Kameng Dolo vs Atum Welly

2. The facts necessary for adjudication of the present appeal are that the appellant and the respondent filed their respective nomination papers from the earlier mentioned constituency. No other candidate had filed nomination papers in respect of the said constituency. Respondent’s younger brother, Sri Utung Welly was the election agent of the respondent, who was also a registered voter of the constituency. Nomination papers of both the candidates were taken up for scrutiny on 24.03.2014 in the office of the Returning Officer at Seppa where wife and election agent of the respondent were present; and the nomination papers of both the candidates were found to be in order. It is stated that the respondent left Seppa for campaigning in the morning on 25.03.2014 at Rilloh village and on 26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to 30.03.2014. In the evening of 26.03.2014, the respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the respondent from the constituency and consequential election of the appellant from the said constituency unopposed. Thereafter, the respondent lodged complaint with the Seppa Police Station which was registered as FIR No. 19/2014 under Sections 468 and 469 IPC.

27. The analysis of the aforesaid dictum makes it graphically clear that to sustain the ground as stipulated under Section 100(1)(d)(iv), the election petitioner is required not only to plead and prove the ground but also to establish the result of the election of the returned candidate concerned has been materially affected. In this context, it is fruitful to refer to the law enunciated in Santosh Yadav v. Narender Singh[30]. In the said case, there were 17 candidates including the appellant and the respondent who remained in the fray of contest in the constituency in question. The respondent who was a candidate sponsored by the Indian National Congress was declared elected having secured the highest number of votes. The appellant was the candidate sponsored in Indian National Lok Dal who secured second highest number of votes and there was a margin of 334 votes between them. In the election petition filed by the appellant before the High Court, one of the grounds taken in the election petition was that nomination of Narender Singh was improperly accepted as he had been convicted under Section 30B and Section 498A IPC and was sentenced to undergo rigorous imprisonment for seven years and one year respectively apart from fine. Be it noted, the High Court, in appeal, had suspended execution of the sentence of imprisonment. The learned designated Election Judge of the High Court refused to set aside the election of the respondent as, in his opinion, the election petitioner had failed in discharging the onus of proof that the result of the election insofar as it concerns the respondent, the returned candidate, had been materially affected. This Court posed the question whether the High Court was right in forming the opinion that on established facts and circumstances of the case, the appellant had failed in proving that the election of the respondent was materially affected by improper acceptance of the nomination papers of Naresh Yadav. Dealing with the same, the Court held:

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 100(1)(d)(iv) of the Act. Being of this view, it allowed the election petition.

26. After so holding, the Court opined that in the entire election petition there was no pleading at all that suppression of the information by the returned candidate in the affidavit filed along with nomination papers with regard to first wife and dependent children from her and non- disclosure of that assets and liabilities materially affected the result of the election.

If the petitioner is unable to adduce such evidence the burden is not discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but the court is not concerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof.

30. After such summation, the Court analysed the materials on record and concurred with the view of the High Court that the appellant, election petitioner, had failed in discharging the heavy burden which lay on her of proving that the result of election, insofar as it concerns the returned candidate, had been materially affected by improper acceptance of the nomination of Shri Naresh Yadav.

43. In view of the aforesaid, there is no merit in this appeal and the same stands dismissed. There shall be no order as to costs.