KAMENG DOLO versus ATUMWELLY
[2017] 5 S.C.R. 114, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Ratio
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 sub-
section (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-A-
H 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-E-
H; 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
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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
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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 
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[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 
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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.] 
125 
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. Cross-
examination of this witness was declined by the petitioner. 
A 
B 
c 
34. Ext.9 is the authority letter dated 26.03.14 whereby, petitioner 
D 
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 
F 
G 
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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126 
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SUPREME COURT REPORTS 
[2017] 5 S.C.R. 
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 sub-
section (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.] 
127 
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 
B 
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 
E 
F 
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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A 
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 
B 
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 
C 
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 
D 
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:-
E 
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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 
H 
24 AIR I 936 PC 253
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
129 
rule of universal application can be laid down. However, it is 
A 
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. 
H 
"(2003) 4 sec 399
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
131 
18. Section 37 of the Act is the provision that calls for interpretation 
A 
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. 
c 
(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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F 
20. Thus, the candidate has to comply with the Clause (c) of 
Section 30 and the notice has to be in writing, it shall contain such 
particulars as may be prescribed and it shall be subscribed to him and 
delivered as stipulated under Clause ( c) of Section 30 to the Returning 
G 
Officer. The said notice, as sub-section(!) of Section 37 lays down, is to 
be delivered to the Returning Officer either by the candidate in person 
or by his proposer or election agent who has been authorised in this 
behalfin writing by such candidate. Be it noted, sub-section (2) of Section 
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37 prescribes that no person who has given a notice of withdrawal of his 
candidature under sub-section ( l) shall be allowed to cancel the notice. 
That reflects the sanctity of withdrawal by a candidate. Sub-section (3) 
of Section 37, as is manifest, makes it obligatory on the part of the 
Returning Officer to be satisfied as to the genuineness of the notice of 
B 
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. 
21. In the case at hand, from the evidence of the Returning Officer, 
it is explicit that withdrawal of the candidature was not made by the 
candidate or by his proposer or his election agent. The evidence of the 
c Returning Officer reads as follows. 
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"26.03.2014 was the last date for withdrawal for nomination. On 
that date around 1100 hrs., I received a duly filled Form No. 5 i.e., 
a notice for withdrawal through fax from Sri Atum Welly, BJP 
candidate for 12 Pakke Kesang Legislative Assembly 
Constituency, but I did not take cognizance of the same. 
Thereafter, I received a telephonic call from Dr. Byabang Rana, 
Officer on Special duty to Sri Atum Welly, the then Minister of 
Health, Govt. of Arunachal Pradesh, requesting me to a:ccept the 
withdrawal ofnomination of Sri Atum Wdly, as according to Dr. 
Byabang Rana the said Form No. 5 was signed by Sri A tum Welly 
in the presence of Dr. Byabang
Rana." 
xxxxxxxx 
"Since I know Sri Sanjeev Tana personally, I also know that during 
the relevant point of time i.e. 2014 Arunachal Pradesh Legislative 
Assembly election, Sri Tana Sanjeev was neither a proposer nor 
the election agent of Sri Atum Welly for 12 Pakke Kesang (ST) 
Legislative Assembly Constituency. Under the law, it is only either 
the candidate personally, the proposer or election agent duly 
authorised by candidate are competent and eligible to file Form 
No. 5 for withdrawal of nomination of a candidate." 
22. From the aforesaid evidence, it is quite luminous that neither 
the candidate delivered the notice of withdrawal nor his proposer nor his 
election agent and there was no authorisation for the same to the proposer 
or election agent. To elucidate, ifthe candidate gives the notice himself 
H 
ascribing to it, there can be no confusion. The only thing that the Returning
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
133 
Officer has to see is to verify the identity of the candidate and genuineness A 
of the signature. The other two categories who can issue the notice has 
to satisfy certain conditions precedent. The notice has to be in writing, 
the proposer or the election agent must be in that capacity and they must 
have been authorised in this behalf in writing by such candidate. In the 
present case, there has been total non-compliance of Section 3 7 of the 
Act. 
23. The seminal question that emanates for consideration is what 
is the effect of acceptance of such withdrawal of the candidature that is 
B 
in total non-compliance with the law. Mr. Sorabjee argued that though 
withdrawal of the candidature is treated to be non-compliant with the 
C 
statutory provisions, yet it is obligatory on the part of the elected candidate 
to satisfy the court or the election tribunal that it has materially affected 
the election. The said argument was carried forward by Mr. Kapur on 
the next date. Emphasis has been laid on Section l 00 of the Act. Section 
l 00 of the Act deals with the grounds for declaring election to be void. 
For apposite appreciation, the provision is reproduced in entirety: 
D 
"l 00. Grounds for declaring election to be void.-
(!) Subject to the provisions of sub-section (2) ifthe High Court is 
of opinion-
(a) that on the date of his election a returned candidate was not 
E 
qualified, or was disqualified, to be chosen to
fill the seat under 
the Constitution or this Act or the Government ofUnion Territories 
Act, 1963 (20 of1963)]; or 
(b) that any corrupt practice has been committed by a returned 
candidate or his election agent or by any other person with the 
consent of a returned candidate or his election agent; or 
(c) that any nomination has been improperly rejected; or 
( d) that the result of the election, in so far as it concerns a returned 
candidate, has been materially affected-
. (i) by the improper acceptance or any nomination, or 
(ii) by any corrupt practice committed in the interests of the 
returned candidate by an agent other than his election agent, 
or 
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[2017) 5 S.C.R. 
(iii) by the improper reception, refusal or rejection ofany vote or 
the reception of any vote which is void, or 
(iv) by any non-compliance with the provisions of the Constitution 
or of this Act or of any rules or orders made under this Act, 
the High Court shall declare the election of the returned candidate 
to be void. 
(2) If in the opinion of the High Court, a returned candidate has 
been guilty by an agent other than his election agent, of any corrupt 
practice but the High Court is satisfied-
( a) that no such corrupt practice was committed at the election 
by the candidate or his election agent, and every such corrupt 
practice was committed contrary to the orders, and without 
the consent, of the candidate or his election agent; 
( c) that the candidate and his election agent took all reasonable 
means for preventing the commission of corrupt practices at 
the election; and 
(d) that in all other respects the election was free from any corrupt 
practice on the part of the candidate or any of his agents, 
then the High Court may decide that the election of the returned 
candidate is not void." 
24. It is submitted by the learned counsel for the appellant that 
Section I 00( I)( d) is inextricably connected with the concept and election 
being materially affected and unless that is proven or established, an 
• election cannot be set aside. In this regard, learned counsel for the 
appeliant has commended
us to certain authorities and we shall refer to 
the same. 
25. In Mangani Lal Manda/ (supra), this Court was dealing with 
an appeal arising from the judgment passed by the High Court of Patna 
where the election of the appellant was set aside. To set aside the 
G election, the High Court heavily placed reliance upon two decisions of 
this Court, namely, Unio11 of l11dia v. Association for Democratic 
Reforms26 and People's Union for Civil Liberties (supra) and held that 
suppression of facts by the returned candidate with regard to the assets 
and liability of his first wife and dependent children born in that wedlock 
H 
2' c2002i s sec 294
KAMENG DOLO v.·ATUM WELLY [DIPAK MISRA, J.] 
135 
was breach of Article l 9(l)(a) and for such breach and non-compliance A 
the candidate who had not complied with and breached right to information 
of electors and on the election to suffer consequence of such non-
compliance and breach and accordingly set aside the election. This 
Court, after reference to Section 1 OO(d)(iv) came to hold as follows:-
"! 0. Areading of the above provision with Section 83 of the 1951 
Act leaves no manner of doubt that where a returned candidate is 
alleged to be guilty of non-compliance with the provisions'ofthe 
Constitution or the 1951 Act or any rules or orders made thereunder 
and his election is sought to be declared void on such ground, it is 
essential for the election petitioner to aver by pleading material 
facts that the result of the election insofar as it concerned the 
returned candidate has been materially affected by such breach 
B 
c 
or non-observance. If the election petition goes to trial then the 
election petitioner has also to prove the charge of breach or non-
compliance as well as establish that the result of the election has 
been materially affected. It is only on the basis of such pleading 
D 
and proof that the Court may be in a position to form opinion and 
record a finding that breach or non-compliance with the provisions 
of the Constitution or the 1951 Act or any rules or orders made 
thereunder has materially affected the result of the election before 
the
election of the returned candidate could be declared void. 
E 
11. A mere non-compliance or breach of the Constitution or the 
statutory provisions noticed above, by itself, does not result in 
invalidating the election of a returned candidate under Section 
lOO(l)(d)(iv). The sine qua non for declaring the election of a 
returned candidate to be void on the ground under clause (iv) of 
Section lOO(l)(d) is further proof of the fact that such breach or 
F 
non-observance has resulted in materially affecting the result of 
the returned candidate. In other words, the violation or breach or 
non-observation or non-compliance with the provisions of the 
Constitution or the 1951 Act or the rules or the orders made 
thereunder, by itself, does not render the election of a returned 
G 
candidate void Section lOO(l)(d)(iv). For the election petitioner 
to succeed on such ground viz. Section IOO(l)(d)(iv), he has not 
only to plead and prove the ground but also that the result of the 
election insofar as it concerned the returned candidate has been 
materially affected. The view that we have taken finds support 
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from the three decisions of this Court in: (1) Jabar Singh v. Genda 
La/27; (2) L.R. Shivaramagowda v. TM Chandrashekar28; and 
(3) Uma Ballav Rath v. Maheshwar Mohanty29." 
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. 
27. The analysis of the aforesaid dictum makes it graphically clear 
that 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. In this context, it is frnitful 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 
respo!!dent 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 of334 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 
27 AIR 1964 SC 1200 
" < 1999) 1 sec 666 
"< 1999) 3 sec 357 
Jo (2002J 1 sec 160
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
137 
in proving that the election of the respondent was materially affected by 
A 
improper acceptance of the nomination papers ofNaresh Yadav. Dealing 
with the same, the Court held: 
"9. A few decisions were cited at the Bar and it will be useful to 
make a review thereof. In Vashist Narain Sharma v. Dev 
Chandra31 the candidate whose nomination was improperly 
accepted had secured 1983 votes while the margin of votes 
between the winning candidate and the next-below candidate was 
1972. This Court held that having been called upon to record a 
finding that "the result of the election has been materially 
affected", the result should not be judged by the mere increase or 
decrease in the total number of votes secured by the returned 
candidate but by proof of the fact that wasted votes would have 
been so distributed between the contesting candidates as would 
have brought about the defeat of the returned candidate. The 
Court emphasized the need of proof by affirmative evidence and 
discarded the test of a mere possibility to say that the result could 
have been different in all probability. The question is one of fact 
and has to be proved by positive evidence. The Court obst--rved 
that the improper acceptance of a nomination paper may have, in 
the result, operated harshly upon the petitioner on account of his 
failure to adduce the requisite positive evidence but the Court is 
not concerned with the inconvenience resulting
from the operation 
of the law. The Court termed it "impossible" to accept the ipse 
dixit of witnesses coming from one side or the other to say that all 
or some of the votes would have gone to one or the other on some 
supposed or imaginary ground. In Samant N. Balkrishna v. 
George Fernandez this Court recognized that proof of material 
effect on the result of the election insofar as a returned candidate 
is concerned on account of a miscarriage occasioned by improper 
acceptance of nomination paper at an election may be a simple 
impossibility. The Judge has to enquire how the election would 
have gone if the miscarriage would not have happened and that 
enquiry would result virtually placing the election not in the hands 
of the constituency but in the hands of the Election Judge. The 
Court held that neither could the matter be considered on possibility 
nor was there any room for a reasonable judicial guess. The law 
"AIR 1954 SC 513 
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requires proof; how far that proof should go or what it should 
contain is not provided by the legislature; but the insistence on 
proof cannot be dispensed with. In Shiv Charan Singh v. 
Chandra Bhan Singh 32 this Court pointed out that proof of 
material effect on the result of the election in a case ofimproper 
acceptance of nomination paper involved the harsh and difficult 
burden of proof being discharged by the election petitioner adducing 
evidence to show the manner in which the wasted ballots would 
have been distributed amongst the remaining validly nominated 
candidates and in the absence of positive proof in that regard the 
election must be allowed to stand and the court should not interfere 
C 
with the election on speculation and conjectures." 
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28. Thereafter, the Court referred to Tek Chand v. Dile Ram33 
wherein it has been held that: 
" .. the mere fact that the number of votes secured by a candidate 
whose nomination paper was improperly accepted, was greater 
(more than three times in that case) than the margin of the 
difference between the votes secured by the returned candidate 
and the candidate securing the next higher number of votes, was 
not by itself conclusive proof of material effect on the election of 
the returned candidate." 
29. Thereafter, the Court summed up the law as regards the result 
of ele~tion having been materially affected in case of improper acceptance 
of
nomination papers. They are as follows:-
"2. Merely because the wasted votes are more than the dirference 
of votes secured by the returned candidate and the candidate 
securing the next highest number of votes, an inference as to the 
result of the election having been materially affected cannot 
necessarily be drawn. The issue is one of fact and the onus of 
proving it lies upon the petitioner. 
3. The burden of proving such material effect has to be discharged 
by the election petitioner by adducing positive, satisfactory and 
cogent evidence. 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 
"(1988) 2 sec 12 
" c2001) 3 sec 290
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
139 
the election on the ground of improper acceptance of a nomination A 
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. 
4. The burden of proof placed on the election petitioner is very 
B 
strict and so difficult to discharge as nearing almost an impossibility. 
There is no room for any guesswork, speculation, surmises or 
conjectures i.e. acting on a mere possibility. It will not suffice 
mP-rely to say that all or the majority of wasted votes might have 
gone to the next highest candidate. The law requires proof. How 
far that proof should go or what it should contain is not provided 
C 
by the legislature. 
5. The casting of votes at an election depends upon a variet)' of 
factors and it is not possible for anyone to predicate how many or 
which proportion of the votes will go to one or the other of the 
candidates. It is not permissible to accept the "ipse dixit" of D 
witnesses coming from one side or the other to say that all or 
some of the votes would have gone to one or the other on 1>ome 
supposed or imaginary ground." 
30. After such summation, the Court analysed the materials on 
record and concurred with the view of the High Court that the appe!Iant, 
E 
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 ofShri Naresh Yadav. 
31. To sustain the conclusion of the High Court, the Court analysed 
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the evidence and recorded the following finding:-
"It needs hardly any evidence to hold, as one can safely assume 
that the appellant must have openly and widely propagated herself 
as INLD candidate and made it known to the constituency that 
she was the official candidate sponsored by INLD and Shri N aresh 
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Yadav was not an INLD-sponsored candidate and was a defector. 
Therefore, it is difficult to subscribe to the suggested probability 
that any voter committed to INLD ideology would have still voted 
for Shri Naresh Yadav merely because he had for a period of two 
years before defection remained associated with INLD." 
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32. Learned senior counsel for the appellant has drawn our attention 
to the authority in Rajendra Kumar Meshram v. Vanshmani Prasad 
Verma34• In the said case, the two-Judge Bench while dealing with the 
violation under Section l 00( I)( d) opined:-
" 10. Under Section lOO(l)(d), an election is liable to be declared 
void on the ground of improper acceptance of a nomination if 
such improper acceptance of the nomination has materially 
affected the result of the election. This is in distinction to what is 
. contained in Section IOO(l)(c) i.e. improper rejection of a 
nomination which itself is a sufficient ground for invalidating the 
election without any further requirement of proof of material effect 
of such rejection on the result of the election. The above distinction 
must be kept in mind. Proceeding on the said basis, we find that 
the High Court did not endeavour to go into the further question 
that would be required to be determined even if it is assumed that 
the appellant returned candidate had not filed the electoral roll or 
a certified copy thereof and, therefore, had not complied with the 
mandatory provisions of Section 33(5) of the 1951 Act. 
11. In other words, before setting aside the election on the above 
ground, the High Court ought to have catTied out a further exercise, 
namely, to find out whether the improper acceptance of the 
nomination had materially affected the result of the
electfon. This 
. has not been done notwithstanding Issue 6 framed which is 
specifically to the above effect. The High Court having failed to 
determine the said issue i.e. Issue 6, naturally, it was not empowered 
to declare the election of the appellant returned candidate as void 
even if we are to assume that the acceptance of the nomination 
of the returned candidate was improper." 
33. As we find from the aforesaid two paragraphs, the Court has 
drawn distinction between improper acceptance of a nomination for such 
improper acceptance of the nomination has to materially affect the result 
of the election and the case of improper rejection ofa nomination which 
G 
itself is .a sufficient ground for invalidating the election without any further 
requirement of proofor material effect of such rejection on the result of 
the election. The first one comes under Section lOO(l)(d), the second 
one comes under Section lOO(l)(c). 
"(2016) 10 sec 11s 
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KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
141 
34. Relying on the said decision, it is contended by the learned A 
counsel for the appellant that whether the proof of material effect on the 
result of the election is required when there is illegal acceptance of a 
nomination paper. In this context, placing reliance on the decision of 
Santosh Yadav (supra), he would contend that there is a necessity for 
proof by affirmative evidence that the result would have been different 
B 
in all probability and the question being one of a fact, has to be proved by 
positive evidence. 
35. At this stage, we are required to come back to Section 37 of 
the Act. It is imperative to note here that sub-Section (3) of Section 37 
was substituted by Act 40 of 1981. The said provision requires the 
satisfaction of the returning officer as to the genuineness of the notice 
of withdrawal and the identity of the person delivering it. The words 
have their own significance. The language employed in Section 37, as 
submitted by Mr. Sundaram, learned senior counsel for the respondent, 
cannot be diluted. Learned senior counsel would submit that ifthere is 
c 
no election, the question of materially affecting the election does not 
D 
arise. It is urged by him that in such a situation, especially in this case, 
when there are two candidates one from INC who is an elected candidate 
by default and other from another national party, i.e., BJP, the issue of 
withdrawal becomes extremely significant.
36. In Rattan Anmol Singh & Ram Prakash v. Ch. Atma Ram 
and others35 , while dealing with the satisfaction of the returning officer, 
the Court held: 
" ... when the law requires the satisfaction of a particular officer 
at a particular time his satisfaction can be dispensed with 
altogether. In our opinion, this provision is as necessary and as 
substantial as attestation in the cases of a will or a mortgage and 
is on the same footing as the "subscribing" required in the c&se of 
the candidate himself. If there is no signature and no mark the 
form would have to be rejected and their absence could not be 
dismissed as technical and unsubstantial. The "satisfaction" of 
the Returning Officer which the rules require is not, in our opinion, 
any the less important and imperative." 
37. In this regard, the decision of the Constitution Bench in 
Surendra Nath Khosla v. S. Dalip Singh36, is of immense significance. 
"AIR 1954 SC 510 
"AIR 1957 SC 242 
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In the said case, the returning officer accepted all the nomination papers 
except that of one Buta Singh who did not take any further steps though 
his nomination was rejected. One Dalip Singh, the first respondent filed 
an election petition. The question was referred to the Constitution Bench 
to determine whether the burden of proof is on the person who seeks to 
challenge the election and that he must prove that the result of the election 
has been materially affected by the improper rejection of the nomination 
paper. Thereafter, the larger Bench, after referring to earlier decisions 
held that: 
"A Division Bench of this Court has laid down in the case of 
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram37 at 
C 
p. 842 that the improper rejection of a nomination paper "affects 
the whole election". A similar view was taken in the case of 
Karnail Singh v. Election Tribunal, Hissar38, by a Bench of 
five Judges of this Court. But, as pointed out on behalf of the 
appellants, in neither of those two cases the relevant provisions of 
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the Act have been discussed. It appears that though the words of 
the section are in general terms with equal application to the case 
of improper acceptance, as also of improper rejection of a 
nomination paper, case law has made a distinction betv:een the 
two classes of cases. So far as the latter class of cases is 
concerned, it may be pointed out that almost all the Election 
E
Tribunals in the country have consistently taken the view that 
there is a presumption in the case of improper rejection of a 
nomination paper that it has materially affected the result of the 
election. Apart from the practical difficulty, almost the impossibility, 
of demonstrating that the electors would have cast their votes in a 
F 
particular way, that is to say, that a substantial number of them 
would have cast their votes in favour of the rejected candidate, 
the fact that one of several candidates for an election had been 
kept out of the arena is by itself a very material consicieration. 
Cases can easily be imagined where the most desirable candidates 
from the point of view of electors and the most formidable 
G 
candidate from the point of view of the other candidates may 
have been wrongly kept out from seeking election. By keeping 
out such a desirable candidate, the officer rejecting the nomination 
paper may have prevented the electors from voting for the best 
37 1954SCR817 
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38 I 0 Elec. Law Reports 189
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
143 
candidate available. On the other hand, in the case of an improper A 
acceptance of a nomination paper, proof may easily be forthcoming 
to demonstrate that the coming into the arena of an additional 
candidate has not had any effect on the election of the best 
candidate in the field. The conjecture therefore is permissible that 
the legislature realising the difference between the two classes of B 
cases has given legislative sanction to the view by amending Section 
I 00 by the Representation of the People (Second Amendment) 
Act, 27 of 1956, and by going to the length of providing that an 
improper rejection ofany nomination paper is conclusive proof of 
the election being void. For the reasons aforesaid, in our opinion, 
the majority decision on the fourth issue is also correct." 
C 
[emphasis supplied] 
38. In this regard, learned counsel for the respondent has drawn 
our attention to the Constitution Bench decision in Vishwanatha Reddy 
v. Konappa Rudrappa Nadgouda39• In the said case, there were only 
twci contesting candidates and one of them was under a statutory 
D 
disqualification. The Court held that Section 53 of the Act renders the 
poll necessary if there are more candidates contesting the election than 
the number of seats contested. The Court distinguished the rule enunciated 
by the courts in the United Kingdom and stated that same cannot be 
extendect to the trial of disputes under our election law, for
it i3 not 
E 
consistent with our Indian Statute Law and in any case the conditions 
prevailing in our country do not justify the application of the rule. Analysing 
further, where there are only two contesting candidates and one suffers 
a statutory disqualification, the Court held: 
" .. When there are only two contesting candidates, and one of F 
them is under a statutory disqualification, votes cast in favour of 
the disqualified candidate may be regarded as thrown away, 
irrespective of whether the voters who voted for him were aware 
of the disqualification. This is not to say that where there are 
more than two candidates in the field for a single seat, and one 
alone is disqualified, on proof of disqualification all the votes cast 
in his favour will be discarded and the candidate securing the next 
highest number of votes will be declared elected. In such a case, 
question of notice to the voters may assume significance, for the 
"AIR 1969 SC 604 
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voters may not, if aware of the disqualification have voted for the 
disqualified candidate. 
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And again: 
"13. The view that we are taking is consistent with the implication 
of Cl. (b) of Section 101. When in an election petition which 
complies with Section 84 of the Act it is found at the hearing that 
some votes were obtained by the returned candidate by corrupt 
practices, the Court is bound to declare the petitioner or another 
candidate elected if, but for the votes obtained by the returned 
candidate by corrupt practice, such candidate would have obtained 
a majority of votes. In case falling under Clause (b) of Section 
101 the Act requires merely proof of corrupt practice, and obtaining 
votes by corrupt practice: it does not require proof that the voters 
whose votes are secured by corrupt practice had notice of the 
corrupt practice. If for the application of the rule contained in 
Clause (b) notice to the voters is not a condition precedent, we 
see no reason why it should be insisted upon in all cases under 
Clause (a). The votes obtained by corrupt practice by the :eturned 
candidate, proved to be guilty of corrupt practice, are expressly 
· excluded in the computation of total votes for ascertaining whether 
a majority of votes had been obtained by the defeated candidate 
and no fresh poll is necessary. The same rule should, in our 
judgment. apply when at an election there are only two candidates
and the returned candidate is found to be under a statutory 
disqualification existing at the date of filling of the nomination 
[emphasis added] 
39. The Constitution Bench in Sure11dra Nath Khosla (supra) 
has opined that there is a clear distinction between rejection of nomination 
papers and acceptance of nomination papers. It has stated about the 
path to follow. In Vishwanatha Reddy (supra), the Court has categorically 
laid down the distinct principle where there are two candidatts in the 
G fray. 
. 
40. It is unmistakably noticeable from the above enunciation of 
law that this Court has carved out a separate and distinct principle. Be it 
noted, it has been clearly held that when there is disqualification existing 
at the date of filing of nomination paper, and it has been found to be 
H correct, no fresh poll is necessary.
KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 
145 
4 I . The present case has its own distinct characteristics. There 
A 
were only two candidates in the fray, one from the Indian National 
Congres3 and the other from the Bhartiya Janata Party. The election 
petitioner while campaigning came to know that his nomination papers 
were withdrawn. As a prudent man he lodged an FIR. We are really 
not concerned with the initiation of criminal action. We are singularly 
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concerned with the interpretation of Section 3 7 of the Act and the illegal 
acceptance of withdrawal of a candidature by the returning officer. As 
the provision would reflect, the legislature has provided number of 
safeguards before exercising the authority for acceptance of withdrawal 
of a candidate. The language employed in Section 37 of the Act is 
absolutely plain, unambiguous and unequivocal. It only admits of a C 
singular interpretation. It is because the intention of the Parliament is 
that due care and caution has to be taken in letter and spirit so that no 
confusion is created. The issue of alert and careful exercise gains mor1 
significance when there are two candidates and that too from twq 
National Parties. From this, it may not be understood, there will be any 
D 
difference if there are two candidates, one from a National Party and 
the other from a regional party. The emphasis is on "two candidates" 
because if one's withdrawal is allowed in complete violation of the 
statutory provision, the
other candidate gets automatically declared 
elected, for there is no election, no contest. 
42. When there is no contest, and a desirable candidate for some 
reason is kept out of fray, the principle laid down in Vishwanatha Reddy 
(supra) has to be made applicable. We are disposed to think so, when in 
transgression of the statutory provision, a candidate's candidatl're is 
allowed to be withdrawn, it will tantamount to sacrilege of democracy. 
That is why, the mandate 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 demoi::racy and corrode its primary roots. The principle stated in 
Krishnamoorthy v. Sivakumart0, are to the effect that the sanctity of 
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the electoral process imperatively commands that each candidate owes 
and is under an obligation that a fair election is held and freedom in the 
G 
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 weightage, are never to be eroded. 
"(201 s) 3 sec 467 
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A 
The responsibility of a returning officer being statutorily significant, he 
has to keep himself alive to every facet and not act in a manner that will 
create a dent or hollowness in the election process. 
B 
\
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. 
Kalpana K. Tripathy 
Appeal Jismissod.