Non-submission of Form A to the Chief Electoral Officer did not invalidate the election where Forms A and B reached the Returning Officer in time. The court found substantial compliance and inadequate pleading of material effect on the result. It dismissed the election petition without costs and closed the connected applications.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 5TH DAY OF JANUARY 2018 THE HON'BLE MR. JUSTICE P.N.PRAKASH Election Petition No. 18 of 2016 and O.A NOS. 42, 43 & 74 OF 2017 Elp.No.18 of 2016 P.Angalane, No.35, New Colony, Sellipattu and Post, Puducherry 605 501. ... Petitioner -VS1.B.Kobiga, No.14, Water Tank Street Thiruvandarkoil (Periyapet), Puducherry 605 102. 2.The Returning Officer-I, 2-Thirubhuvanai Assembly Constituency (S.C.) Second Floor of Revenue Complex, O/o.The Deputy Collector (Revenue) South, Villianur, Puducherry 605 110. 3.The Chief Electoral Officer, O/o.The Chief Electoral Officer Puducherry, Villianur Main Road, Lawsthottam, Reddiarpalayam, Puducherry 605 010 4.The Chief Election Commissioner, Election Commission of india, Nirvachan Sadan, Ashoka Road, New Delhi 110 001. 5.L.Kalivarathan, No.10, Vaikkal Street, D.B.G.Nagar, Kalitheerthalkuppam, Madhagadipet Post, Puducherry 605 107.
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Pidarikuppampet, Thirubhuvanani, Pondicherry 605 102.
7.Sundaramoorthy, No.21, T.V.Center Street, Sorappattu Post, Puducherry 605 501.
8.Peru.Pandiyan, No.118, A.K.Nagar, North Street, Kalitheerthatlkuppam, Madhagadipet post, Puducherry – 605 107. 9.G.Boomilingam, No.2, Pallarpalli Street, Suthukenipet, Puducherry 605 502.
10.E.Ananthavel, No.21, Mariamman Koil Street, Vinayagampet, Sorapattu post, Puducherry.
11.E.Egambaram, No.29, First Cross, Sungothiamman Koil Street, Orleanpet, Puducherry 605 005. 12.S.T.Paramasivam Alias Cale, No.8, M.G.R.Nagar, Pillaiyarkuppam, Thondamanatham post, Puducherry. 13.S.Komala, No.7, Annai Therasa Nagar, 3rd Cross street, Moolakulam, Puducherry. ... Respondents
The Election Petition praying that this Hon'ble Court be pleased to
(a) Declare the election of the 1st respondent as https://hcservices.ecourts.gov.in/hcservices/ returned candidate from 2-Thirubhuvanai Assembly
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Constituency (S.C.), Puducherry at the general election held on 16.05.2016 accepting the nomination papers of the 1st respondent as null and void; and
(b) Declare the petitioner herein as duly elected member of the legislative assembly from 2-Thirubhuvanai Assembly Constituency (S.C.), as he has secured next higher
votes to the 1st respondent/returned candidate as per section 101 of the Representation of People Act, 1951; and
(c)Direct the respondents to pay the cost of this Election Petition.
OA.Nos.42, 43 & 74 of 2017
Puducherry 605 102.
3.L.Kalivarathan,
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No.10, Vaikkal Street, D.B.G.Nagar, Kalitheerthalkuppam, Madhagadipet Post, Puducherry 605 107.
4.M.Sankar @ Vadivelan, No.3, Anganwadi Street, Pidarikuppampet, Thirubhuvanani,
Pondicherry 605 102.
5.Sundaramoorthy,
No.21, T.V.Center Street, Sorappattu Post, Puducherry 605 501.
6.Peru.Pandiyan,
No.118, A.K.Nagar, North Street, Kalitheerthatlkuppam, Madhagadipet post,
Puducherry – 605 107.
7.G.Boomilingam,
No.2, Pallarpalli Street,
Suthukenipet,
Puducherry 605 502.
8.E.Ananthavel,
No.21, Mariamman Koil Street,
Vinayagampet,
Sorapattu post, Puducherry.
9.E.Egambaram,
No.29, First Cross,
Sungothiamman Koil Street, Orleanpet,
Puducherry 605 005.
10.S.T.Paramasivam Alias Cale,
No.8, M.G.R.Nagar, Pillaiyarkuppam, Thondamanatham post, Puducherry.
11.S.Komala,
No.7, Annai Therasa Nagar, 3rd Cross street,
Moolakulam, Puducherry. ... Respondents/Respondents https://hcservices.ecourts.gov.in/hcservices/
This Original Application No.42 of 2017 praying that
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this Hon'ble Court be pleased to strike off the 2nd Respondent as Respondent in the Election Petition No.18 of 2016.
This Original Application No.43 of 2017 praying that
this Hon'ble Court be pleased to strike off the 3rd Respondent as Respondent in the Election Petition No.18 of 2016.
This Original Application No.74 of 2017 praying that
this Hon'ble Court be pleased to strike off the 4th Respondent as Respondent in the Election Petition No.18 of 2016.
The above Election Petition and Original Application
having been heard on 11.12.2017 before this Court in the
presence of Mr.S.Sathiaseelan, advocate for the Election Petitioner/1st Respondent, Mr.G.Masilamani, Senior Counsel for Mr.T.Sathiyamoorthy, Advocate for the 1st respondent/2nd
respondent and Mr.Niranjan Rajagopalan, advocate for M/s.G.R.Associates, advocates for the respondents 2 to
4/applicants 1 to 3 on OA.Nos.42, 43 & 74 of 2017 herein;
and upon reading the petition, affidavit and Reply affidavit of P.Angalane and counter affidavit of B.Kobiga filed herein and Judges summon and affidavit of Dr.V.Candavelou, filed herein and the common counter
Affidavit of P.Angalane filed in OA.Nos.42, 43 & 74 of 2017
and the common counter affidavit of P.Angalane filed in
OA.Nos.42, 43 & 74 of 2017 and the evidence adduced therein https://hcservices.ecourts.gov.in/hcservices/
and the exhibits marked thereon and this court having stood
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over for consideration till this date and coming on this
day before this court for orders , The Court made the following order:
For the sake of convenience, the petitioner and the first respondent will be referred to as the Election
Petitioner and the Returned Candidate respectively.
2 The dispute that is required to be resolved by
this Tribunal in this election petition lies in a very narrow compass and that is, as to whether the nonsubmission of Form A by the Returned Candidate to the Chief Electoral Officer of the Union Territory of Puducherry
before 3.00 p.m. on the last date of filing of the nomination papers, i.e., 29.04.2016, would invalidate her
election.
3 The facts admitted by both sides are as under: a The general election to the Legislative Assembly
of Puducherry was notified by the Election Commission of
India, under which, the last date for submission of nomination was before 3.00 p.m. on 29.04.2016; scrutiny of nomination was held on 30.04.2016; the last date for withdrawal was 02.05.2016; the date of poll was 16.05.2016
and the counting of votes was on 19.05.2016.
b The Election Petitioner and the Returned
Candidate contested from the Thirubhuvanai Assembly
Constituency. The Election Petitioner contested on the
https://hcservices.ecourts.gov.in/hcservices/ Indian National Congress ticket and was allotted the “Hand”
symbol and the Returned Candidate contested on the All
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India N.R.Congress (for short “the AINRC”) ticket and was allotted the “Jug” symbol. The Indian National Congress and DMK were in alliance. The other candidates included All
India Anna Dravida Munnetra Kazhagam (AIADMK), Pattali Makkal Katchi (PMK), Communist, etc.
c The AINRC is a registered and recognised political party of Puducherry and its President was Mr. N. Rangasamy (and is Mr.N.Rangasamy) and the General Secretary
of the said party was one Mr. V.Bhalan.
d The candidates put up by the AINRC contested in
all the 30 seats to the Puducherry Assembly, of which, Mahe Assembly Constituency is located near Calicut District in Malabar area of Kerala State and Yanam is located in Andhra Pradesh State. The AINRC candidates won in 8 seats and the Government has been formed by the Indian National CongressDMK combine.
e The Returned Candidate filed her nomination
papers with the Returning Officer on 29.04.2016 at 2.53
p.m. along with Form A and Form B.
f The Returning Officer posted the nomination papers of all the candidates in the website of the Election Commission of India as well in the notice board of his Office.
g On 30.04.2016, at the time of scrutiny of the
nomination papers, none including the Election Petitioner,
had raised any objection on the nomination papers filed by https://hcservices.ecourts.gov.in/hcservices/
the Returned Candidate.
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h None objected to the effect that the Returned Candidate was not the official candidate of the AINRC and that she should not be given the “Jug” symbol.
i After the counting of votes, the Election Commission of India announced the results by which the Returned Candidate secured 12,143 votes and the Election Petitioner secured 10,711 votes and hence, the Returned Candidate was declared elected by a margin of 1,432 votes.
j While so, one Mr. Sivaswamy, General Secretary of Puducherry Congress Committee belonging to Indian National Congress submitted an application dated 28.06.2016 (Ex.P.6) under the Right to Information Act, 2005 (for short “the RTI Act”) to the Chief Electoral Officer, Puducherry, seeking the following information:
“We request you to kindly furnish the particulars regarding the date and time of delivery of Form A under the Election Symbols (Reservation and Allotment) Order, 1968 to the Chief Electoral Officer by the candidates of the All India NR Congress during the general elections to Puducherry Legislative Assembly Elections, 2016.”
Puducherry, addressed a reply dated 30.06.2016 (Ex.P.7), (wrongly dated as 30.06.2015), wherein, it is stated as follows:
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l Concededly, the DMK and the Indian National Congress were in alliance in the Puducherry poll and therefore, it is the case of the Election Petitioner that he obtained a copy of the reply letter dated 30.06.2016 from Mr.Sivaswamy and has filed the present election petition contending that the failure of the Returned Candidate to submit Form A to the Chief Electoral Officer
before 3.00 p.m. on 29.04.2016 should result in her election being declared as void.
m Apart from this Election Petition, 4 other
Election Petitions, viz., Election Petition Nos.12, 14, 21
and 22 of 2016 have been preferred by losers on the same
ground, viz ., non-submission of Form A to the Chief
Electoral Officer, against four Returned Candidates of the AINRC and therefore, the Hon'ble Chief Justice directed the
trial of all the five Elections Petitions by this Tribunal. Hence, five election petitions have been preferred before
this Tribunal on the same ground by the defeated candidates. Common order is not passed by this Tribunal in
all the five election petitions, because, if a common order https://hcservices.ecourts.gov.in/hcservices/
is passed, drafting of decree will be difficult for the
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Registry since the name of the parties will change. Therefore, this Tribunal has chosen to pass separate orders so that individual decrees can be drafted by the Registry.
4 The sum and substance of the Election Petitioner's contention finds place in paragraph 7(b), 8 and 9 of the
Election Petition, which read as under:
“7(b) It is submitted that but for the illegal and improper acceptance of the first respondent's nomination paper by the second respondent, the first respondent could not have contested the election at all. As the petitioner herein secured 2nd highest votes in the above election, in the event of the 1st respondent's election declared illegal and null and void, consequently, the petitioner herein should be held as successful candidate in the place of the 1st respondent.
8 The petitioner submits that the first respondent/returned candidate presented his nomination papers without delivering required supportive documents for valid nomination and consequently, had not complied with the Election Symbols (Reservation and Allotment) Order, 1968 and Section 33 and 33B of the Representation of People Act, 1951. As already submitted, last date for submission of Form A and B was 29.04.2016, 03.00 p.m. i.e., the last date for receipt of nominations and not beyond that. Such non-compliance of mandatory requirements under the Representation of the People Act, 1951 and the Election Symbols (Reservation and Allotment) Order, 1968 by the 1st respondent/returned candidate vitiates his nomination itself, consequently, the acceptance of his nomination paper tantamount to illegal and improper acceptance, thereby the result of the election, insofar as 2-Thirubhuvanai Assembly Constituency electing the 1st respondent has been materially affected as stated supra under Section 100 (1)(d)(i) and (iv) of the Representation of the People Act, 1951.
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1968 in that the incomplete nomination paper had been presented by the first respondent and the same was illegally and improperly accepted by the Returning Officer thereby making the resultant election of the respondent/returned candidate being materially affected by the improper acceptance of the nomination by the Returning Officer tantamount to non-compliance with the provisions of the Constitution of this Act, Rules and Orders made under the Act as per Section 100 (1)(d)(i) and (iv) as quoted above.”
denying the allegations and attacking the election petition on several grounds like improper verification, etc. However, the following paragraphs in the reply statement would form the essence of her defence:
“20 The Form A contains both the names of CEO & RO one below the other, which conveys that the candidate's Form A should mention the CEO & RO as mentioned in Form A format. The said format had been simply adopted/copied, the blanks duly filled and submitted to the Returning Officer who is to scrutinize the nomination. Returning Officer is an Officer nominated and authorised to perform the duties relating to election for and on behalf of Chief Electoral Officer of the State/Union Territory. Therefore, the submission of Form A to Returning Officer substantially complies with the requirement.
21 The submission of Form A by this respondent was perfectly in terms of Form A format. The submission of Form A to Returning Officer was informed to CEO through a letter on the same date of scrutiny of nomination papers on 29.04.2016 which appears to have been acknowledged by Chief Electoral Officer on 30.04.2016. The said letter was neither objected to nor rejected by Chief Electoral Officer. The said act of Chief Electoral Officer prove beyond doubt that the procedure for submission of Form A by this respondent has been done properly and https://hcservices.ecourts.gov.in/hcservices/ correctly and in any evenT, the said submission of nomination paper with Form A and Form B was
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in substantial compliance of the form and procedure prescribed. Even assuming without admitting that Form A was not submitted to Chief Electoral Officer, the non submission of Form A to Chief Electoral Officer do not warrant the cancellation / rejection of first respondent's nomination accepted already without objection from anyone including the petitioner and his election agent cannot be called in question, that too, after the election is over and in which this respondent was declared as the returned candidate. The contention of the petitioner is hit by laches.
29 With regard to Para 7(a) and (b), the first respondent submits that S.36(4) of the Representation of People Act, 1951 specifically stipulates that 'nomination cannot be rejected if the defect is not of substantial character'. Rule 4 of the Conduct of Election Rules, 1961, clearly stipulates that any defect as to declaration of symbols in a nomination paper does not amount to a defect of substantial character within the meaning of S.36(4) of the Representation of People Act, 1951. The first respondent had submitted the Form A and Form B to the returning officer within the date and time.
(a) This respondent submits that even assuming without admitting that a copy of Form A had to be submitted to the Chief Electoral Officer individually within the stipulated date and time. The non-compliance to the same is not a ground to invalidate the nomination paper of this respondent, especially when the same was not objected to by other candidates and found to be valid, proper and declared so by the returning officer.”
(b) This respondent submits that the Election Commission of India in its Handbook to the Returning Officer 2014, has specifically stipulated that submission of Form A and Form B to the Returning Officer is substantial compliance for acceptance of nomination and the non-submission of Form A to the Chief Electoral Officer is not a ground for rejection of nomination. The said instruction is as follows:
Candidates:
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8.4.2 (q) . . . N.B. The notices in Form A and Form B signed in original must reach you not later than 3 p.m. on the last date for making nominations. The presentation of these Forms to the Chief Electoral Officer alone will not be treated as compliance with the provisions of para 13 of the Election Symbols (Reservation and Allotment) Order, 1968. It shall be the responsibility of the candidate or the political party concerned to ensure that the documents reach the Returning Officer in time. However, the submission of these Forms to you within the prescribed time will be considered as substantial compliance of the legal requirements, even if the same have not reached the Chief Electoral Officer.” Thus, there is no illegality in the acceptance of the nomination of the first respondent/returned candidate.”
6 The Election Petitioner filed a reply to the reply statement filed by the Returned Candidate. Paragraph 10 of the reply to the reply statement, wherein, the relevant legal provision has been extracted and expanded, requires to be re-produced:
“10 When the statute mandates in affirmative language under Order 13 of the Election Symbols (Reservation & Allotment) Order, 1968, as follows:
For the purpose 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, -
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(d) The name and specimen signature of such authorised person are communicated by the party, in Form A, to the Returning Officer 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
Provided no facsimile signature or signatures by means of rubber stamp etc. of any such bearer or authorised person shall be accepted and no form transmitted by fax shall be accepted.”
It cannot be said that non-submission of Form A is not a substantial defect to reject the nomination papers. Section 36(4) of the Representation of People Act, 1951 only stipulate that nomination paper shall not be rejected on the ground of any defect which is not in substantial character. Therefore, what is defect in substantial character is to be answered in the light of legal mandate under Order 13 of the Election Symbols (Reservation & Allotment) Order, 1968. If there is any defect in submission of nomination paper and such defect does not attract to any of the provisions of the statute governing the election, then, it can be said that such defects are not in substantial character. In the case on hand, the defect in non-submission of Form A to the third respondent, the Chief Electoral Officer is running diametrically contrary to the Order 13 of the Election Symbols (Reservation and Allotment) Order, 1968. Therefore, in the line of the language employed in the above statute, the submission of Form A to the Chief Electoral Officer is mandatory in nature and any noncompliance will be tantamount to defect in substantial character which would in turn attract the rejection of nomination itself.”
on the issues to be framed and framed the following issues
7 On these pleadings, this Tribunal heard both sides
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on 11.08.2017:
"1. Whether the Election Petition, as framed and filed by the petitioner, is maintainable?
4.Whether the petitioner is entitled to a declaration that the election of the 1st respondent as returned candidate from No.2, Thirubhuvanai Assembly Constituency (S.C.), Puducherry at the general election held on 16.05.2016 accepting the nomination papers of the 1st respondent as null and void?
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8 Though the Election Petitioner had cited a long
list of names for being examined on his side, credit should
be given to Mr. Sathiaseelan, learned counsel for the Election Petitioner for giving up irrelevant witnesses and
confining himself to the facts in issue and the relevant
facts by examining Mr.Rudhra Goud (P.W.1), Joint Chief
Electoral Officer, Puducherry and Mr.Rajamanickam, (P.W.2), Returning Officer, Thirubhuvanai Constituency.
9 On the directions of this Tribunal, the learned
Standing Counsel for the Election Commission of India
produced the original files from the office of the Chief
Electoral Officer for the perusal of both sides and
photocopies of relevant records were furnished to both sides.
10 Mr. Rudhra Goud (P.W.1), Joint Chief Electoral
Officer, Puducherry, in his evidence, explained the
significance of Form A and Form B and stated that the
office of the Chief Electoral Officer, Puducherry, did not
receive Form A from the Returned Candidate before 3.00 p.m. on 29.04.2016, but, received a letter dated 29.04.2016 on
30.04.2016 from Mr. V. Bhalan, General Secretary of the AINRC, which is marked as Ex.P.8, giving the official list of the names of the AINRC candidate for each of the 30 constituencies and at the bottom of the list, it is stated
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“The following candidates had already filed the Form A and Form B of our party along with their nomination papers before Returning Officer's.
This is for your kind notice. Yours faithfully, Place: Pondicherry (V. Bhalan) Date: 29/04/2016 General Secretary All India N.R. Congress”
Mr. Rudhra Goud (P.W.1) also stated that Mr. Sivaswamy of
the Indian National Congress had given a letter dated 28.06.2016 (Ex.P.6) seeking information under the RTI Act, in response to which, the office of the Chief Electoral Officer had issued a reply letter dated 30.06.2016 (Ex.P.7) stating that Form A and Form B were not received by the Chief Electoral Officer from the Returned Candidate, but, a letter dated 29.04.2016 was received on 30.04.2016, in which, it is stated that Form A and Form B have been submitted to the Returning Officers of the concerned
Assembly Constituencies within the stipulated time.
11 It may be relevant to extract the following part
of the evidence of Mr.Rudhra Goud (P.W.1).
Q:- Whether as per the format of Form A, Form A is addressed to the Chief Electoral Officer and the Returning Officer?
A: -Yes.
Witness voluntarily states that though in the format, it is stated that Form A is to be sent to the Chief Electoral Officer and to the Returning Officer, yet, the Election Commission of India has issued clarification in Handbook for Returning Officer, 2014 in para 8.4.Q in https://hcservices.ecourts.gov.in/hcservices/ page nos.111 and 112 which reads as:
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“However the submission of these forms to you within the prescribed time will be considered as substantial compliance of the legal requirements, even if the same have not reached the Chief Electoral Officer.”
Q:- Whether the Handbook for the Returning Officer stated to be issued by the Election Commission of India in the Government Gazette?
A:- The Returning Officer's Handbook will not be gazetted. The directions of Election Commission of India given from time to time for the guidance of Election Conducting Authorities need to be complied with in terms of Article 324 of the Indian Constitution.
Q:- What is the impact of merely addressing Form A to the Chief Electoral Officer but not submitting the same within the stipulated time and date?
A: - The Election Commission of India has clarified regarding the non-submission of the Form-A and Form-B in terms of para 8.4.(q) in page nos.111 and 112 of the Handbook for Returning Officer, 2014, which is extracted above.
According to the Election Commission of India, submission of Form A to the Returning Officer is substantial compliance.”
12 In the examination-in-chief, the learned counsel
for the Election Petitioner tried to build up a case by asking Mr. Rudhra Goud (P.W.1) as to what ink, i.e., whether fountain pen ink or ball point pen ink has been
used for signing Form A and Form B, for which, the witness
stated that he is not an ink expert. Certain blank columns
in Form A (Ex.P.3) and Form B (Ex.P.4) were shown to Mr.
Rudhra Goud (P.W.1) and he was asked certain questions to https://hcservices.ecourts.gov.in/hcservices/
show that the said forms were not completely filled and
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that certain portions were not struck off. The answers
given by Mr. Rudhra Goud (P.W.1) to the said questions would have no significance, because, the Election Petitioner had not pleaded these aspects nor were any issue framed in this regard. That apart, the said blanks are indeed very trivial in nature and they can, by no stretch of imagination, have the effect of unseating the victor.
13 Mr. Rudhra Goud (P.W.1) was cross-examined by the
learned counsel for the Returned Candidate though there was
not much scope in his cross-examination since he had stated the facts based on records.
submitted by the Returned Candidate was marked as Ex.P.1
and in that file, the nomination form of the Returned
Candidate was marked as Ex.P.2; Form A and Form B filed by
the Returned Candidate were marked as Ex.P.3 and Ex.P.4
respectively; the file relating to the communications sent
by various political parties, including the AINRC, the letter of Sivaswamy and the reply sent to Mr. Sivaswamy,
was marked as Ex.P.5; the letter dated 28.06.2016 sent by
Mr.Sivaswamy to the Chief Electoral Officer was marked as
Ex.P.6; the reply letter dated 30.06.2016 sent by the Office of the Chief Electoral Officer to Mr. Sivaswamy was
marked as Ex.P.7 and the communication dated 29.04.2016 addressed by Mr. V.Bhalan, General Secretary of the AINRC
to the Chief Electoral Officer, Puducherry, furnishing the https://hcservices.ecourts.gov.in/hcservices/
list of official candidates of the AINRC, was marked as
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Ex.P.8.
15 Mr. Rajamanickam, Returning Officer of Thirubhuvanai Constituency, who was examined as P.W.2, in his evidence, stated that he received the nomination papers of the Returned Candidate along with Form A and Form B on 29.04.2016 at 2.53 p.m. He further deposed that after receipt of the nomination papers with enclosures, copies of them were taken and they were displayed in the notice board and posted in the website of the Election Commission of India, so that any person can raise objections. The following part of his evidence may be essential.
“It is not required for the Returning Officer to call for the details of submission of Form A by the returned candidate from the Chief Electoral Officer. It is correct to state that while scrutinising the nomination papers, I was not aware whether the returned candidate has submitted Form A to the CEO. I do not know whether the candidates of other political parties had submitted Form A to the Chief Electoral Officer. In view of the instructions given by the Election Commission of India in Page no.111 of the Handbook for Returning Officer, 2014, I am saying that nonsubmission of Form A to the CEO is a nonsubstantial compliance for which the nomination paper cannot be rejected.”
about the ink in Form A and Form B, for which, he stated that he is not an ink expert and that he does not know whether fountain pen ink or ball point pen ink was used in Form A and Form B. Certain blank columns in Form A and Form B were put to him, which were rightly objected to by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the Returned Candidate on the ground
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that those aspects were not pleaded in the Election Petition.
17 In the cross-examination of Mr. Rajamanickam (P.W.2), Returning Officer, the learned counsel for the Returned Candidate marked the order dated 30.04.2016 passed
by the Returning Officer accepting the nomination of 12 candidates, including that of the Election Petitioner and the Returned Candidate and rejecting the nomination papers of five candidates as Ex.R.1 and Pages 107 to 114 of Chapter VIII of the Handbook for Returning Officer, 2014 (for short “the Handbook”) as Ex.R.2.
18 The following questions and answers in the crossexamination of Mr.Rajamanickam (P.W.2), Returning Officer, are worth extracting:
“ Q: Is there any rule to the effect that while filing the nomination papers before the Returning Officer, the candidate should file proof of having submitted Form A to the Chief Electoral Officer.
A: There is no such rule. The Form A (Ex.P.3) submitted by the Returned Candidate is addressed to both the Chief Electoral Officer and the Returning Officer.
At the time of scrutiny of the nomination papers of the Returned Candidate, all the contesting parties were given the opportunities to peruse the nomination papers and documents and raise objections if any. It is correct to state that no one including the Election Petitioner raised any objection with regard to the submission of Form A submitted by the Returned Candidate. The Election Petitioner was also present at the time of scrutiny of the nomination papers as mentioned in the Annexure of Ex.R.1 It is correct to state except the https://hcservices.ecourts.gov.in/hcservices/ Returned Candidate, no one else claimed that he is the official candidate of All India NR
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Congress and that he is entitled to contest the election on its symbol. No one has objected that Mr. N. Rangasamy and Mr. V. Bhalan are not the persons authorised to issue Form A and B. It is correct to state that the Returned Candidate has filed the nomination papers along with Form A and B with proper format and therefore, I had no reasons to reject his nomination papers. It is correct to state that All India NR Congress is a State recognised registered party. It is correct to state that Ex.R.1 order was passed by me.
Court Question:- During the training session, what were you briefed by the Election Commission of India with regard to Form A and Form B?
A: In Puducherry Assembly, there are certain constituencies like Mahe and Yanam, in far off places and therefore, we were advised to accept the Form A and Form B submitted by the candidates along with the nomination papers to the Returning Officer. These instructions find place in the Ex.R.2, Handbook for Returning Officer.”
19 With the examination of Mr. Rudhra Goud (P.W.1), Joint Chief Electoral Officer and Mr.Rajamanickam (P.W.2), Returning Officer of Thirubhuvanai Constituency, the Election Petitioner closed his side of evidence. No witness was examined on the side of the Returned Candidate.
20 This Tribunal heard Mr. S. Sathiaseelan, learned
counsel for the Election Petitioner, Mr. G. Masilamani, learned Senior Counsel representing Mr.T.Sathiamoorthy, learned counsel on record for the Returned Candidate and
Mr. Niranjan Rajagopalan, learned Standing Counsel for respondents 2 to 4.
21 After the close of oral arguments, both sides submitted written arguments.
https://hcservices.ecourts.gov.in/hcservices/ 22 Submission on behalf of the Election Petitioner:
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a For non-submission of Form A to the Chief
Electoral Officer before 03.00 p.m. on 29.04.2016, the Returning Officer should not have accepted the nomination papers of the Returned Candidate and should have rejected the same.
Symbols Order") uses the expressions "deemed" and "if and only if" and that these two expressions should be given their full weightage and if that is given, the acceptance
of the nomination papers of the Returned Candidate should
Symbols Order is mandatory and its non-compliance would attract the grounds for declaring the result of the
Returned Candidate as null and void.
Officer in violation of Paragraph 13 of the Election Symbols Order, which reads as under, is a substantial defect and therefore, the nomination papers of the Returned Candidate should not have been accepted by the Returning Officer.
“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 https://hcservices.ecourts.gov.in/hcservices/ this Order applies, a candidate shall be deemed to be set up by a political party in any such
24
Parliamentary or Assembly Constituency, if, and only if, --
a the candidate has made the prescribed declaration to this effect in his nomination paper.
aa the candidate is a member of that political party and his name is borne on the rolls of members of the party.
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 for 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 or any other office bearer of the party and the President, Secretary or such other office bearer sending the notice has been authorised by the party to send such notice;
d the name and specimen signature of such authorised person are communicated by the party in Form A, to the Returning Officer 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:
Provided that no facsimile 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.”
23 Judgments relied upon by the learned counsel for the Election Petitioner for the following propositions of law:
25
https://hcservices.ecourts.gov.in/hcservices/ V If an act has to be done in a particular manner, it should be done only in that particular manner:
26
a Narbada Prasad vs. Chhaganlal and Others [AIR 1969 SC 395] – Paragraph no.5
b Chief Information Commissioner and another vs. State of Manipur and another (2011) 15 SCC 1 - Paragraph no.40
c Resurgence India vs. Election Commission of India and another (2014) 14 SCC 189 – Paragraph no.23
24 SUBMISSIONS ON BEHALF OF THE RETURNED CANDIDATE:
a Pleadings in the election petition have not been verified as required under Section 83(1)(c) of the
Representation of the People Act, 1951 (for short "the R.P.
Act") read with Order VI Rule 15 C.P.C. and though this
defect was pointed out by the Returned Candidate in paragraph 35 of her reply statement dated 04.01.2017, the Election Petitioner has not chosen to correct the same with the leave of this Tribunal.
b The Election Petitioner has not pleaded that the result of the election insofar as it concerns the Returned Candidate has been materially affected by the improper
acceptance of the Returned Candidate's nomination or by the non-compliance with the provisions of Paragraph 13 of the Election Symbols Order.
c Form A (Ex.P.3) has been addressed to both the
https://hcservices.ecourts.gov.in/hcservices/ Chief Electoral Officer, Puducherry and to the Returning
Officer, Thirubhuvanai Constituency and it complies with
27
the format given in the Election Symbols Order.
d The format given in the Election Symbols Order, by itself, contemplates addressing it to the Chief Electoral Officer and the Returning Officer and it does not say that the same should be made in duplicate so as to give one to
the Chief Electoral Officer and the other to the Returning Officer.
be satisfied that the candidate has been sponsored by a registered and recognised political party, for which, he would require Form A and Form B to be filed along with the nomination papers.
Electoral Officer nor is there any duty cast on the
Returning Officer to verify from the office of the Chief Electoral Officer as to whether Form A has been submitted to him.
g The Election Commission of India has framed the Handbook by virtue of Paragraph 18 of the Election Symbols
Order. Paragraph 8.4.2 (q) of the Election Symbols Order
clearly states that submission of Form A to the Returning
Officer would be substantial compliance; thus, it is not open now for the Election Petitioner to contend that the same is not substantial compliance. https://hcservices.ecourts.gov.in/hcservices/
h Neither the Election Petitioner nor anyone else
28
raised any objection during scrutiny nor did anyone say that the Returned Candidate was not the official candidate of the AINRC.
i The Returning Officer is bound to follow the
Handbook.
j Even if the Returned Candidate's election is
set aside, the Election Petitioner cannot be declared as
elected.
25 Judgments relied on by the learned Senior Counsel
appearing for the Returned Candidate for the following
propositions of law:
I Verification of pleadings should be as prescribed
under Section 83 of the R.P. Act.
a L.R. Shivarama Gowda vs. T.M. Chandrasekar
(1999) 1 SCC 666 – Paragraph 12A
b Bita vs. Nanaji Sitaram Shamkule
2010 SCC Online Bom 1101- Paragraphs 33 to 39
II Mere non-compliance with provisions of the
Constitution of India or the R.P. Act or rules or
orders made thereunder does not render the
election void, unless the Election Petitioner
pleads and proves that the result of the election
insofar as the Returned Candidate is materially
affected.
a Uma Ballav Rath vs. Maheswar Mohanty
(1999) 3 SCC 357 – Paragraph 7
b Mangani Lal Mandal vs. Bishnu Deo Bhandari
(2012) 3 SCC 314 – Paragraphs 11 to 14
c Ram Sukh vs. Dinesh Agarwal
(2009) 10 SCC 541 – Paragraphs 21 to 25
29
a Prakash Khandre vs. Vijayakumar Khandre
(2002) 5 SCC 568 – Paragraphs 14 to 24
26 This Tribunal gave its anxious consideration to
the rival submissions.
27 Sir Winston Churchill was very sceptical and
cynical about our ability to survive as a democratic
country and this is what he said in the British Parliament
on the 6 th of March 1947 during the discussion on Indian
independence:
“In handing over the Government of India to these so called political classes, we are handing over to men of straw, of whom, in a few years, no traces will remain”.
We have proved him wrong, thanks to the innate democratic sense of the people of India, the independence of the Election Commission of India and the belief of the Indian political parties in the power of the ballot than on bullet.
https://hcservices.ecourts.gov.in/hcservices/ 28 The Parliament, in its wisdom, has vested the power to adjudicate election disputes arising in
30
Parliamentary/Legislative Assembly elections on a Tribunal presided over by a Judge of the High Court, because, only such a Presiding Officer, whose removal can be only by impeachment, will be able to decide the dispute dispassionately by balancing the mandate of the electorate on the one hand, with the victory if obtained by violation
of the Constitutional and statutory provisions, on the
other hand. Unlike the election process in the U.S., our election process is simple and straightforward based on
universal adult suffrage. The Constitution of India has entrusted the onerous task of conducting free and fair elections with the Election Commission of India and the
people wait in serpentine queues to cast their votes reposing faith on the independence of the Election Commisison of India and are also confident that if any irregularity is committed in the conduct of the election, another Constitutional body called the High Court, though
wearing the garb of a Tribunal, would interfere at the appropriate stage. Political parties in India have also
reconciled to this game rule.
1 Subject to the provisions of sub-section (2), if the High Court is of opinion --
a that on the date of his election, a returned candidate was not qualified, or was https://hcservices.ecourts.gov.in/hcservices/ disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or
31
b that any corrupt practice has been committed by a returned candidate or his electioin 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, insofar as it concerns a returned candidate, has been materially affected--
i by the improper acceptance of 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 iii by the improper reception, refusal or rejection of any 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 https://hcservices.ecourts.gov.in/hcservices/ reasonable means for preventing the commission of corrupt practices at
32
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."
Section 100 of the R.P. Act has been crafted in such a
manner that violation of a rule will not ipso facto render
the election of a Returned Candidate void. To attract Section 100(1)(d)(i to iv), it should be shown that on account of the alleged infraction, the result of the election, insofar as it concerns the Returned Candidate,
has been materially affected. This pre-requisite is not
necessary for setting aside the election on the grounds enumerated in Section 100 (1)(a)(b) and (c), ibid . The reason for this dichotomy is not far to seek. Sub-clauses (a) to (c) in Section 100 (1) of the R.P. Act directly
touch upon the foundational aspects of purity in elections
and that is why, the caveat as found in Section 100(1)(d),
ibid, is not available therein. Supposing a corrupt or
partisan Returning Officer improperly rejects the nomination of a prospective Chief Ministerial candidate of
a political party in order to favour a rival party
candidate, then, it is not necessary for the former to show that the improper rejection had materially affected the
result of the election, because, he was not allowed to https://hcservices.ecourts.gov.in/hcservices/ contest and therefore, he cannot establish by surmises that
had his nomination been accepted, he would have won the
33
election or would have split the votes resulting in some other candidate winning the election. Likewise, if the Returned Candidate had adopted any corrupt practice, that, by itself, is enough to set aside her election without anything more. However, in the case of an improper acceptance of a nomination or violation of any legal provisions in the acceptance of the nomination of a candidate, the aggrieved is required to plead and prove that the result of the election, insofar as it concerns the
Returned Candidate, has been materially affected. Unfortunately, in the whole of this election petition, the expression to the effect that, the result of the election, insofar as it concerns the Returned Candidate, has been materially affected by the non-submission of Form A to the Chief Electoral Officer, does not find a place. Only in paragraphs 8, 9 and 10 of the election petition, the
expression "materially affected" has been vaguely employed and the said paragraphs are extracted below:
“8 . . . Such non-compliance of mandatory requirements under the Representation of the People Act, 1951 and the Election Symbols (Reservation and Allotment) Order, 1968 by the 1st respondent/returned candidate vitiates his nomination itself, consequently, the acceptance of his nomination paper tantamount to illegal and improper acceptance, thereby, the result of the election, insofar as 2-Thirubhuvanai Assembly Constituency electing the first respondent has been materially affected as stated supra under Section 100(1)(d)(i) and (iv) of the Representation of the People Act, 1951.
34
mandatory requirement under Section 33 of the Representation of the People Act, 1951 and the Election Symbols (Reservation and Allotment) Order, 1968 in that the incomplete nomination paper had been presented by the first respondent and the same was illegally and improperly accepted by the Returning Officer thereby making the resultant election of the respondent/returned candidate being materially affected by the improper acceptance of the nomination by the Returning Officer tantamount to non-compliance with the provisions of the Constitution of this Act, Rules and Orders made under the Act as per Section 100 (1)(d)(i) and (iv) as quoted above.
The context in which the expression "materially affected" has been used in the above paragraphs does not satisfy the
requirements of Section 100 (1)(d) of the R.P. Act. At this juncture, it may be relevant to quote Section 83(1)(a) and 86(1) of the R.P.Act which read as under:
“83 Contents of petition : (1) An election petition --
(a) shall contain a concise statement of the material facts on which the petitioner relies;”
“86 Trial of election petitions: (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.”
Failure to plead material facts would entail even dismissal
of the election petition under Order VII Rule 11 C.P.C.
The expression "material facts" used in Section 83(1)(a) of https://hcservices.ecourts.gov.in/hcservices/
the R.P. Act should be in relation to Section 100 (1)(d),
35
ibid, that the result of the election insofar as it concerns the Returned Candidate has been materially affected.
Petitioner need not extract the expression from the statute verbatim in the election petition and it would suffice, if the pleadings satisfy the requirements of the statute. Unfortunately, for the Election Petitioner, his pleadings do not satisfy the requirements of the statute, inasmuch as, he has not averred as to how the acceptance of the nomination papers of the Returned Candidate, despite nonsubmission of Form A by her to the Chief Electoral Officer, had materially affected the result of the election, insofar as it concerns the Returned Candidate.
31 The learned counsel for the Election Petitioner
placed strong reliance on the judgment of the Supreme Court
in Jagjit Singh Vs. Dharam Pal Singh and Others [1995 Supp (1) SCC 422], wherein, the Supreme Court has held as under:
“21. The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that Section 100(1)( d ) of the Act is not intended to provide a convenient technical plea in a case where https://hcservices.ecourts.gov.in/hcservices/ there can be no dispute at all about the result of the election being materially affected by the alleged infirmity. (See: Durai Muthuswami v. N.
36
Nachiappan [(1973) 2 SCC 45 : (1974) 1 SCR 40] .) In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected.”
32 In Haryana Financial Corporation vs. Jagdamba Oil Mills [(2002) 3 SCC 496] , the Supreme Court held that a judgment cannot be read as Euclid's theorem. It may be relevant to quote Lord Halsbury in Quinn vs. Leathem [1901 AC 495] , quoted with approval by the Supreme Court in Rajindra Singh vs. State of U.P. and another [(2007) 7 SCC 378]:
“A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to logically follow from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas, every lawyer must acknowledge that the law is not always logical at all."
dismissed the Election Petition at the threshold by ignoring the pleadings relating to material facts in the election petition. In paragraph nos. 5 and 12, the Supreme Court has extracted the essence of the pleadings in the https://hcservices.ecourts.gov.in/hcservices/ election petition which can be profitably extracted here as well:
37
“5. . . . . .The case of the appellant is that counting of votes took place behind an iron net. The counting agents were made to sit 5-6 feet behind the net and as such could not take down the numbers properly. But he had given full particulars of the valid votes which, according to the appellant, were improperly rejected.
(Appellant in this case was the Election Petitioner)
In spite of such pleadings, the High Court had dismissed
the election petition at the threshold and in those circumstances, the Supreme Court has held so in paragraph 21 extracted above. To repeat, even in paragraph 21, the Supreme Court has held as under:
34 In the facts of the case at hand, this Tribunal is
unable to fathom as to how the failure to submit Form A to the Chief Electoral Officer would have, in any manner, affected the result of the election, insofar as it concerns
the Returned Candidate. To this, the learned counsel for https://hcservices.ecourts.gov.in/hcservices/ the Election Petitioner contended that the Returning
38
Officer should not have accepted the nomination papers of the Returned Candidate for not having submitted Form A to the Chief Electoral Officer and in that event, the Returned Candidate would not have been able to contest the election and as a sequel, the Election Petitioner would have won the
election. Only in spurious democracies, such a sly manner
of ejecting a likely winner from the election race will be
resorted to. Indian democracy is authentic and not spurious. That apart, Section 36(4) of the R.P. Act itself
says that the nomination papers of a candidate should not be rejected on the ground of any defect which is not of a substantial character. Section 36(4) of the R.P. Act is usefully extracted hereunder:
“36 Scrutiny of nominations: (4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.”
35 The learned counsel for the Election Petitioner
contended that the “nomination paper” referred to in Section 36(4) of the R.P. Act would mean the nomination
paper submitted by the Returned Candidate in Form No.2-B prescribed by virtue of Rule 4 of the Conduct of Election
Rules, 1961 and it would not have saved the non-submission of Form A to the Chief Electoral Officer which is mandated by Paragraph 13(d) of the Election Symbols Order.
36 To answer this question, it may be necessary to answer the following two subsidiary questions:
https://hcservices.ecourts.gov.in/hcservices/ ➢ What is Form A?
39
37 Form A has not been prescribed by the Conduct of
Election Rules, 1961, but, has been framed under the
Election Symbols Order. It is common knowledge that the
Election Commission is vested with the power to allot
symbols to political parties and candidates. The format of Form A, as given in the Election Symbols Order, is extracted for ready reference:
“FORM A
Communication with regard to Authorised Persons to intimate names of candidates set up by recognised NATIONAL OR STATE Political party or REGISTERED UN-REGISTERED political party:
(See paragraph 13(c), (d) and (e) of the Election Symbols (Reservation and Allotment) Order, 1968) To
Subject: General Elections to ........... from ...................... (State / Union Territory) – Allotment of Symbols – Authorisation of persons to intimate names of candidates.”
declare a particular person as the official candidate of the party or he can appoint some other person and delegate
https://hcservices.ecourts.gov.in/hcservices/ him the power to declare a particular person as the
official candidate of the party. This delegation of power
40
is permitted, because, in national parties, the leader will be sitting in New Delhi or in any other State or Union Territory and may not be able to issue individual declarations to all his party candidates, especially during Assembly elections. Therefore, for each State, the leader
of the political party will appoint one person whose signature he will attest and empower him to declare the official candidate of the party. This is, in essence, the purport of Form A. Thus, Form A will contain the name of the leader of the political party and also the person authorised by him or empowered by him to declare the candidate for a constituency.
39 In the instant case, Form A which has been marked as Ex.P.3 has been prepared in the letter head of the
AINRC. Mr. N. Rangasamy, the President of the AINRC, has
signed in ink in Form A and has authorised Mr.V.Bhalan,
General Secretary of the AINRC, to intimate the names of
the candidates for thirty constituencies of the Union
Territory of Puducherry. Mr.V.Bhalan has affixed his specimen signature at three places in Form A, beneath
which, Mr. N. Rangasamy, President of the AINRC has signed.
Form B (Ex.P.4) dated 29.04.2016 is the actual authorisation that has been given by Mr.V. Bhalan declaring that the Returned Candidate is the official
candidate of the AINRC.
40 In Part III of the nomination papers (Ex.P.2)
41
submitted by the Returned Candidate, she has clearly stated in Tamil that she is set up at this election by the AINRC which is a registered and recognised State party and that the symbol reserved for the above party be allotted to her.
41 To recapitulate, Form 2B is the nomination paper
as prescribed by the Conduct of Election Rules, 1961, in which, in Part III, the Returned Candidate has given the above declaration. In support of the above declaration,
the Returned Candidate has submitted Form A and Form B to
the Returning Officer before 3.00 p.m. on 29.04.2016.
“Nomination paper: Every nomination paper presented under sub-section (1) of section 33 shall be completed in such one of the Forms 2-A to 2-E as may be appropriate.
Provided that a failure to complete or defect in completing the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of section 36.”
Thus, even if there is a defect as to symbols in the
nomination paper in Form 2-B, it shall not be deemed to be a defect of substantial character. When this is the legal
position, to say that non-submission of Form A to the Chief Electoral Officer would amount to substantial noncompliance and therefore, the Returning Officer ought not to have accepted the nomination papers of the Returned
Candidate, sounds incongruous.
43 The learned counsel for the Election Petitioner
42
placed reliance on the following judgments and contended that the failure to follow Paragraph 13 of the Election Symbols Order would be a ground to set aside the election under Section 100(1)(d)(iv) of the R.P. Act.
a In Roop Lal Sathi (supra) relied upon by the
learned counsel for the Election Petitioner, one Jagmohan Singh filed nomination on behalf of the Indian National Congress (I) for the Moga Assembly Constituency and he was given the “Hand” symbol. One Nachhattar Singh Gill also filed nomination papers and he was allotted “Bow and Arrow” symbol. The Returning Officer wrote a letter to Jagmohan Singh stating that he has been informed by the Secretary, Election Commission of India that Nachhattar Singh has been put up as the official candidate of the Congress Party and therefore, Nachhattar Singh was allotted “Hand” symbol and Jagmohan Singh was allotted “Bow and Arrow” symbol. In that election, Roop Lal Sathi contested on Lok Dal ticket
and lost to Nachhattar Singh by a margin of 5,774 votes. Roop Lal Sathi filed election petition contending that Jagmohan Singh had submitted Form A and Form B to the Returning Officer and that he should have been allotted the “Hand” symbol, whereas, the Returning Officer had changed the symbol, on account of which, Nachhattar Singh won and he lost. Roop Lal Sathi had specifically pleaded in Paragraph 15 of the election petition as under:
“. . . and the result of the election, https://hcservices.ecourts.gov.in/hcservices/ insofar as it concerns the returned candidate i.e. the respondent, has been materially
43
affected inasmuch as because of the change of symbol Jagmohan Singh got only 242 votes while the respondent could not have secured more than the same number if he had contested on the symbol ‘bow & arrow’ earlier allotted to him. If the respondent had not been allotted the reserved symbol ‘hand’ of the Indian National Congress(I), he could not have won the election. In paragraphs 16, 17 and 18, the appellant set out some facts showing how the result of the election, insofar as it concerns the respondent, has been materially affected by the change of allotment of symbols.”
The High Court framed a preliminary issue and dismissed the
election petitioner of Roop Lal Sathi on the ground that he
had not pleaded material facts. Challenging the order of
the High Court, Roop Lal Sathi approached the Supreme Court
and in that context, the Supreme Court held as follows:
“17. In our judgment, the High Court was clearly in error in holding that the Symbols Order was not an order made under the Act and therefore the change of allotment of symbols by the Returning Officer in compliance with the directions issued by the Election Commission, even if it was in breach of para 13 thereof, did not amount to non-compliance with the provisions of the Constitution, or the Act, or any rules or orders made under the Act and therefore the matter fell outside the ambit of Section 100(1)( d )( iv ) of the Act. . .”
The learned counsel for the Election Petitioner submitted
that in Roop Lal Sathi (supra), the Supreme Court has very clearly held that the Election Symbols Order has been
issued under Article 324 of the Constitution of India and
that it has to be followed scrupulously. This Tribunal has
no quarrel with the aforesaid proposition laid down by the Supreme Court that the Election Symbols Order should be
https://hcservices.ecourts.gov.in/hcservices/ followed scrupulously. However, in Roop Lal Sathi (supra),
44
the issue was not non-submission of Form A to the Chief Electoral Officer. The issue was, whether the High Court was right in dismissing the Election Petition at the preliminary stage by holding that the failure of the Returning Officer to follow the Election Symbols Order was not fatal on the ground that the Election Symbols Order was
not made under the R.P. Act. Had the Returned Candidate in
our case not submitted Form A to the Returning Officer, then, the Returning Officer would have rejected the nomination papers of the Returned Candidate by following Paragraph 13 of the Election Symbols Order and would not have allotted the “Jug” symbol to anyone. Unlike in Roop Lal Sathi (supra), in the present case, there is no averment with regard to Section 100(1)(d) of the R.P. Act as to how the result of the election has been materially affected, insofar as it concerns the Returned Candidate.
b In Ramesh Rout (supra) relied upon by the learned
counsel for the Election Petitioner, one Ranendra Pratap Swain filed four sets of nomination papers as a candidate of Biju Janata Dal (BJD). The Returning Officer rejected
the nomination papers of Ranendra Pratap Swain on the
ground that Form A and Form B were not signed in ink. In the election, Ramesh Rout won. The election was challenged
by Ranendra Pratap Swain for improper rejection of his nomination papers by contending that he had filed four sets
https://hcservices.ecourts.gov.in/hcservices/ of nomination papers and that the first set contained Form
A and Form B in original signed in ink, but, only the other
45
three sets had photocopies of Form A and Form B and
therefore, his nomination papers should not have been rejected by the Returning Officer. The Orissa High Court allowed the election petition and held that Ranendra Pratap Singh had filed one set of nomination papers with Form A
and Form B signed in ink and therefore, the Returning Officer should not have rejected his nomination papers.
Ramesh Rout approached the Supreme Court challenging the
order of the Orissa High Court. During the course of arguments, Mr. K.K. Venugopal, learned Senior Advocate, submitted before the Supreme Court that Paragraph 13 of the Election Symbols Order cannot be read into Rule 4 of
the Conduct of Election Rules, 1961. This argument was rejected by the Supreme Court. The Supreme Court held in paragraph 49 of the judgment as under:
“49. . . . .In other words, it was necessary for the proposed candidate that Forms A and B referable to clauses ( b ), ( c ) and ( d ) of Para 13, 1968 Order were submitted to the Returning Officer duly signed in ink by the authorised person of BJD not later than 3.00 p.m. on 4-4-2009." (emphasis supplied)
Here also, the Supreme Court has reiterated the importance
of submission of Form A and Form B to the Returning Officer
and not to the Chief Electoral Officer. The Supreme Court dismissed the appeal of Ramesh Rout and confirmed the order
of the Orissa High Court. The issue before the Supreme https://hcservices.ecourts.gov.in/hcservices/ Court was “improper rejection” of nomination papers of
46
Ranendra Pratap Swain, whereas, the case at hand relates to “improper acceptance” of the nomination papers of the
Returned Candidate.
learned counsel for the Election Petitioner, Kamal Sharma and Bachan Singh filed nomination papers claiming to be candidates of Indian National Congress Party. The Returning Officer accepted the nomination papers of Bachan Singh as the official candidate of Indian National Congress Party and rejected that of Kamal Sharma. In the election, Ram Pal
Kundu who contested on Lok Dal Party ticket was declared elected. Kamal Sharma filed election petition contending that he was the official candidate of the Indian National Congress Party and the Returning Officer had improperly rejected his nomination papers. The election petition was allowed by the Punjab and Haryana High Court and the election of Ram Phal Kundu was set aside, challenging which, Ram Phal Kundu approached the Supreme Court. In Ram
Phal Kundu (supra) also, the issue was improper rejection of the nomination of Kamal Sharma. Therefore, there was no necessity for Kamal Sharma to plead that the result of election, insofar as it concerns the Returned Candidate,
has been materially affected. On facts, the Supreme Court noted in paragraph 8.2 of the judgment as under:
“8.2.Thus, there is no dispute that Form B submitted by Bachan Singh contained a categorical https://hcservices.ecourts.gov.in/hcservices/ statement to the effect that the notice given in Form B earlier in favour of Kamal Sharma as party's approved candidate and Smt Kusum, w/o
47
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 had been nominated as authorised person of the Congress Party. There is also no dispute that Form B submitted by Bachan Singh was later in point of 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.”
It appears that after the last date of nomination, i.e.,
03.02.2000, an enquiry was conducted on 04.02.2000, in which, the Returning Officer is said to have spoken to one Bhupinder Singh Hooda, who was authorised by the Congress
high command to issue Form B and that Bhupinder Singh Hooda
had filed an affidavit stating that Kamal Sharma is the
nominated candidate of the Indian National Congress Party. Therefore, the Supreme Court framed the following question in paragraph 10:
“10 The question that arises is whether this evidence, which is all subsequent to the last date of filing of the nomination paper, can be looked into in order to ascertain as to who had been set up as a candidate by the Congress party.”
While answering the aforesaid question, the Supreme Court
has held that Paragraphs 13 and 13-A of the Election Symbols Order should be strictly adhered to and the Supreme
Court further went on to emphasise the importance of the
deeming fiction and the expression “if and only if” in Paragraph 13 of the Election Symbols Order and has followed
Nazir Ahmad vs. King Emperor [AIR 1936 PC 253] and has held
that if a certain act has to be done in a particular https://hcservices.ecourts.gov.in/hcservices/
manner, it has to be done only in that manner. Further, in
48
paragraph 18, the Supreme Court held as under:
“18. The learned counsel for the respondent has submitted that Form B of Bachan Singh did not reach the Office of the Chief Electoral Officer and, therefore, there was no valid nomination of his. The High Court has gone to the extent of saying that though Bachan Singh had submitted Form A and Form B along with his nomination paper before the Returning Officer but no Form A in respect of his candidature was submitted by him to the Chief Electoral Officer and, therefore, the same would not have the effect of rescinding the candidature of Kamal Sharma. Learned counsel for the respondent has also referred to the amendment in the Handbook for Returning Officers by which para 10.3( i ) was substituted by the following sub-para:"
From the above, it is clear that the Punjab and Haryana
High Court had given a finding that Bachan Singh had not
submitted Form A to the Chief Electoral Officer and
therefore, the same would not have the effect of rescinding the candidature of Kamal Sharma. Despite this, ultimately,
the Supreme Court held that Bachan Singh had submitted Form
A and Form B at 2.50 p.m. on 03.02.2000 and therefore, the
Returning Officer was right in accepting his nomination papers and rejecting Kamal Sharma's nomination papers.
After having held so, the Supreme Court proceeded further to hold as follows in paragraph 27:
“27. . . . .It will be apposite to refer to a well-settled principle in election jurisprudence. After referring to earlier decisions in Jagan Nath v. Jaswant Singh [AIR 1954 SC 210] and Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe [(1995) 5 SCC 347] this Court in Jeet Mohinder Singh v. Harminder Singh Jassi [(1999) 9 SCC 386] stated as under: (SCC p. 409, para 40)
49
“ 40 . ( i ) The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration.”
Thus, the essence of the judgment in Ram Phal Kundu (supra) is that Bachan Singh had submitted Form A and Form B with his nomination papers at 2.50 p.m. on 03.02.2000 and therefore, the election of the Returned Candidate cannot be set aside on that ground, on account of the internecine fight between two persons claiming right to represent a political party. Whereas, the case at hand is distinguishable by the fact that there was no rival claimant for the “Jug” symbol. That apart, this is not a
case of improper rejection of nomination papers, but, the improper acceptance of nomination papers, to sustain which, the Election Petitioner has not pleaded the necessary material facts.
d Krishna Mohini (supra) relied on by the learned counsel for the Election Petitioner also relates to improper rejection of nomination papers and in that https://hcservices.ecourts.gov.in/hcservices/ context, the Supreme Court has held that the Retuning
50
Officer should have followed Paragraph 13 (a) to (d) of the Election Symbols Order strictly and that Form A and Form B should have been submitted not later than 3 p.m. on the last date of nomination.
44 Before moving away from this topic, it may not be out of place to delve a little more on the oft-quoted proposition of law that when a certain act has to be done in a particular manner, it has to be done only in that manner and not otherwise, as laid down by the Privy Council in Nazir Ahmad (supra).
45 In Nazir Ahmad (supra), the confession of the accused was not even recorded by the Magistrate as required under Section 164 Cr.P.C. Instead, the Magistrate gave oral evidence of the confession. Therefore, in that context, the Privy Council held that the confession will stand vitiated, as it has not been recorded in the manner as laid down by the Code. Thus, the Privy Council was dealing with the life and liberty of a prisoner. A
confession, proprio vigore , is capable of putting a prisoner in the gallows. Therefore, in that context, the Privy Council held so. This principle has been extended by
the Courts to cover cases where a particular person had suffered prejudice on the failure of an authority to follow the statutory procedure as laid down, thereby denying him a statutory right. For example, if a Returning Officer https://hcservices.ecourts.gov.in/hcservices/ improperly rejects the nomination paper of a candidate in
violation of the statutory procedure, the candidate loses a
51
statutory right to contest the election. Therefore, it is
open for such a candidate to rely upon Nazir Ahmad (supra)
and say that the Returning Officer had not done an act in a particular manner as mandated by the statute, resulting in his ouster from the election fray. In the humble opinion of
this Tribunal, the principle in Nazir Ahmad (supra) cannot be pressed into service in a case of this nature, where,
the lost candidate says that the nomination papers of the
Returned Candidate have been improperly accepted in violation of the rules. In the case at hand, the statutory right of the lost candidate is not in question, because, his nomination papers have been accepted and he has contested the election and lost to the Returned Candidate.
After having bitten dust in the hustings, the lost candidate cannot cry hoarse and say that the principle in
Nazir Ahmad (supra) should be extended in order to unseat the Returned Candidate.
46 Question No.2: Is it open to the Returning Officer
to reject the nomination papers of a candidate set up by a political party for non-submission of Form A to the Chief Electoral Officer? The relevance of Form A has already been
set out above. To recapitulate, Form A is the authorisation
given by the party high command to an office bearer to nominate the official candidate of the party. Form B is the nomination of the individual as the official candidate of https://hcservices.ecourts.gov.in/hcservices/ the party. Admittedly, the AINRC contested in all the
thirty Assembly Constituencies in Puducherry, out of which,
52
they won in eight Assembly Constituencies. This means that in 22 out of 30 constituencies, DMK, AIADMK, Indian National Congress and independents have won.
47 Incontrovertibly, the Returning Officers of 30 Assembly Constituencies in Puducherry have accepted the nomination papers of the AINRC candidates with Form A and Form B, without insisting upon them to submit Form A to the Chief Electoral Officer.
of the R.P. Act does not speak about improper acceptance of the nomination of the Returned Candidate. It merely speaks about the improper acceptance of any nomination (emphasis supplied) . If the argument of Mr.Sathiaseelan is accepted, it will mean that the Returning Officers of 22 Assembly Constituencies in Puducherry, in which others have won, have improperly accepted the nomination papers of the AINRC party candidates and that would have been a ground for any elector or any unsuccessful candidate, other than the AINRC candidates, to challenge the election of the Returned https://hcservices.ecourts.gov.in/hcservices/
Candidates, because, under Section 81 of the R.P. Act, an
53
election petition can be filed by any candidate at such election or any elector. This means that even an independent candidate could have filed an Election Petition challenging the election of a DMK or Indian National Congress candidate on the ground that the Returning Officer
had improperly accepted the nomination papers of the AINRC
candidate, as the AINRC candidate had not submitted Form A to the Chief Electoral Officer. This would have led to disastrous consequences resulting in re-election to the entire Puducherry Assembly and rejection of the people's mandate on an absurd ground. It may sound preposterous, but not improbable.
Thirubhuvanai Constituency, who was examined as P.W.2, has
stated that they followed Paragraph 8.4.2 (q) given in the
Handbook uniformly and accepted the nomination papers of
the Returned Candidates. It is not the case of the
Election Petitioner that the Returning Officers were bribed
into acceptance of the nomination papers of the Returned Candidate. The Handbook (Ex.R.2) is a rule book which
formulated the rules of the game. All political parties, including the Election Petitioner, accepted the rules of
the game as adumbrated in the Handbook and participated in the hustings. Concededly, the nomination papers were kept
in public domain and at the time of scrutiny, none, https://hcservices.ecourts.gov.in/hcservices/
including the Election Petitioner, raised any objection on
54
the issue of Form A not having been submitted to the Chief Electoral Officer. The Returning Officer followed Paragraph 8.4.2 (q) of the Handbook in letter and spirit and accepted the nomination papers. Paragraph 8.4.2 (q) of the Handbook reads as under:
“For the purposes of clauses (ii) of paragraph (o) above, persons(s) authorised by the party shall send to you individual notice (authorization letter) in Form B prescribed by the Commission for the purpose, which is reproduced in Annexure 25 Part III. Printed, cyclostyled and photocopies of Form B may be used by political parties; but these must be signed in ink by authorized office bearer(s) of the political party concerned. Similarly, fax copies of such forms are not acceptable. [N.B. The notices in Form A and Form B signed in original must reach you not later than 3 p.m. on the last date for making nominations. The presentation of these Forms to the Chief Electoral Officer alone will not be treated as compliance with the provisions of para 13 of the Election Symbols (Reservation and Allotment) Order, 1968. It shall be the responsibility of the candidate or the political party concerned to ensure that the documents reach the Returning Officer in time. However, the submission of these Forms to you within the prescribed time will be considered as substantial compliance of the legal requirements, even if the same have not reached the Chief Electoral Officer.”
50 It is contended by the learned counsel for the Election Petitioner that even if there is no objection by anyone, still, the Returning Officer has the power to
reject the nomination papers on the ground that Form A was
not submitted to the Chief Electoral Officer. This Tribunal concedes the power of the Returning Officer to
reject a nomination paper even if there is no objection https://hcservices.ecourts.gov.in/hcservices/ from anyone, but, not on the ground that Form A was not
55
submitted to the Chief Electoral Officer. All the Returning Officers were directed by the Election Commission of India to follow the Handbook, wherein, Paragraph 8.4.2 (q) makes it clear that submission of forms to the Returning Officer within the prescribed time will be considered as substantial compliance of the legal requirements. If the Election Petitioner is of the view that Paragraph 8.4.2(q) is not correct, then, he should have challenged the said rule as unconstitutional or ultra vires P aragraph 13(d) of the Election Symbols Order even before participating in the election. 51 The Marylebone Cricket Club Book of Rules, which is the cricketers' Bible, says that there should be a leg umpire and a straight umpire in every match. Now, two teams play a match with a straight umpire alone for want of a leg umpire. After having played the match, the lost team cannot snatch away the victory of the winner team on the ground that the match was played with only one umpire, in violation of the Marylebone Cricket Club Book of Rules.
that the failure to raise this ground at the time of scrutiny will not act as an estoppel since there cannot be an estoppel against statute. This Tribunal can have no quarrel with the aforesaid proposition of law. However, the election of the Returned Candidate cannot be set aside https://hcservices.ecourts.gov.in/hcservices/
on the ground that the Returning Officer should have
56
ignored Paragraph 8.4.2 (q) and should have rejected the
nomination papers on the ground that Form A was not given to the Chief Electoral Officer. In the opinion of this Tribunal, the Returned Candidate has followed the mandates of the Election Symbols Order, as could be seen from Form A
(Ex.P.3) which is addressed to the Chief Electoral Officer and to the Returning Officer, as per the format of the Election Symbols Order. At the risk of repetition, in the Election Symbols Order, the format is given as follows:
Communication with regard to Authorised Persons to intimate names of candidates set up by recognised NATIONAL OR STATE Political party or REGISTERED UN-REGISTERED political party:
(See paragraph 13(c), (d) and (e) of the Election Symbols (Reservation and Allotment) Order, 1968) To
Subject: General Elections to ........... from ...................... (State / Union Territory) – Allotment of Symbols – Authorisation of persons to intimate names of candidates.”
In the instant case, Form A (Ex.P.3) submitted by the Returned Candidate is in conformity with the format and the same is as follows:
“To:
57
Thirubhuvanai Constituency.”
53 The Election Symbols Order does not say that Form A should be made in duplicate and separately for the Chief Electoral Officer and the Returning Officer. The idea of Form A is the intimation by the party high command about the authorisation given to a person to intimate the name of the candidate for and on behalf of the political party. It is the Returning Officer who must be provided with all these forms since he is required to act as a quasi judicial authority while deciding the acceptance or rejection of nomination papers. The Chief Electoral Officer has no role
to play in the acceptance and rejection of the nomination paper. However, it is seen from Ex.P.8 that Mr. V. Bhalan, General Secretary of the AINRC has sent a communication dated 29.04.2016, which has been received by the office of the Chief Electoral Officer on 30.04.2016, wherein, he has given the names of all the official candidates of the party who have been nominated to contest in the 30 Assembly Constituencies. At the bottom of the said communication,
it is stated as follows:
“The following candidates had already filed the Form A and Form B of our party along with their nomination papers before Returning Officer.
This is for your kind notice.”
54 The learned counsel for the Election Petitioner placed reliance upon Jitu Patnaik (supra) and submitted https://hcservices.ecourts.gov.in/hcservices/
that the Handbook does not have statutory character and
58
therefore, this Tribunal should ignore the mandates of Paragraph 8.4.2(q) of the Handbook and set aside the
election of the Returned Candidate.
55 One should understand the context in which the Supreme Court had held so in Jitu Patnaik (supra). In that case, one Akhila Kumar Mohanta filed his nomination papers on 08.04.2009 as an independent candidate and he was allotted TV symbol. But, he breathed his last on 13.04.2009. Polling was held on 23.04.2009 and in the Electronic Voting Machine, the name of Akhila Kumar Mohanta was not deleted. In that election, Jitu Patnaik won. His election was challenged by Sanatan Mohakud before the Orissa High Court on the ground that the Returning Officer should have followed the Handbook and should have deleted the name of Akhila Kumar Mohanta from the Electronic Voting Machine. Jitu Patnaik filed an application under Order VI Rule 16 and Order VII Rule 11 C.P.C. to strike off the pleading, which was dismissed by the Orissa High Court holding that the Returning Officer should have followed the Handbook. Challenging the said order, Jitu Patnaik approached the Supreme Court. Only in that context, the
Supreme Court held that the Handbook is only a book for guidance and failure to follow it without anything more will not give cause of action to maintain the election petition. Holding so, the Supreme Court dismissed the
election petition filed by Sanatan Mohakud. https://hcservices.ecourts.gov.in/hcservices/
56 However, in Arikala Narasa Reddy vs. Venkata Ram
59
Reddy Reddygari and another [(2014) 5 SCC 312] , a 3 Judge
Bench of the Supreme Court has held as under:
“32. It is a settled legal proposition that the instructions contained in the Handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal [(2009) 10 SCC 541] and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil [(2009) 13 SCC 131] . Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case.”
Thus, neither the observation in Jitu Patnaik (supra) nor
the observation in Arikala Narasa Reddy (supra) should be blindly followed by the Tribunal ignoring the circumstances under which the Supreme Court had held so.
Constituencies, the Returning Officers have followed Paragraph 8.4.2 (q) of the Handbook and had accepted the nomination papers of the AINRC candidates without Form A
being submitted to the Chief Electoral Officer. In such
view of the matter, this Tribunal cannot ignore the mandates of Paragraph 8.4.2 (q) of the Handbook and set aside the election of the Returned Candidate.
58 Further, this Tribunal asks itself the question
about the dichotomy in the matter relating to Form A, inasmuch as Paragraph 13 (d) of the Election Symbols Order https://hcservices.ecourts.gov.in/hcservices/ says that Form A should be submitted to the Chief Electoral
60
Officer and the Returning Officer before 3.00 p.m. on the last date of the nomination, whereas, Paragraph 8.4.2 (q) of the Handbook says that submission of Form A to the Returning Officer would amount to substantial compliance.
The Supreme Court, in Ramesh Rout (supra), has rejected Mr.
K.K. Venugopal's contention and has held that Paragraph 13
of the Election Symbols Order should be read into Rule 4 of
the Conduct of Election Rules 1961. The answer for this question is not far to seek. The Election Symbols Order is only a supporting legislation and it cannot supersede the provisions of the R.P. Act. Section 33 of the R.P. Act reads as follows:
“33. Presentation of nomination paper and requirements for a valid nomination:
(1) On or before the date appointed under clause (a) of Section 30, each candidate shall, either in person or by his proposer, between the hours of eleven O' clock in the forenoon and three O' clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under Section 31, a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency.” (emphasis supplied)
(The other provisos have been left out since they are not
germane.)
59 From a reading of Section 33 of the R.P. Act https://hcservices.ecourts.gov.in/hcservices/ extracted above, it is clear that the nomination paper of a
61
candidate sponsored by a political party needs only one proposer and that it should be submitted in the prescribed format before 3 p.m. on the last date appointed by the
Election Commission of India. In other words, the nomination paper can be filed upto 2.59 p.m.. Mr. G.
Masilamani, learned Senior Counsel appearing for the Returned Candidate contended that it will be impossible for
a candidate contesting in Mahe Constituency in Kerala and
Yanam Constituency in Andhra Pradesh to submit Form A, both
to the Returning Officer and the Chief Electoral Officer if
the mandates of Paragraph 13(d) of the Election Symbols Order are to be followed blindly, because, the office of the Chief Electoral Officer is located in Puducherry and
therefore, a person cannot be at two places in and around the same time. That apart, it is common knowledge that till
the eleventh hour, there will be scramble for party tickets
and in several cases, the party high command would announce
the list or change the list in the nick of time. In any event, the provisions of the Election Symbols Order cannot
frustrate the right conferred by Section 33 of the R.P. Act
to submit the nomination papers upto 3.00 p.m. Therefore,
the Election Commission of India had stated in Paragraph 8.4.2 (q) of the Handbook which was followed by all the
Returning Officers in Puducherry, that the submission of Form A to the Returning Officer would amount to substantial
compliance. To reiterate, Form A is not the creature of https://hcservices.ecourts.gov.in/hcservices/
the R.P. Act or the Conduct of Election Rules, 1961, but,
62
the creature of the Election Symbols Order. Thus, the
provisions of the Election Symbols Order cannot be interpreted in such a manner as to frustrate the provisions of Section 33 of the R.P. Act.
60 In fine, this Tribunal holds that the submission of Form A to the Returning Officer before the stipulated time and date for submission of nomination papers is substantial compliance with the extant rules and that the submission of Form A separately to the Chief Electoral Officer has not been stipulated by the Election Symbols Order. The petitioner herein has submitted Form A in the format prescribed by the Election Symbols Order by addressing it to the Chief Electoral Officer and Returning
Officer and has thereby, complied with the requirements of the Election Symbols Order.
61 ANSWERS TO THE ISSUES FRAMED:
Issue nos.1 and 2:
The pleadings of the Election Petitioner do not
satisfy the requirements under Section 100(1)(d) read with Section 83(1)(a) of the R.P. Act, inasmuch as he has not pleaded any material fact to show that failure to submit
Form A to the Chief Electoral Officer separately had materially affected the result of the election, insofar as
it concerns the Returned Candidate. Hence, issue nos.1 and 2 are held against the Election Petitioner.
Answer to Issue No.3 does not arise in view of the
63
answers to other issues.
Issue Nos.4 and 5:
These issues are held against the Election Petitioner for the reasons given in the body of this order.
Issue No.6:
The Returning Officer has not improperly accepted the nomination filed by the Returned Candidate.
Issue Nos.7 and 8:
Submission of Forms A and B to the Returning Officer and not to the Chief Electoral Officer would amount to substantial compliance with the provisions of law.
Issue No.9:
The parties to bear their own costs.
2017 have been filed for striking off the Returning
Officer, Chief Electoral Officer and the Chief Election
Commissioner, respectively, from the array of respondents,
by placing strong reliance upon Section 82 of the R.P. Act
and the law laid down by the Supreme Court in Jyoti Basu
and others vs. Debi Ghosal and others [(1982) 1 SCC 691].
63 The learned counsel on either side fairly
conceded the position. However, this Tribunal did not pass
any separate orders in these Original Applications,
because, that would have resulted in delay in the
https://hcservices.ecourts.gov.in/hcservices/ proceedings as the Registry would be required to carry out
64
corrections and amendments in the pleadings. Hence, these three Original Applications are closed.
64 During the course of oral arguments, Mr. G. Masilamani, learned Senior Counsel appearing for the Returned Candidate submitted in his characteristic and inimitable style that the Election Petitioner has made much ado about nothing, which did incense Mr. Sathiaseelan and as a sequel, Mr. Sathiaseelan brought out his best from within, by placing reliance upon twenty judgments of the Supreme Court to counter the submissions of the learned Senior Counsel.
65 The legal battle was essentially between the two Sathyas , viz ., Mr. S. Sathiaseelan, counsel for the Election Petitioner and Mr.T.Sathiyamoorthy, counsel for
the Returned Candidate, both promising youngsters of the Madras Bar, who did a commendable job, worthy of recognition.
the preamble portion of the discussion part of this order, it will be in the fitness of things to conclude this order with one of his famous quotes and the same reads thus:
“At the bottom of all tributes paid to https://hcservices.ecourts.gov.in/hcservices/ democracy is the little man, walking into a little booth, with a little pencil, making a
65
little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”
In the result, this Election Petition stands dismissed
as being devoid of merits. No costs.
WITNESS, THE HON'BLE MS. INDIRA BANERJEE, CHIEF
JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 05TH DAY
OF JANUARY 2018.
SD/-
ASSISTANT REGISTRAR
Original Side – II
//CERTIFIED TO BE TRUE COPY//
DATED THIS THE DAY OF 2018
COURT OFFICER (O.S.)
From 25 th Day of September 2008 the Registry is issuing
certified copies of the Orders/Judgments/Decrees in this
format.
66
cns – 29.01.2018
ELP.NO.18 OF 2016
AND
OA.NOs.42,43 & 74 OF 2017
ORDER
DATED:05/01/2018
THE HON'BLE MR. JUSTICE
P.N.PRAKASH
FOR APPROVAL:31/01/2018
APPROVED ON :31/01/2018
Copy to:
1.The Speaker
Tamil Nadu Assembly
(Through Secretary
Tamil Nadu Legislative
Assembly Constituency
Chennai – 600 002
2.The Election Commission
of India
Through the Secretary,
New Delhi
67
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION) FRIDAY, THE 5TH DAY OF JANUARY 2018 THE HON'BLE MR. JUSTICE P.N.PRAKASH Election Petition No. 18 of 2016 and O.A NOS. 42, 43 & 74 OF 2017
Elp.No.18 of 2016
68
Pidarikuppampet, Thirubhuvanani, Pondicherry 605 102.
7.Sundaramoorthy, No.21, T.V.Center Street, Sorappattu Post, Puducherry 605 501.
8.Peru.Pandiyan, No.118, A.K.Nagar, North Street, Kalitheerthatlkuppam, Madhagadipet post, Puducherry – 605 107. 9.G.Boomilingam, No.2, Pallarpalli Street, Suthukenipet, Puducherry 605 502.
10.E.Ananthavel, No.21, Mariamman Koil Street, Vinayagampet, Sorapattu post, Puducherry.
11.E.Egambaram, No.29, First Cross, Sungothiamman Koil Street, Orleanpet, Puducherry 605 005. 12.S.T.Paramasivam Alias Cale, No.8, M.G.R.Nagar, Pillaiyarkuppam, Thondamanatham post, Puducherry. 14.S.Komala, No.7, Annai Therasa Nagar, 3rd Cross street, Moolakulam, Puducherry. ... Respondents
The Election Petition praying that this Hon'ble Court be pleased to
(a) Declare the election of the 1st respondent as https://hcservices.ecourts.gov.in/hcservices/ returned candidate from 2-Thirubhuvanai Assembly
69
Constituency (S.C.), Puducherry at the general election held on 16.05.2016 accepting the nomination papers of the 1st respondent as null and void; and
(b) Declare the petitioner herein as duly elected member of the legislative assembly from 2-Thirubhuvanai Assembly Constituency (S.C.), as he has secured next higher
votes to the 1st respondent/returned candidate as per section 101 of the Representation of People Act, 1951; and
(c)Direct the respondents to pay the cost of this Election Petition.
OA.Nos.42, 43 & 74 of 2017
... Applicants/ Respondents 4,3 & 2 Vs 1.P.Angalane,
Puducherry 605 102.
3.L.Kalivarathan,
70
No.10, Vaikkal Street, D.B.G.Nagar, Kalitheerthalkuppam, Madhagadipet Post, Puducherry 605 107.
4.M.Sankar @ Vadivelan, No.3, Anganwadi Street, Pidarikuppampet, Thirubhuvanani, Pondicherry 605 102.
5.Sundaramoorthy,
No.21, T.V.Center Street, Sorappattu Post, Puducherry 605 501.
6.Peru.Pandiyan,
No.118, A.K.Nagar, North Street, Kalitheerthatlkuppam, Madhagadipet post,
Puducherry – 605 107.
7.G.Boomilingam,
No.2, Pallarpalli Street,
Suthukenipet,
Puducherry 605 502.
8.E.Ananthavel,
No.21, Mariamman Koil Street,
Vinayagampet,
Sorapattu post, Puducherry.
9.E.Egambaram,
No.29, First Cross,
Sungothiamman Koil Street, Orleanpet,
Puducherry 605 005.
10.S.T.Paramasivam Alias Cale,
No.8, M.G.R.Nagar, Pillaiyarkuppam, Thondamanatham post, Puducherry.
11.S.Komala,
No.7, Annai Therasa Nagar, 3rd Cross street,
Moolakulam, Puducherry. ... Respondents/Respondents https://hcservices.ecourts.gov.in/hcservices/
This Original Application No.42 of 2017 praying that
71
this Hon'ble Court be pleased to strike off the 2nd Respondent as Respondent in the Election Petition No.18 of 2016.
This Original Application No.43 of 2017 praying that
this Hon'ble Court be pleased to strike off the 3rd Respondent as Respondent in the Election Petition No.18 of 2016.
This Original Application No.74 of 2017 praying that
this Hon'ble Court be pleased to strike off the 4th Respondent as Respondent in the Election Petition No.18 of 2016.
The above Election Petition and Original Application
having been heard on 11.12.2017 before this Court in the
presence of Mr.S.Sathiaseelan, advocate for the Election Petitioner/1st Respondent, Mr.G.Masilamani, Senior Counsel for Mr.T.Sathiyamoorthy, Advocate for the 1st respondent/2nd
respondent and Mr.Niranjan Rajagopalan, advocate for M/s.G.R.Associates, advocates for the respondents 2 to
4/applicants 1 to 3 on OA.Nos.42, 43 & 74 of 2017 herein;
and upon reading the petition, affidavit and Reply affidavit of P.Angalane and counter affidavit of B.Kobiga filed herein and Judges summon and affidavit of Dr.V.Candavelou, filed herein and the common counter affidavit of P.Angalane filed in OA.Nos.42, 43 & 74 of 2017
and the evidence adduced therein and the exhibits marked
thereon and this court having stood over for consideration https://hcservices.ecourts.gov.in/hcservices/
till this date and coming on this day before this court for
72
orders and this Court having observed that this Tribunal did not pass any separate orders in these Original Application, because, that would have resulted in delay in the proceedings as the Registry would be required to carry out corrections and amendments in the pleadings and
IT IS ORDERED AS FOLLOWS :
(i)That the ELP.No.18 of 2016 be and is hereby dismissed as being devoid of merits.
JUSTICE, HIGH COURT AT MADRAS, AFORESAID THIS THE 5TH DAY OF JANUARY 2018.
COURT OFFICER (O.S.)
From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this
73
cns – 29.01.2018
ELP.NO.18 OF 2016
AND
OA.NOS.42, 43 & 74 OF 2017
DECREE
DATED:05/01/2018
THE HON'BLE MR. JUSTICE
P.N.PRAKASH
FOR APPROVAL: 31/01/2018
APPROVED ON : 31/01/2018
Copy to:
1.The Speaker
Tamil Nadu Assembly
(Through Secretary
Tamil Nadu Legislative
Assembly Constituency
Chennai – 600 002
2.The Election Commission
of India
Through the Secretary,
New Delhi
2 issues framed by the court
Does timely submission of Forms A and B to the Returning Officer constitute substantial compliance despite non-submission to the Chief Electoral Officer?
Did the petition plead material facts showing that non-submission of Form A materially affected the result insofar as it concerned the returned candidate?
Colour shows how this judgement treated each authority
Roop Lal Sathi vs. Nachhattar Singh GillDistinguished¶485
Roop Lal Sathi vs. Nachhattar Singh Gill (1982) 3 SCC 487] · Who else cites this
Ramesh Rout vs. Rabindra Nath RoutDistinguished¶508
Ramesh Rout vs. Rabindra Nath Rout (2012) 1 SCC 762 · Who else cites this
Jitu Patnaik vs. Sanatan Mohakud & OthersDistinguished¶624
Jitu Patnaik vs. Sanatan Mohakud & Others (2012) 4 SCC 194 · Who else cites this
Ram Phal Kundu vs. Kamal SharmaDistinguished¶545
Ram Phal Kundu vs. Kamal Sharma (2004) 2 SCC 759 · Who else cites this
Krishna Mohini vs. Mohinder Nath SofatDistinguished¶547
Krishna Mohini vs. Mohinder Nath Sofat (2000) 1 SCC 145 · Who else cites this
Rafiq Khan & another vs. Laxmi Narayan SharmaReferred¶283
Rafiq Khan & another vs. Laxmi Narayan Sharma (1997) 2 SCC 228 · Who else cites this
Mathura Prasad vs. Ajeem KhanReferred¶284
Mathura Prasad vs. Ajeem Khan (1990) 3 SCC 659 · Who else cites this
Harish Tandon vs. Additional District Magistrate, Allahabad, U.P. & othersReferred¶286
Harish Tandon vs. Additional District Magistrate, Allahabad, U.P. & others (1995) 1 SCC 537 · Who else cites this
Ittinam and others vs. Cherichi @ PadminiReferred¶287
Ittinam and others vs. Cherichi @ Padmini (2010) 8 SCC 612 · Who else cites this
A.C. Jose vs. Sivan Pillan and OthersReferred¶289
A.C. Jose vs. Sivan Pillan and Others (1984) 2 SCC 656 · Who else cites this
Harikrishna Lal vs. Babu Lal MarandiReferred¶290
Harikrishna Lal vs. Babu Lal Marandi (2003) 8 SCC 613 · Who else cites this
Narbada Prasad vs. Chhaganlal and OthersReferred¶293
Narbada Prasad vs. Chhaganlal and Others [AIR 1969 SC 395] · Who else cites this
Chief Information Commissioner and another vs. State of Manipur and anotherReferred¶294
Chief Information Commissioner and another vs. State of Manipur and another (2011) 15 SCC 1 · Who else cites this
Resurgence India vs. Election Commission of India and anotherReferred¶295
Resurgence India vs. Election Commission of India and another (2014) 14 SCC 189 · Who else cites this
Uma Ballav Rath vs. Maheswar MohantyReferred¶320
(1999) 3 SCC 357 · Who else cites this
Mangani Lal Mandal vs. Bishnu Deo BhandariReferred¶320
(2012) 3 SCC 314 · Who else cites this
Ram Sukh vs. Dinesh AgarwalReferred¶324
Ram Sukh vs. Dinesh Agarwal (2009) 10 SCC 541 · Who else cites this
Prakash Khandre vs. Vijayakumar KhandreReferred¶326
(2002) 5 SCC 568 · Who else cites this
Jagjit Singh Vs. Dharam Pal Singh and OthersDistinguished¶402
Jagjit Singh Vs. Dharam Pal Singh and Others [1995 Supp (1) SCC 422] · Who else cites this
Haryana Financial Corporation vs. Jagdamba Oil MillsRelied on¶395
Haryana Financial Corporation vs. Jagdamba Oil Mills [(2002) 3 SCC 496] · Who else cites this
Quinn vs. LeathemRelied on¶395
Quinn vs. Leathem [1901 AC 495]
Rajindra Singh vs. State of U.P. and anotherRelied on¶395
Rajindra Singh vs. State of U.P. and another [(2007) 7 SCC 378] · Who else cites this
Nazir Ahmad vs. King EmperorDistinguished¶559
Nazir Ahmad vs. King Emperor [AIR 1936 PC 253] · Who else cites this
Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari and anotherExplained¶633
[(2014) 5 SCC 312] · Who else cites this
Jyoti Basu and others vs. Debi Ghosal and othersReferred¶697
[(1982) 1 SCC 691] · Who else cites this
8 provisions across 5 enactments
P.Angalane
B.Kobiga
The Returning Officer-I, 2-Thirubhuvanai Assembly Constituency (S.C.)
The Chief Electoral Officer
The Chief Election Commissioner
L.Kalivarathan
P.N.PRAKASH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
