2/J and it bears an endorsement
by the Returning Officer that the same was received by him at 11.00 a.m. on
4.2.2000. He has also stated that the Returning Officer had a telephonic talk
with Shri Hooda and thereafter an affidavit duly sworn by him on 4.2.2000
(
that Kamal is the only nominated candidate of the Congress Party, was also
D given. This affidavit also bears the endorsement of the Returning Officer that
the same was received by him at 11.00 a.m. on 4.2.2000. PW5 Shri Bhupindcw
Singh Hooda has deposed that the name of Bachan Singh was unde1r
+
consideration as a Congress candidate but it was never finalised and, therefore,
no Form B was issued to him and that Kamal Sharma was the candidate of
E the party. At about 3.30 p.m. on the last date of filing nomination, he received
information that two nomination forms had been submitted on behalf of the
Congress Party and thereafter he sent a letter through special messenger to
the Returning Officer that Kamal Sharma is the official candidate. After
receiving a telephonic call from the Returning Officer on 4.2.2000, he info1111ed
him that Kamal Sharma is the official candidate and thereafter he sent an
F affidavit to that effect. He has further deposed that he wrote a letter to the
Chief Election Commissioner and Chief Electoral Officer in this regard. Thus,
·"-. . .. _
the election petitioner Kamal Sharma has led evidence to show that after it
had been revealed that Bachan Singh had also filed his nomination paper as.
a candidate of the Congress Party, he lodged a protest before the Returning
G
Officer on the next day i.e. 4.2.2000 and Shri Bhupinder Singh Hooda
telephoned to him and also sent a letter and an affidavit that only Kamal
Sharma was the official candidate. But all these letters and affidavits, etc.
were received by the Returning Officer on 4.2.2000 and on subse:quent dates.
_.,
I 0. The question that arises is whether this evidence, which is all
H subsequent to the last date of filing of the nomination paper, can be looked
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.)
991
.1
into in order to ascertain as to who had been set up as a candidate by the A
Congress Party.
+
11. The Election Symbols (Reservation and Allotment) Order, 1968
has been· made in exercise of power conferred by Article 324 of the
Constitution read with Section 29A of the Representation of the People Act,
1951 and Rules 5 and 10 of the Conduct of Election Rules, 1961 and all other B
powers enabling it in this behalf by the Election Commission of India. In
Sadiq Ali v. Election Commission of India and Ors., AIR (1972) SC 187, the
Court explained the reasons which led to the introduction of the Symbols and
it was said that the object is to ensure that the process of election is as general
and fair as possible and that no elector should suffer from any handicap in C
casting his vote in favour of a candidate of his choice. In Roop Lal Sathi v.'
Nachhallar Singh, AIR (1982) SC 1559, it has been held that the Symbols
Order is an order made under the Act.
12. Paras 13 and 13A of the Symbols Order lay down the mechanism
for ascertaining when a candidate shall be deemed to be set up by a political · D
party and also the procedure for substitution of a candidate. The opening part
of para 13 says in unequivocal terms that for the purpose of an election for
any Parliamentary or Assembly Constituency a candidate shall be deemed to
be set up by a political party if and only if the conditions mentioned in subparagraphs (a) to (e) are satisfied. Para 13A lays down the procedure for
substitution of a candidate and also the requirements of a revised notice in
Form B. The second proviso to this paragraph takes care of a situation where
more than one notice in Form B is received by the Returning Officer and the
political party fails to indicate in such notices in Form B that the earlier
notice or notices have been rescinded. Thus, paras 13 and I 3A are exhaustive
E
and lay down the complete procedure for determining whether a candidate p
has been set up by a political party. The Rull! laid down in Taylor v. Taylor,
(1876) 1 Ch.D. 426 that where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at all and that other
methods of performance are necessarily forbidden was adopted for the first
time in India by the Judicial Committee of the Privy Council in Nazir Ahmad
v. King Emperor, AIR (1936) PC 253. The question for consideration was G
. whether the oral evidence of a Magistrate regarding the confession made by
">.
an accused, which had not been recorded in accordance with the statutory
provisions viz. Section 164 Cr.P.C. would be admissible. The First Class
Magistrate made rough notes of the confessional statements of the accused
which he made on the spot and thereafter he prepared a memo from the H
992
SUPREME COURT REPORTS
[2004] I S.C.R.
A rough notes which was put in evidence. The Magistrate also gave oral evidence
of-the confession made to him by the accused. The procedure of recording
confession in accordance with Section 164 Cr.P.C. had not been followed. Jt
was held that Section 164 Cr.P.C. having made specific provision for recording
of the confession, oral evidence of the Magistrate and the memorandum
B made by him could not be taken into consideration and had to be rejected.
In State of U.P. v. Singhara Singh, AIR (1964) SC 358, a Second Class
Magistrate not specially empowered, had recorded confessional statement of
the accused under Section 164 Cr.P.C. The said confession being inadmissible,
the prosecution sought to prove the same by the oral evidence of the Magistrate,
who deposed about the statement given by the accused. Relying upon the rul•e
C laid down in Taylor v. Taylor (supra) and Nazir Ahmad v. King Emperor
(supra) it was held that Section 164 Cr.P.C. which conferred on a Magistrat•e
the power to record statements or confessions, by necessary implication,
prohibited a Magistrate from giving oral evidence of the statements or
confessions made to him. This principle has been approved by this Court in
a series of decisions and the latest being by a Constitution Bench in
D Commissioner of Income Tax v. Anjum M.H. Ghaswa/a, [2002] l SCC 633
(para 27). Applying the said principle, we are of the opinion that the question
as to who shall be deemed to have been set up by a political pa1ty has to be
determined strictly in accordance with paras 13 and 13A of the Symbols
Order and extrinsic evidence cannot be looked into for this purpose unless i.t
E is pleaded that the signature of the authorised person on Form B had been
obtained from him under threat or by playing fraud upon him. Where signature
is obtained under threat or by playing fraud, it will be a nullity in the eyes
of law and the document would be void.
13. The issue can be examined from another angle. In a case where
F more than one notice in Form B has been received by the Returning Officer
in respect of two or more candidates and the political party fails to indicate
in such notices that the earlier notice or notices in Form B has or have been
rescinded, the decision of controversy by extrinsic evidence would make the
second proviso to para 13A wholly redundant. It is well settled principle of
G interpretation that the legislature is deemed not to waste its words or to say
anything in vain. The Courts always presume that the legislature inserted
every part of the Statute for a purpose and the legislative intention is that
every part of the Statute should have effect. See J. K. Collon Spinning &
Weaving Mills Co. v. State of U.P., AIR (I 961) SC 1170 and Moh. Ali Khan
v. The Commissioner of Wealth Tax, AIR (1997) SC 1165 and C.l.T. v.
H Kanpur Coal Syndicate, AIR (1965) SC 325.
+
R.P. KUNDU v. KAMAL (G.P. MATHUR. J.]
993
14. If instead of deciding the matter in accordance with paras 13 and A
13A of the Symbols Order, it is decided on the basis of extrinsic evidence
(oral or documentary) given subsequent to the last date of filing of nomination
paper, it is capable of good deal of mis use.