KAMENG DOLO versus ATUMWELLY

15. In view of the aforesaid analysis, it opined that the election had been materially affected and accordingly declared the election result dated 15.03.2014 as void under Section IOO(!)(d)(iv) of the Act. Being of this view, it allowed the election petition.

16. At the commencement of the hearing, we have heard Mr. Soli Sorabjee, learned senior counsel and on the adjourned date, Mr. Preetesh Kapur, learned counsel for the appellants addressed the Court. We have heard Mr. C.A. Sundaram and Mr. Subramonium Prasad, learned senior counsel for the respondent.

17. Before we delve into the legal position, the statutory provisions are to be kept in view. Part V of the Act deals with the conduct of elections. Section 30 provides for appointment of date for nomination. Section 31 stipulates that Returning Officer shall give notice of the intended election in such form and manner as may be prescribed inviting nominations of candidates for such election and specifying the place at which the nomination papers are to be delivered. Section 32 deals with the nomination of candidates for election and Section 33 provides for presentation of nomination paper and requirements for a valid nomination. Section 33A postulates what information the candidates shall furnish apart from any information which he is required to furnish under the Act or the Rules framed hereun.der. Be it noted, Section 33A came into force with effect from 24.8.2002. It is also worthy to note here that Section 33B was inserted stating that candidate to furnish information only made under the Act and the Rules vide Amendment Act 72 of2002 with effect from 2 .5 .2002, but that has been struck down as unconstitutional by this Court in People '.S' Union for Civil Liberties v. Union of India2s. Section 34 deals with deposits and Section 35 provides for notice of nominations and the time and place of their scrutiny and Section 36 deals with scrutiny of nominations. As has been held earlier, it is an admitted position that the nomination papers of the appellant and the respondent were scrutinised and they were found to be valid. "(2003) 4 sec 399 KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.]

18. Section 37 of the Act is the provision that calls for interpretation in this case. The said Section reads as follows:- "3 7. Withdrawal of candidature.- ( I) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed B and shall be subscribed by him and delivered before three O'clock in the afternoon on the day fixed under clause ( c) of section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate. (2) No person who has given a notice of withdrawal of his candidature under sub-section (I) shall be allowed to cancel the notice. c (3) The returning officer shall, on being satisfied as to the genuineness ofa notice of withdrawal and the identity of the person D delivering it under sub-section(!), cause the notice to be affixed in some conspicuous place in his office."

19. On plain reading of the said provision, it is clear as crystal that a candidate is entitled to withdraw the candidature by notice in writing and the said notice shall contain such particulars as may be prescribed and the said notice shall be signed by him and delivered before three O'clock in the afternoon on the date fixed under Clause (c) of Section 30 to the Returning Officer. Clause ( c) of Section 30 reads as follows:- "( c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday"

20. Thus, the candidate has to comply with the Clause (c) of Section 30 and the notice has to be in writing, it shall contain such particulars as may be prescribed and it shall be subscribed to him and delivered as stipulated under Clause ( c) of Section 30 to the Returning Officer. The said notice, as sub-section(!) of Section 37 lays down, is to be delivered to the Returning Officer either by the candidate in person or by his proposer or election agent who has been authorised in this behalfin writing by such candidate. Be it noted, sub-section (2) of Section 37 prescribes that no person who has given a notice of withdrawal of his candidature under sub-section ( l) shall be allowed to cancel the notice. That reflects the sanctity of withdrawal by a candidate. Sub-section (3) of Section 37, as is manifest, makes it obligatory on the part of the Returning Officer to be satisfied as to the genuineness of the notice of withdrawal and the identity of the person delivering it. Thereafter, he shall cause the notice to be affixed in some conspicuous place in his office.

21. In the case at hand, from the evidence of the Returning Officer, it is explicit that withdrawal of the candidature was not made by the candidate or by his proposer or his election agent. The evidence of the c Returning Officer reads as follows. "26.03.2014 was the last date for withdrawal for nomination. On that date around 1100 hrs., I received a duly filled Form No. 5 i.e., a notice for withdrawal through fax from Sri Atum Welly, BJP candidate for 12 Pakke Kesang Legislative Assembly Constituency, but I did not take cognizance of the same. Thereafter, I received a telephonic call from Dr. Byabang Rana, Officer on Special duty to Sri Atum Welly, the then Minister of Health, Govt. of Arunachal Pradesh, requesting me to a:ccept the withdrawal ofnomination of Sri Atum Wdly, as according to Dr. Byabang Rana the said Form No. 5 was signed by Sri A tum Welly in the presence of Dr. Byabang Rana." xxxxxxxx "Since I know Sri Sanjeev Tana personally, I also know that during the relevant point of time i.e. 2014 Arunachal Pradesh Legislative Assembly election, Sri Tana Sanjeev was neither a proposer nor the election agent of Sri Atum Welly for 12 Pakke Kesang (ST) Legislative Assembly Constituency. Under the law, it is only either the candidate personally, the proposer or election agent duly authorised by candidate are competent and eligible to file Form No. 5 for withdrawal of nomination of a candidate."

22. From the aforesaid evidence, it is quite luminous that neither the candidate delivered the notice of withdrawal nor his proposer nor his election agent and there was no authorisation for the same to the proposer or election agent. To elucidate, ifthe candidate gives the notice himself ascribing to it, there can be no confusion. The only thing that the Returning KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] Officer has to see is to verify the identity of the candidate and genuineness A of the signature. The other two categories who can issue the notice has to satisfy certain conditions precedent. The notice has to be in writing, the proposer or the election agent must be in that capacity and they must have been authorised in this behalf in writing by such candidate. In the present case, there has been total non-compliance of Section 3 7 of the Act.

23. The seminal question that emanates for consideration is what is the effect of acceptance of such withdrawal of the candidature that is in total non-compliance with the law. Mr. Sorabjee argued that though withdrawal of the candidature is treated to be non-compliant with the statutory provisions, yet it is obligatory on the part of the elected candidate to satisfy the court or the election tribunal that it has materially affected the election. The said argument was carried forward by Mr. Kapur on the next date. Emphasis has been laid on Section l 00 of the Act. Section l 00 of the Act deals with the grounds for declaring election to be void. For apposite appreciation, the provision is reproduced in entirety: "l 00. Grounds for declaring election to be void.- (!) Subject to the provisions of sub-section (2) ifthe High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government ofUnion Territories Act, 1963 (20 of1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or ( d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- . (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or c [2017) 5 S.C.R. (iii) by the improper reception, refusal or rejection ofany vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied- ( a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; ( c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."

24. It is submitted by the learned counsel for the appellant that Section I 00( I)( d) is inextricably connected with the concept and election being materially affected and unless that is proven or established, an • election cannot be set aside. In this regard, learned counsel for the appeliant has commended us to certain authorities and we shall refer to the same.

25. In Mangani Lal Manda/ (supra), this Court was dealing with an appeal arising from the judgment passed by the High Court of Patna where the election of the appellant was set aside. To set aside the G election, the High Court heavily placed reliance upon two decisions of this Court, namely, Unio11 of l11dia v. Association for Democratic Reforms26 and People's Union for Civil Liberties (supra) and held that suppression of facts by the returned candidate with regard to the assets and liability of his first wife and dependent children born in that wedlock 2' c2002i s sec 294 KAMENG DOLO v.·ATUM WELLY [DIPAK MISRA, J.] was breach of Article l 9(l)(a) and for such breach and non-compliance A the candidate who had not complied with and breached right to information of electors and on the election to suffer consequence of such non- compliance and breach and accordingly set aside the election. This Court, after reference to Section 1 OO(d)(iv) came to hold as follows:- "! 0. Areading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a returned candidate is alleged to be guilty of non-compliance with the provisions'ofthe Constitution or the 1951 Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it concerned the returned candidate has been materially affected by such breach c or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non- compliance as well as establish that the result of the election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non-compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder has materially affected the result of the election before the election of the returned candidate could be declared void. 11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section lOO(l)(d)(iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section lOO(l)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section lOO(l)(d)(iv). For the election petitioner to succeed on such ground viz. Section IOO(l)(d)(iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support c from the three decisions of this Court in: (1) Jabar Singh v. Genda La/27; (2) L.R. Shivaramagowda v. TM Chandrashekar28; and (3) Uma Ballav Rath v. Maheshwar Mohanty29." 26. After so holding, the Court opined that in the entire election petition there was no pleading at all that suppression of the information by the returned candidate in the affidavit filed along with nomination papers with regard to first wife and dependent children from her and non-disclosure of that assets and liabilities materially affected the result of the election. 27. The analysis of the aforesaid dictum makes it graphically clear that to sustain the ground as stipulated under Section lOO(l)(d)(iv), the election petitioner is required not only to plead and prove the ground but also to establish that the result of the election of the returned candidate concerned has been materially affected. In this context, it is frnitful to refer to the law enunciated in Santosh Yadav v. Narender Singh 30 • In the said case, there were 17 candidates including the appellant and the respo!!dent who remained in the fray of contest in the constituency in question. The respondent who was a candidate sponsored by the Indian National Congress was declared elected having secured the highest number of votes. The appellant was the candidate sponsored in .Indian National Lok Dal who secured second highest number of votes and there was a margin of334 votes between them. In the election petition filed by the appellant before the High Court, one of the grounds taken in the election petition was that nomination of Narender Singh was improperly accepted as he had been convicted under Section 30B and Section 498A IPC and was sentenced to undergo rigorous imprisonment for seven years and one year respectively apart from fine. Be it noted, the High Court, in appeal, had suspended execution of the sentence of imprisonment. The learned designated Election Judge of the High Court refused to set aside the election of the respondent as, in his opinion, the election petitioner had failed in discharging the onus of proof that the result of the election insofar as it concerns the respondent, the returned candidate, had been materially affected. This Court posed the question whether the High Court was right in forming the opinion that on established facts and circumstances of the case, the appellant had failed 27 AIR 1964 SC 1200 " < 1999) 1 sec 666 "< 1999) 3 sec 357 Jo (2002J 1 sec 160 KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] in proving that the election of the respondent was materially affected by improper acceptance of the nomination papers ofNaresh Yadav. Dealing with the same, the Court held: "9. A few decisions were cited at the Bar and it will be useful to make a review thereof. In Vashist Narain Sharma v. Dev Chandra31 the candidate whose nomination was improperly accepted had secured 1983 votes while the margin of votes between the winning candidate and the next-below candidate was 1972. This Court held that having been called upon to record a finding that "the result of the election has been materially affected", the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that wasted votes would have been so distributed between the contesting candidates as would have brought about the defeat of the returned candidate. The Court emphasized the need of proof by affirmative evidence and discarded the test of a mere possibility to say that the result could have been different in all probability. The question is one of fact and has to be proved by positive evidence. The Court obst–rved that the improper acceptance of a nomination paper may have, in the result, operated harshly upon the petitioner on account of his failure to adduce the requisite positive evidence but the Court is not concerned with the inconvenience resulting from the operation of the law. The Court termed it "impossible" to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. In Samant N. Balkrishna v. George Fernandez this Court recognized that proof of material effect on the result of the election insofar as a returned candidate is concerned on account of a miscarriage occasioned by improper acceptance of nomination paper at an election may be a simple impossibility. The Judge has to enquire how the election would have gone if the miscarriage would not have happened and that enquiry would result virtually placing the election not in the hands of the constituency but in the hands of the Election Judge. The Court held that neither could the matter be considered on possibility nor was there any room for a reasonable judicial guess. The law "AIR 1954 SC 513 c requires proof; how far that proof should go or what it should contain is not provided by the legislature; but the insistence on proof cannot be dispensed with. In Shiv Charan Singh v. Chandra Bhan Singh 32 this Court pointed out that proof of material effect on the result of the election in a case ofimproper acceptance of nomination paper involved the harsh and difficult burden of proof being discharged by the election petitioner adducing evidence to show the manner in which the wasted ballots would have been distributed amongst the remaining validly nominated candidates and in the absence of positive proof in that regard the election must be allowed to stand and the court should not interfere with the election on speculation and conjectures." 28. Thereafter, the Court referred to Tek Chand v. Dile Ram33 wherein it has been held that: " .. the mere fact that the number of votes secured by a candidate whose nomination paper was improperly accepted, was greater (more than three times in that case) than the margin of the difference between the votes secured by the returned candidate and the candidate securing the next higher number of votes, was not by itself conclusive proof of material effect on the election of the returned candidate." 29. Thereafter, the Court summed up the law as regards the result of ele~tion having been materially affected in case of improper acceptance of nomination papers. They are as follows:- "2. Merely because the wasted votes are more than the dirference of votes secured by the returned candidate and the candidate securing the next highest number of votes, an inference as to the result of the election having been materially affected cannot necessarily be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner. 3. The burden of proving such material effect has to be discharged by the election petitioner by adducing positive, satisfactory and cogent evidence. If the petitioner is unable to adduce such evidence the burden is not discharged and the election must stand. This rule may operate harshly upon the petitioner seeking to set aside "(1988) 2 sec 12 " c2001) 3 sec 290 KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] the election on the ground of improper acceptance of a nomination A paper, but the court is not concerned with the inconvenience resulting from the operation of the law. Difficulty of proof cannot obviate the need of strict proof or relax the rigour of required proof. 4. The burden of proof placed on the election petitioner is very strict and so difficult to discharge as nearing almost an impossibility. There is no room for any guesswork, speculation, surmises or conjectures i.e. acting on a mere possibility. It will not suffice mP-rely to say that all or the majority of wasted votes might have gone to the next highest candidate. The law requires proof. How far that proof should go or what it should contain is not provided by the legislature. 5. The casting of votes at an election depends upon a variet)' of factors and it is not possible for anyone to predicate how many or which proportion of the votes will go to one or the other of the candidates. It is not permissible to accept the "ipse dixit" of D witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on 1>ome supposed or imaginary ground." 30. After such summation, the Court analysed the materials on record and concurred with the view of the High Court that the appe!Iant, election petitioner, had failed in discharging the heavy burden which lay on her of proving that the result of election, insofar as it concerns the returned candidate, had been materially affected by improper acceptance of the nomination ofShri Naresh Yadav. 31. To sustain the conclusion of the High Court, the Court analysed the evidence and recorded the following finding:- "It needs hardly any evidence to hold, as one can safely assume that the appellant must have openly and widely propagated herself as INLD candidate and made it known to the constituency that she was the official candidate sponsored by INLD and Shri N aresh Yadav was not an INLD-sponsored candidate and was a defector. Therefore, it is difficult to subscribe to the suggested probability that any voter committed to INLD ideology would have still voted for Shri Naresh Yadav merely because he had for a period of two years before defection remained associated with INLD." c [20 l 7] 5 S.C.R. 32. Learned senior counsel for the appellant has drawn our attention to the authority in Rajendra Kumar Meshram v. Vanshmani Prasad Verma34• In the said case, the two-Judge Bench while dealing with the violation under Section l 00( I)( d) opined:- " 10. Under Section lOO(l)(d), an election is liable to be declared void on the ground of improper acceptance of a nomination if such improper acceptance of the nomination has materially affected the result of the election. This is in distinction to what is . contained in Section IOO(l)(c) i.e. improper rejection of a nomination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did not endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant returned candidate had not filed the electoral roll or a certified copy thereof and, therefore, had not complied with the mandatory provisions of Section 33(5) of the 1951 Act. 11. In other words, before setting aside the election on the above ground, the High Court ought to have catTied out a further exercise, namely, to find out whether the improper acceptance of the nomination had materially affected the result of the electfon. This . has not been done notwithstanding Issue 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e. Issue 6, naturally, it was not empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the nomination of the returned candidate was improper." 33. As we find from the aforesaid two paragraphs, the Court has drawn distinction between improper acceptance of a nomination for such improper acceptance of the nomination has to materially affect the result of the election and the case of improper rejection ofa nomination which itself is .a sufficient ground for invalidating the election without any further requirement of proofor material effect of such rejection on the result of the election. The first one comes under Section lOO(l)(d), the second one comes under Section lOO(l)(c). "(2016) 10 sec 11s KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 34. Relying on the said decision, it is contended by the learned A counsel for the appellant that whether the proof of material effect on the result of the election is required when there is illegal acceptance of a nomination paper. In this context, placing reliance on the decision of Santosh Yadav (supra), he would contend that there is a necessity for proof by affirmative evidence that the result would have been different in all probability and the question being one of a fact, has to be proved by positive evidence. 35. At this stage, we are required to come back to Section 37 of the Act. It is imperative to note here that sub-Section (3) of Section 37 was substituted by Act 40 of 1981. The said provision requires the satisfaction of the returning officer as to the genuineness of the notice of withdrawal and the identity of the person delivering it. The words have their own significance. The language employed in Section 37, as submitted by Mr. Sundaram, learned senior counsel for the respondent, cannot be diluted. Learned senior counsel would submit that ifthere is c no election, the question of materially affecting the election does not arise. It is urged by him that in such a situation, especially in this case, when there are two candidates one from INC who is an elected candidate by default and other from another national party, i.e., BJP, the issue of withdrawal becomes extremely significant. 36. In Rattan Anmol Singh & Ram Prakash v. Ch. Atma Ram and others35 , while dealing with the satisfaction of the returning officer, the Court held: " … when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether. In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the "subscribing" required in the c&se of the candidate himself. If there is no signature and no mark the form would have to be rejected and their absence could not be dismissed as technical and unsubstantial. The "satisfaction" of the Returning Officer which the rules require is not, in our opinion, any the less important and imperative." 37. In this regard, the decision of the Constitution Bench in Surendra Nath Khosla v. S. Dalip Singh36, is of immense significance. "AIR 1954 SC 510 "AIR 1957 SC 242 [2017) 5 S.C.R. In the said case, the returning officer accepted all the nomination papers except that of one Buta Singh who did not take any further steps though his nomination was rejected. One Dalip Singh, the first respondent filed an election petition. The question was referred to the Constitution Bench to determine whether the burden of proof is on the person who seeks to challenge the election and that he must prove that the result of the election has been materially affected by the improper rejection of the nomination paper. Thereafter, the larger Bench, after referring to earlier decisions held that: "A Division Bench of this Court has laid down in the case of Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram37 at p. 842 that the improper rejection of a nomination paper "affects the whole election". A similar view was taken in the case of Karnail Singh v. Election Tribunal, Hissar38, by a Bench of five Judges of this Court. But, as pointed out on behalf of the appellants, in neither of those two cases the relevant provisions of the Act have been discussed. It appears that though the words of the section are in general terms with equal application to the case of improper acceptance, as also of improper rejection of a nomination paper, case law has made a distinction betv:een the two classes of cases. So far as the latter class of cases is concerned, it may be pointed out that almost all the Election Tribunals in the country have consistently taken the view that there is a presumption in the case of improper rejection of a nomination paper that it has materially affected the result of the election. Apart from the practical difficulty, almost the impossibility, of demonstrating that the electors would have cast their votes in a particular way, that is to say, that a substantial number of them would have cast their votes in favour of the rejected candidate, the fact that one of several candidates for an election had been kept out of the arena is by itself a very material consicieration. Cases can easily be imagined where the most desirable candidates from the point of view of electors and the most formidable candidate from the point of view of the other candidates may have been wrongly kept out from seeking election. By keeping out such a desirable candidate, the officer rejecting the nomination paper may have prevented the electors from voting for the best 37 1954SCR817 38 I 0 Elec. Law Reports 189 KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] candidate available. On the other hand, in the case of an improper A acceptance of a nomination paper, proof may easily be forthcoming to demonstrate that the coming into the arena of an additional candidate has not had any effect on the election of the best candidate in the field. The conjecture therefore is permissible that the legislature realising the difference between the two classes of B cases has given legislative sanction to the view by amending Section I 00 by the Representation of the People (Second Amendment) Act, 27 of 1956, and by going to the length of providing that an improper rejection ofany nomination paper is conclusive proof of the election being void. For the reasons aforesaid, in our opinion, the majority decision on the fourth issue is also correct." [emphasis supplied] 38. In this regard, learned counsel for the respondent has drawn our attention to the Constitution Bench decision in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda39• In the said case, there were only twci contesting candidates and one of them was under a statutory disqualification. The Court held that Section 53 of the Act renders the poll necessary if there are more candidates contesting the election than the number of seats contested. The Court distinguished the rule enunciated by the courts in the United Kingdom and stated that same cannot be extendect to the trial of disputes under our election law, for it i3 not consistent with our Indian Statute Law and in any case the conditions prevailing in our country do not justify the application of the rule. Analysing further, where there are only two contesting candidates and one suffers a statutory disqualification, the Court held: " .. When there are only two contesting candidates, and one of F them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the "AIR 1969 SC 604 voters may not, if aware of the disqualification have voted for the disqualified candidate. c And again: "13. The view that we are taking is consistent with the implication of Cl. (b) of Section 101. When in an election petition which complies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained a majority of votes. In case falling under Clause (b) of Section 101 the Act requires merely proof of corrupt practice, and obtaining votes by corrupt practice: it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice. If for the application of the rule contained in Clause (b) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause (a). The votes obtained by corrupt practice by the :eturned candidate, proved to be guilty of corrupt practice, are expressly · excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and no fresh poll is necessary. The same rule should, in our judgment. apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of filling of the nomination [emphasis added] 39. The Constitution Bench in Sure11dra Nath Khosla (supra) has opined that there is a clear distinction between rejection of nomination papers and acceptance of nomination papers. It has stated about the path to follow. In Vishwanatha Reddy (supra), the Court has categorically laid down the distinct principle where there are two candidatts in the G fray. 40. It is unmistakably noticeable from the above enunciation of law that this Court has carved out a separate and distinct principle. Be it noted, it has been clearly held that when there is disqualification existing at the date of filing of nomination paper, and it has been found to be H correct, no fresh poll is necessary. KAMENG DOLO v. ATUM WELLY [DIPAK MISRA, J.] 4 I . The present case has its own distinct characteristics. There were only two candidates in the fray, one from the Indian National Congres3 and the other from the Bhartiya Janata Party. The election petitioner while campaigning came to know that his nomination papers were withdrawn. As a prudent man he lodged an FIR. We are really not concerned with the initiation of criminal action. We are singularly concerned with the interpretation of Section 3 7 of the Act and the illegal acceptance of withdrawal of a candidature by the returning officer. As the provision would reflect, the legislature has provided number of safeguards before exercising the authority for acceptance of withdrawal of a candidate. The language employed in Section 37 of the Act is absolutely plain, unambiguous and unequivocal. It only admits of a C singular interpretation. It is because the intention of the Parliament is that due care and caution has to be taken in letter and spirit so that no confusion is created. The issue of alert and careful exercise gains mor1 significance when there are two candidates and that too from twq National Parties. From this, it may not be understood, there will be any difference if there are two candidates, one from a National Party and the other from a regional party. The emphasis is on "two candidates" because if one's withdrawal is allowed in complete violation of the statutory provision, the other candidate gets automatically declared elected, for there is no election, no contest. 42. When there is no contest, and a desirable candidate for some reason is kept out of fray, the principle laid down in Vishwanatha Reddy (supra) has to be made applicable. We are disposed to think so, when in transgression of the statutory provision, a candidate's candidatl're is allowed to be withdrawn, it will tantamount to sacrilege of democracy. That is why, the mandate of Section 37 of the Act has been so carefully worded. The legislature has taken pains to provide safeguards since illegal acceptance of withdrawal has the potentiality to destroy the base of demoi::racy and corrode its primary roots. The principle stated in Krishnamoorthy v. Sivakumart0, are to the effect that the sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held and freedom in the exercise of the judgment which engulfs a voter's right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage, are never to be eroded. "(201 s) 3 sec 467 (2017] 5 S.C.R. The responsibility of a returning officer being statutorily significant, he has to keep himself alive to every facet and not act in a manner that will create a dent or hollowness in the election process. 43. In view of the aforesaid, there is no merit in this appeal and the same stands dismissed. There shall be no order as to costs. Kalpana K. Tripathy Appeal Jismissod.