Civil Appeal No. 2991 of 2017. Case: Kameng Dolo Vs Atum Welly. Supreme Court (India)
| Case Number | Civil Appeal No. 2991 of 2017 |
| Judges | Dipak Misra and A.M. Khanwilkar, JJ. |
| Issue | Representation of the People Act, 1951 - Sections 30, 30B, 31, 32, 33, 33(5), 33A, 33B, 34, 35, 36, 37, 37(1), 37(2), 37(3), 53, 83, 83(1), 84, 100, 100(1), 100(2), 101, 116A; Representation of the People (Third Amendment) Act, 2002; Representation of the People (Second Amendment) Act, 1956; Government of Union Territories Act, 1963; Indian ... |
| Judgement Date | May 09, 2017 |
| Court | Supreme Court (India) |
Judgment:
Dipak Misra, J.
1. The instant appeal has been preferred Under Section 116A of the Representation of the People Act, 1951 (for brevity, "the Act") assailing against judgment and order dated 08.02.2017 whereby the High Court of Gauhati had allowed the Election Petition 2 of 2014 filed by the Respondent herein, and declared the election of the Appellant herein, from No. 12 Pakke-Kessang (ST) Legislative Assembly Constituency (hereinafter referred to as 'constituency'), as void Under Section 100(1)(d)(iv) of the Act.
2. The facts necessary for adjudication of the present appeal are that the Appellant and the Respondent filed their respective nomination papers from the earlier mentioned constituency. No other candidate had filed nomination papers in respect of the said constituency. Respondent's younger brother, Sri Utung Welly was the election agent of the Respondent, who was also a registered voter of the constituency. Nomination papers of both the candidates were taken up for scrutiny on 24.03.2014 in the office of the Returning Officer at Seppa where wife and election agent of the Respondent were present; and the nomination papers of both the candidates were found to be in order. It is stated that the Respondent left Seppa for campaigning in the morning on 25.03.2014 at Rilloh village and on 26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to 30.03.2014. In the evening of 26.03.2014, the Respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the Respondent from the constituency and consequential election of the Appellant from the said constituency unopposed. Thereafter, the Respondent lodged complaint with the Seppa Police Station which was registered as FIR No. 19/2014 Under Sections 468 and 469 Indian Penal Code.
3. As the factual score further depicts, the Respondent filed Election Petition before the High Court challenging the legality and validity of the Appellant's election, specifically pleading that the provisions of Section 37 of the Act had not been complied with inasmuch as Form V, the prescribed format for withdrawal of candidature, had neither been delivered by the Respondent nor his proposer nor his election agent. It was further pleaded that acceptance of Respondent's withdrawal had materially affected the election and prayed for declaration for setting aside the election.
4. The Appellant filed his written statement contending, inter alia, that the Respondent was himself instrumental in withdrawing the candidature; that Returning Officer had found Respondent's signature in the withdrawal Form to be genuine; that the person who had submitted the withdrawal from was well known to the Respondent and this fact had been suppressed in the election petition; that to assuage his supporters after their violent reaction, Respondent had filed the election petition; that plea of statutory violation alone would not be enough to set aside an election result; that the allegation by the Respondent that his signature was forged is an afterthought; that the withdrawal of his nomination papers by the Respondent from contesting the election from the said constituency was an act of his own accord and volition; and that the unopposed election of the Appellant was as per due procedure of law; and that the election, being totally devoid of merit, deserved dismissal.
5. The High Court, after considering the pleadings, framed the following issues:
1. Whether the Petitioner gave any notice in writing in terms of Section 37(1) of the Act, read with Rule 9(1) of the Conduct of Election Rules, 1961 for withdrawal of his candidature from the constituency and delivered the same in a statutorily prescribed manner either personally or through his proposer or election agent so authorised in this behalf in writing by the Petitioner?
2. Whether the person who submitted the withdrawal 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 acted in compliance of the requirements of Section 37(3) of the Act and Rule 9 of the Conduct of Election Rules, 1961 while accepting the notice of withdrawal of Petitioner's candidature from the constituency?
4. Whether the Returning Officer of the constituency acted legally in declaring the result of election to Arunachal Pradesh State Legislative Assembly from the constituency Under Section (sic Rule) 53(2) of the Conduct of Election Rules, 1961 and declaring Respondent duly elected uncontested from the said constituency?
5. Whether election of the Respondent to the Arunachal Pradesh State Legislative Assembly from the constituency is liable to be held void?
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 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 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 100(1)(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 took note of the rivalised submissions raised at the Bar and noted the decisions relied upon by the election Petitioner in support of the stand, that is, Durai Muthuswami v. N. Nachiappan and Ors. (1973) 2 SCC 45, State (Delhi Administration) v. Pali Ram (1979) 2 SCC 158, Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704, A. Neelalohithadasan Nadar v. George Mascrene and Ors. (1994) Supp (2) SCC 619, Virender Nath Gautam v. Satpal Singh and Ors. (2007) 3 SCC 617, Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541, Jitu Patnaik v. Sanatan Mohakud and Ors. (2012) 4 SCC 194, Maria Margarida Sequeira Fernandes and Ors. v. Erasmo Jack De Sequeira (dead) through L.Rs. (2012) 5 SCC 370, Her Highness Maharani Vijaya Raje Scindhia AIR 1959 (MP) 109, Jagan Nath v. Jaswant Singh and Ors. AIR 1954 SC 210, Santokh Singh v. Mohan Singh AIR 1994 (P&H) 258.
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 return 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 100 of the Act, highlighted that in the absence of any pleading with regard to corrupt practices, the election of the elected candidate could not be unsettled. He had drawn support from the authority in Mangani Lal Mandal v. Bishnu Deo Bhandari (2012) 3 SCC 314. Additionally, it was urged by him that it is 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 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 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 warranted dismissal. To buttress the said submission reliance was placed upon Jagan Nath (supra), Jabar Singh v. Genda lal (1964) 6 SCR 54, South Indian Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum and Anr. AIR 1964 SC 207, Khaji Khanavar Khadirkhan v. Siddavanballi Nijalingappa and Anr. (1969) 1 SCC 636, Samant N. Balkrishna v. George Fernandez and Ors. (1969) 3 SCC 238, Smt. Bhagwan Karu v. Shri Maharaj Krishan Sharma and Ors. (1973) 4 SCC 46, Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210, Narender Singh v. Mala Ram and Anr. (1999) 8 SCC 198, Jeet Mohinder Singh v. Harminder Singh Jassi (1999) 9 SCC 386, K.T. Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1, T.A. Ahammed Kabeer v. A.A. Azeez and Ors. (2003) 5 SCC 650, Ram Sukh (supra), Mangani Lal Mandal (supra) and Rajpal Sarma v. State of U.P. (2014) 105 ALR 140.
10. The learned...
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