REGISTERED No. D.L. 33001/99
The Gazette of India
PUBLISHED BY AUTHORITY
No 26] NEW DELHI, SATURDAY, AUGUST 25, 2001/BHADRA 3, 1923 Separate Paging is given to this Part in order that it may be filed
as separate compilation.
PART II—Section 3—Sub-section (iii)
Orders and Notifications issued by Central Authorities (other than the Administrations of Union Territories)
(299)
2498 GI/2001—1300' THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART I I ^ - S E C. 3iiii)l ELECTION COMMISSION Ol INDIA Now Delhi, t h: 13th July, ?00l
O.N. 107.—In pursuance of Section 106 of'he Representation of the People Act, 1951 (43 of 1951 \ the Election Commission hereby publishes the order of the High Court of Kumiitaka, Bangalore both tin; dated 22-09-2000 in Election Petition Nos. 7 & 23 of 1999.
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
Dated this the 22nd day or September, 2000
BEFORE
THE HON'BLE MR. JUSTICE R.V. RAVEENDRAN Election Petition Nos. 7 & 23 of 1999 In EP No. 7 of 1999
BETWEEN :
1. U.K. Swamy
S/o Kadegowda Age 49 years Uyyamballi Hobli Kanakapura Taluk Bangalore Rural District
—Petitioner (My Sri M. Veerabhadruiah &
Sri ML R. Rajagopal)
AND
1. The Returning Officer/
Deputy Commissioner No. 11 Kanakpuia Parliamentary Constituency Podium Block Vishweswarajah Towers Vidhana Veedhi Bangalore
2. Shri M.V. Chandrashekar Murthy
S/o M.V. Venkatappa Aged 58 years Parliamentary Contitutency R/O Pete Malavalli Town % Mnndya DKst Also at" M.V. Chandrashekar Murthy Member of Parliament
No. 5,, Church Road Shanti Nagar
• Bangalore —Respondents (By Sri H..I. Sundarkiwnar Aga, For R l; Sri Venkateshwar N.K. And
Ms. Madhuniita Hagachi, Adv,, for For R 2;) Election Petition is filed under section 81 o The Representation of People Act, 195), by the peti- tioner candidate for election constituency as mem- ber of parliament for No. 11, Kanakapura Parliamentary Constituency held in August/September 1999 praying as follows :
(a) Call for records, pertaining to pre-election process i.e., from date of declaration of calender of events, till the date of rejection of nomination of petitioner pertaining to No. 11, Kanakpura Parliamentary Consti- tuency;
(b) Call for other records relating to granting of copies, certified copies to petitioner, including original file containing the orders, endorsements and note? if any, from the custody of returning officers and
(c) Declare that rejection of nomination paper of the petitioner is improper and illegal pertaining io No. Jl, Kanakpura Parliamen- tary Constituency and consequently dec- lam the election of second respondent as declared under form No- 21C, as null and void.
E,P. No. 23 of" 1999
BETWEEN
J. Shank are Gowda
S/o Puttaswamy Gowda Age : 35 yrs R/o Mylanayakana Hosahalli Chennapatna Taluk Bangalore Rural District
., . .Petitioner (by Sri K.N. Subba Reddy, Advocate") AND :
1. M. V. Chandrashekhara Murthy
S/o M:V. Ventkatappa Ago 58 yrs R/o Petemalavalli Mandyaj and, also No. 5 Church Road Shantinagar, Bangalore-37
2. U.K. Swiimy
S/o Kadegowda Age : 49 yrs R/o Uyyamballi Village Alahalli post Kanakpura Taluk Bangalore Rural District 3. H,D. Kumaraswamy S/o H.D. Devegowda Ago : 38 yrs R/o No. 286, Mini Forest Road 2nd Main, J.P. Nagar 111 Phase, 'Bangalore
4. M. Srinivas
S/o. Mumswamappa
Ago : 58 yrs, R/o No. 8, 4th cross, 7th Block Jayanagar, Bangalore
5. Brahmananda
S/o U. Nagaiah • Age 32 yrs R/o No. 158, Koramangala Village Bangalore-95
6. Veerappa
S/o Guddathiramaiah Age 55 yrs.R/o No. 13 Kallipalya, Maligondanahalli Dhakalc Uduru Hobli , Magadi Taluk Bangalore Rural Distirct
1. The Returning Officer &
Deputy Commissioner, Bangalore Rural To No. 11 Kanakappura Lok Sa'bha Contituency Podium Block Bangalore
. . .. Respondents
(By Sri Venkateshwar N K &
Ms. Madhumita Bagachi Adv., for RI;
Sri M. Veerabharaioih, and
Sri M.R. Rajagopal, Adv., for R2;
Sri D.L. Jagadeesh, Adv., for R3;
Sri H.J. Sundarkumar Aga, For R7 R4 to R6 served and unrepresented) Election Petition fikd on 20-11-1999 under sec- tions 80 and 81 of the representation of people Aci, 11951 by the petitioner through his Advocate Sri K.N. Subba Reddy, praying as follows :
(a) To call for records pertaining 10 the Election process i.e., from the date of-declaration of calender of events till the date of rejectipn of nomination of respondenl No. 2 pertain- ing to No. 11, Kanakapura Farliamontaiy constituency Kanakapura, Bangalore rural District State of Kamataka;
(b) To call for other records including original •file containing the orders, endorsements, Notices, B-forms, nomination paper of res- pondent no. 2, if any in the cusLody of the returning officer for the <.aid conUitutency; and
301 (c) -Declare that tho rejection of nomination of respondent No. .2 ,portaining to the said constkutency as improper and illegal and consequently declare that the election of First respondent as returned candidate to the said constituency as null and \oid.
These Election 'Petitions, having ^been heard anil reserved for orders on 15-9-2000, coming on for •pronouncement of order on this day, the Goutt made the following :
ORDER
These election :petitions challenge the 'Declaration of the result of election of Sri M. V/Chandrashokiira Murthy to the House of (he People, as member representing No. 11, KanaikapuraParliamentaryCons- tituency, -in the elections held in August-September, 1999, (vide Declaration dated 6-10-1999 in Form No. 21C). Election Petition 7 of .1999 -is filed by Sri U. K. Swamy, whose nomination paper was re- jected by the Returning Officer and Election Petition No. 23 of 1999 is filed by a voter in Kanakapura (Parliamentary Constituency. In this 'order the iollowing abbreviations are also used : 'RP Act,-for 'Representation of the People Act, 1951'; ^Rules' for 'Conduct of Election Rules, 1961'; 'Symbol Order' for 'The Election Symbols (Reservation and Allot- ment) Order, 1968'; ' I NC for 'Indian Congress'; and 'JD(s)' for 'Janata Dal (Secular)'.
2. By Notification dated 11-8-T999, the President of India called upon the Parliamentary Constituencies in various States, including the Kanakpura Parlia- mentary Constituency to elect members in accor- dance with the provisions of Representation of the People Act, 1951 ffor short the VR'P Act']. In pursuance of it. Flection Commission of India issued a notification dated 11-8-1999 under Sections 30 and 56 of the RP Act appointing various dates for making nominations, scrutiny of nominations, withdrawal of candidatures, polling and completion of elections. As per the said Notification, the schedule for the said election was as follows :
(a) Last date far filing-nominations 18-8-1999 (b) Date of scrutiny of nominations 19-8-1999 (c) Last date for withdrawal of 21-8-1999 'nominations
(d) 'Date dfPoll 05-9-1999 3. Five nomination papers were received by the Returning Officer on 10-8-1999, out of Which, first two related to Sri M. Srinivas [ candidate of Bhara- tiya Janata Party], third related lo Sri N. Brahma- nanda [ independent ] and' the last two relate to Sri Veerappa [independent]. Another six nomination papers were received on 18-8-1999, of which, first four related to Sri M V Chandrashcknra Murthy"302'"" THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(iii)J Hence, the nomination of Sri U. K. Swamy
is hereby rejected."" Detailed'order" will be issued separately."
[candidate of Indian National Congress] and the other two related to Sri H. D. Kumaraswamy and Sri U. K. Swamy both belonging to Janata Dal (Secular party).
7. A list of validly nominated candidates (
1. H. D. Kumaraswamy —JD (S)
2. M. V. Chandrashekura- —INC
murthy
3. M. Srinivas — RIP
4. N. BrahmananJa — Independent
5. Veerappa ~ Independent 4. The Nominations paper in Form 2(a) consists of five parts. Part 1 is to be signed by a single proposer and to be used where the candidate, is set up by a recognised political party; FarL-11 is to be used where the candidate is not set up by a recog- nised political Party, in which event, the proposers should be 10 in number. Part-]II contains the de- claration to be made by the candidate; Part;TV con- tains the endorsement to be made by the Returning Officer, noting the time and date of receipt of the nomination paper at his office; and Part-V relates to the decision to be recorded by the Returning Officer either accepting or rejecting the nomination paper.
The Returning Officer also passed a reasoned order (No. ELN 16/1999-2000) dated 19-8-1999, wherein he considered the tvvo contentions urged the Advocate for U. K. Swamy, who appeared before him : (i) that the nomination of U. Kl Swamy should be accepted; and (ii) in the alternative the scrutiny of his nomi- nation should be postponed till the expiry of the time stipulated for withdrawal of candidatures. He rejec- ted the contentions and rejected the nomination paper of U. K. Swamy as a candidate set up by JD (S). Feeling aggrieved by the rejection of his nomination paper, U. K. Swamy filed a Review Petition dated 21-8-1999 [termed as Revision Petition] before the Returning Officer to review of the said order dated 19-8-1999 and accept his nomination and allow him to contest the election as the official substitute candi- date of JD (S). After hearing, the Returning Officer, by order dated 21-8-1999, rejected the said petition of U. K. Swamy on the ground that a application was not maintainable.
5. The nomination of U. K. Swamy in the Nomi- nation paper dated 18-8-1999 was made in Part-I with one proposer and not in Part-H which requires 10 proposers. In Part-UT of the nomination paper, U. K. Swamy declared that he had been set up by Janata Dal (Secular), a recognised national party and requested that the symbol reserved for the said party [Kisan Driven Tractor] be allotted to him. It is claimed, by U. ft. Swamy that the Nomination paper was accompanied by Forms A and B under the Election Symbols (Reservation and Allotment) Order 1968. Form B was a notice by his political party that H. D. Kumaraswamy was the approved candi- date and U. K. Swamy was its substitute candidate who will step in, on the approved candidate's nomi- nation being rejected on scrutiny, or on his with- , drawing from the contest, if the substitute candidate is still a contesting candidate. Form 'A' was the communication containing the name and specimen signature of the person authorised by the party who could send a notice in Form B.
8. Thereafter, polls were held on 5-9-1999 and Form No. 20 [Consolidated Result Sheet] and Form No. 21(e), dated 6-10-1999 [ Return of election ] were issued which disclose the number of votes secured by each of the (ivr candidates as follows :
Name of the
SL No.
candidate
Name of political party
No. of votes polled
H. D. Kurnaraswamy
1.
JD(S) 1,62,465 6. The nomination papers received were taken up for scrutiny on 19-8-1999. On such scrutiny, the nomination of five other candidates including H. D. Kumaraswamy, the approved candidate of Janata Dal (Secular) party was accepted. As a consequence, the nomination paper of U. K. Swamy was rejected by the Returning Officer, by making the following endorsement on his nomination paper :
2.
INC
5,33,652
M. V. Chandrashekara IVIurthy
M. Srinivas
3.
BJP . 4,99,101 "I have examined this nomination paper in accordance with Section 36 of the Representation of the People Act, 1951 and decide as follows :
N. Brahmananda
4.
(IND)
6,253
Veerappa
5.
(1ND)
33,327
In view of the above, the Returning Officer declared ML V. Chandfashekar Murthy as duly elected to fill the Kanakapura Parliamentary Constituency seat. Accordingly, a Declaration ot result of election [ in Form 21C] was also issued on 6-10-1999 by the Since the nomination of Sri H. 0- Kumara- swamy, indicated as main candidate set up by Janata Dal (Secular) is accepted, the nomination • of Sri U. K. Swamy, set up as substitute candidate by the party is liable to be rejected in view of the clarification contained in clause (vii) of para 10.3 of Chapter VI of Hand Book for Returning Officer (1998).
303 Returning Officer, declaring Sri M. V, Chandrashekur Murthy as the elected candidate fronn. No. 11- Kanakapura parliamentary Constituency.
expiry of the time stipulated for withdrawals. As the amended Form-B contemplates the substitute candi- date stepping in as the approved candidate, on the withdrawal by the approved candidate, and as the approved candidate had line till 3 P.M. on 21-8-1999 to withdraw his candidature, the substitute candi- date's (U, K. Swamy's) nomination paper should not have been scrutinised and rejected on 19-8-1999, itself, but ought to have been kept pending till 3.00 P.M. 21-8-1999, and taken up for scrutiny only thereafter.
9. It is stated that the validity of rejection of nomination paper of U. K. Swamy was eballenr-;u in WP No. 30120 of 1999 and the said writ petition was disposed of, reserving liberty to file an election petition, as provided under the law; that subsequently an attempt was made before the Election Commission by filing a petition under Article 324 of the Consti- tution of India, which also became futile.
10. Feeling aggrieved, U. K. Swamy, whose nomi- nation paper was rejected has filed Election Petition No. 7 of 1999, for a declaration that the rejection of his nomination papers is improper and illegal and for a consequential declaration that the election of second respondent (M. V. Chandrashekar Murthy) as declared under Form No. 21C as null and void. The Returning Officer is impleaded as respondent No. 1 and the elected candidate (M. V. Chandra- shekara Murthy) as impleaded as respondent No. 2.
11. One Shankara Gowda, one of the voters of Kanakapura Parliamentary Constituency, has filed Election Petition No. 23 o[ 1999 lor. the very same relief. He has sought a declaration that rejection of nomination paper of Lf. K. Swamy, pertaining to 11-Kanakapura Parliamentary Constituency is im- proper and illegal and consequently, to declare that the election of M. V. Chandrashtkam Murthy as the returned candidate under Form 21C as null and void. Tn the said petition, M. V. Chandrashekaia Murthy is impleaded as respondent No. 1, U. K. Swamy is impleaded as respondent No. 2, the other four candi- dates arc impleaded as respondents 3 to 6 and the Returning Officer is impleaded as respondent No, 7
12. Petitioner in E.P. No. 7/1999 has die follo- wing grounds in support of their election petitions :
12.2 It is alleged by U.K. Swamy that as per the initial arrangement within tho Party [Janata Dal-S], H. D. Kumaraswamy was to bo the main candidate for Kanakapura Parliamentary Consti- tuency and U . K. Swamy was to be candidate for Sathanur Assembly Constituency; that subsequently i.e. after filing of nomination papers of H.D. Kuamra- swamy and U. K. Swamy, for the Kanakapura Parlia- mentary Constituency, H. D. Kumaraswamy filed his nomination papers to contest from Sathanur Assembly Constituency; that H. D. Kumaraswamy expressed his unwillingness to remain as a candidate for the vast Kanakapura Parliamentary Constituency; and therefore, it was decided that U. K. Swamy shall remain as candidate for Kanakapura Parliamentary Constituency and H. D Kumaraswamy will con- centrate for the assembly constituency; but in view of the rejection of nomination paper of U. K. Swamy by the Returning Offiocr, it became necessary for H. D. Kumaraswamy to remain as a candidate for the Kanakapura Parliamentary Constituency and also for Sathanur Assembly Constituency; and that as a result If. D. Kumaraswamy could not concen- trate fully, on cither of the constituencies, and conse- quently JD (S) lost both the Parliamentary and Assem- bly Constituencies to Indian National Congress; and that but for the improper rejection of nomination paper of U, K, Swamy, H. D. Kumaraswamy would have withdrawn from the contest foi Kanakapura Parliamentary Constituency and U. K.. Swamy would have remained as the JD(S) candidate for Kanaka- pura Parliamentary Constituency; and in that event, H. D. Kumaraswamy would have concentrated on Sathanur Assembly Constituency and U. K. Swamy would have concentrated on the Kanakapura Parlia- mentary Constituency, with better prospects and possibilities for U. K. Swamy and H. D. Kumara- swamy to win the elections from Kanakapura Par- liamentary Constituency and Sathanur Assembly Constituency respectively.
12.1 Form B under the Election Symbols (Reser- vation & Allotment) Order, 1968, as it originally stood, read with Clause 13 of the said Order, enabled a substitute candidate to step-in, only on the rejec- tion of the nomination of the approved candidate; consequently when nomination paper of the main candidate was accepted, the nomination paper of the substitute candidate could be rejected. But, the Symbol Order was amended by Election Commission Notification dated 20-5-1999, inserting Clause J3A and modifying Form-B. After the amendment, that is as per the modified Form-B, the substitute candidate will step-in, either on the rejection of the nomination of the approved candidate on scrutiny, or on the withdrawal of the approved candidate from the contest. It is contended that in view of the said amendment to Form-B, the nomination paper of the substitute candidate cannot be rejected until the
12.3 The Returning Officer committed seiious infractions in rejecting the nomination paper of U. K. Swamy and the reasons assigned by the Returning Officer to reject the nomination paper is beyond what is provided in law.
304 THE GAZETTE OF INDIA:AUGUST 25, 2001/BHADRA 3, 1923 [PART H - S E C. 3(iii))would have been treated as nomination of an inde- pendent candidate; and that as only one proposer- had subscribed the nomination of U. K. Swamy, as a JD(S) candidate, and as admittedly he was only a substitute candidate as per Form-B issued by the JD(S) Party, his nomination had to be rejected on the approval of the nomination of the approved main candidate.
13. Similar contentions ate urged in Ep No. 23 of 1999. An additional contention is raised to .the effect that the nomination of a substitute candi- daie, belonging to a recognised political party, .com- prising of a single proposer which was valid when •filed on 18-8-1999, can not become invalid on 19-8- 1999 and therefore the nomination could not have .been rejected having regard to the provisions of the R.P. Act.
16, On the above said pleadings,, the following
issues were framed in EP No. 7 of 1999 :
" 1. Whether the rejection of the nomination of the petitioner (in regard to Kanakapura Par- liamentary Constituency) is incorrect and in- valid?
2. Whether having regard to the provisions of the Election Symbols (Reservation and /\Uot- ment) Order, 1968 (as amended by notification dated 20-5-1999), the Returning Officer could reject the nomination of a substitute candi- date only after expiry of the time provided for withdrawal?
3. Whether the first respondent (Returning Offi-
cer) is a necessary party?
4. Whether the election of second respondent is illegal and vitiated by the rejection of the nomination of petitioner."
In EP 23 of 1999, the following istues were fram-
ed :
"L Whether the rejociion of the nomination of the sccord resjxrdmt (in regard to Kanaka- pura Parliamentary Constituency) is incorrect and invalid ?
2. Whether having regard to the provisions of the Election Symbols (Reservation and Allot- ment) Order, 1968 (as amended by notification dated 20-5-1999), the Returning Officer could ' reject tie nomination of a substitute candi- date only after expiry of the time provided for withdrawal?
3. Whether the seventh respondent (Returning
Officer) is a necessary party?
14. The p'etitions are resisted by the. Returning Officer. At the outset, he has stated that he is not a necessary party to the proceedings. He has also contended that he scrutinised the nomination paper of H. D. Kumaraswamy, who is the approved (main) .candidate of JD(S) and found it in order and there- fore accepted it; that as the nomination papor of H.D. Kumaraswamy was accepted as JD(S) candidate, ihe nomination paper of U. K. Swamy, who was the substitute candidate of JD(S) with a single pro- poser, had to be rejected on the day of scrutiny itself, having regard to the provisions of Section 36 of the RP Act and the procedure laid down by the Election Commission of India in the Hand Book for Returning Officers. It is contended that the Returning Officer is required to prepare a list of validly nominated candidates under Section 36(8) of R.P. Act .immediately after nomination papers are scrutinised and • decisions accepting or rejecting the same ,have been recorded; and immediately ihere aftei he is required to allot symbois to the candidates, "whose nomination papers have been accepted on the date of scrutiny; that the statute required him to scrutinise all nomination papers on the date speci- fied-for scrutiny and he had no power to keep the nomination paper of any candidate, including that of a substitute candidate, pending without scrutiny, till the date of withdrawal; and that if he had not rejected the nomination paper of U. K. Swamy substitute candidate on 19-8-1999 and if H D. Kumaraswamy did not withdraw, he had to allot the same symbol to both of them as both H. D. Kumaraswamy and U. K. Swamy nominated by the same party, and that was neither possible nor per- missible.
4. Whether the election of first respondent is-
•illegal and invalid ADDITIONAL ISSUE
5. Whether the nomination of r. substitute can- didate belonging to recognised political party comprising of a single proposal can "be rejected having regard to the Representation of Peoples Act?"
•Issut: 1 to 4 in both the petitions arc common. RE :TSSUE (1) & (2) in both case* :
17. Answers to these tv/o issue? depend upon il( ihou question as to whether the -Retunjing Offi- 15. The returning candidate has also filed ob- jections. He has contended that the Returning Officer had acted, in accordance with the provisions of the Act and the Rules, in rejecting the nomination papers 6t U, K. Swamy; that when the nomination papers of the approved main candidate was accepted on scrutiny, there was no alternative but to reject the nomination paper of the substitute candidate; that if U. K^ Swamy wanted to remain in the field, even after 4he nomirrtion peper of main candidate was accepted on scrutiny, then another nomination paper subscribed by ten electors, as proposers, ought to have been filed, in which event, such nominatioa 305 unless the ituiUiu.Jor, p ^ x. i" b..b..cribed by ten propose.J MarB elects" oi" the constituency;
Provided f'Tfhur thfit no nominntion paper shall be deliver..^, to the rcfurf'-ng offic-T on a day which is a nub'ie hol'idi'.y.
* S*
* **
:;:*:!!
cer shou'd sctuimuie and decide whether ihe nomi- nation paper of a substitute candidate should be accepted or i ejected on the date of scrutiny, or whe- ther he should postpone the scrutiny of Nomination paper of the substitute candidate, and decide whether it shou'd be accepted or'rejected or-ly after th'e expiry of the time stipulated for withdrawal of candidatures;. The answer to this question will necessarily depend on the provisions of the RP-Act. Thus these two issues relate to a pure question of law.
18. A reference to the relevant provisions of the RP Act, the Rules, and Symbol order will be useful at this juncture.
18.1" Party-V of the R P Act deals with Conduct of Electrons. Chapter-I of Part-V deals with the Nomination of Candidates.
18.2 Seel ion 30 relates to appointment of dates for Nominations, scrutiny etc., It provides that as-soon as the Notification calling upon a consti- tuency to 2lect a member is issued, the; Election Commission, shall, by notification in the official gazette, appoint (a) the last date fer making nomi- nations, (b) the date of scrutiny of nominations, (c) the last date for withdrawal of candidatures, (d) the date or dates on^ which a poll shall be taken and (e) the date before which the election shall be completed. Clauof? (b) provides the-t the date appointed' for scru- tiny of nomination shall bo the (.lay immediately foiiowing ihe last date for making nominations (or if: that day u a public holiday, the i;exi ^ucceedira, day which is not. a,pubic -holiday). Claire (c) pro- vides that the last.d'ate for withdawal of candi- datures, rhall be iho second day after the day of scru- tiny of nominatiens (or. if that day is a public holi- day, the next sueer-eding- day, which is not a holi- day).
18.3 - Section 33- deals with preseraatio/: of nomination papers and requirements of a valid nomi- nal ion. Sub-section (1) with first two provisos, and sub-section (6) widi its proviso, are extracted- bdew :
"33. Pr^e^tation of nomination paner and requirements f o ra valid nomination.—(1) On or before the (Me &ppoi."ted urdcr cla:ise (a)' of . section 30-efrh 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 delivery to the returning officer ai the place specified in this behalf in the notice issued under Section 31 a nomination-paper completed, in the. pf^cribed f^rm and signed by the candi- date and by an cl.-ctor of the corstittteacy as proposer.
Provided that a candidate not setup by a recog- nised, political party, shall not be "deemed duly nominated for election from a constituency _ (6) Ncthir.g in t':is sc-ction shall prevent any cantlidat; f;:-ra b;r,\s nominated' by m^rc than one nomination pap~r;
Provided that not r"ore thau four nomination papers shall be presented by or on behalf of any candidate or ncrrpied by the returning officer for election in the same corstiturrcy.
18.4 Sectior 34 deal:. w::h deposi*: a"d Sec- tion 35 provide:; ^ r rotice "of "orairriion~ an-"1 +!',-„• time and place for their scrutiny.
18.5 Section 36 deals with scrutiny of nomi- nations. Sub-sectiors (2), (3), (4), (5), (6) and (8) of Section 36, which are relevant are extracted below :
36. Scrutiny of nominations . r
"(1) xxx xxx ' xxx (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either; on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds :—
(a) that on the date fixed for the scrutiny , of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :•— Articles 84, 102, 173, and 191 and Part II of this Act, and sections 4 and 14 of [he Govern- ment of Union Territories Act, 1963 ; or (b) that there has been a failure to compl^ with any of the provisions of section 33 or section 34 ; or
(c) tkat the signature of the candidate or the proposer, on i rr T cr.ii: :.t'cn>* peper is not genuine.
(3) Nothing contained in clause, (b) or clause (c) of sub-recticn (2) yhall be deemed' . to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by. rr.e3ns of another rcminalicn pf-pcr in. respect;, of which no irregularity has bsen. commit'ed.
fl" THE GAZETTE OF INDIA : AUGUST 25, .2001/BHADRA 3, 1923 [PART n—SEC. 3 (Hi)](4) The returinng officer shall not reject. any nomination paper on the ground, of any defect which is not of a substantial character.
{5) The retaining officer shall hold the scrutiny on the date appointed in this. behalf under .clause (b) of section 30 and shall not allow i any adjournment of the proceedings except when such proceedings are interrupted to obstructed by riot or open violence or by causes beyond his control :
Provided that in case can objection is raised oy the returning officer or is made by any other person) the candidate concerned may be allowed time "to rebut in not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomir.i'.t'on rcpi-;- his decision accepting '. or rejecting the same, and if the nomination paper is rejected, shall record in writing a brief statement . of his reasons for such rejection.
(7) xxx xxx xxx (8) Immediately after all the nomination papers have been scrutinized' and decision- accepting or rejecting the same have been ._ recorded, the returning officer .hall prepare a list of validity nominated candidates, that is to say, candidates .whose nominations have been found valid, and affix it to his notice board."
(18.6) Section 37. relates to withdrawal of candidature and provides that arty candidate may withdraw his candidature by a notice in writing to be delivered before 3.00 PM on the day fixed under Section 30 (c), to the Returning Officer. Section 38 relates to publication of list of contesting candidates. It requires the Returning Officer to prepare and publish a list of candidates who were included in the list of validity nominated candidates and who have not withdrawn their candidature. It requires the Returning Officer to do so immediately after the expiry of the-period prescribed for wii|idrsiw.i\ of candidatures under Section 37 (1).
* (c) the said notice is
• 19. Rules 4, 8 and 10 of the. Rules prescribe the forms for nomination, list of validity nomi- nat&d candidates and list of contesting candidates. Rule 5 (I) provide that the Election • Commission shall-, by notification specify the symbols that may be chosen by candidates at elections in Parliamentary, constituencies and the restrictions to • which their choice shall be subject.
20. Election Symbols (Reservation ~ and Allotment) Order, 1968 was issued by the Election Commission of India, jn exercise of its power under Article 324 of the Constitution read with Section 29 A of the RP Au and the Rules 5 and 10 of the Rules. Clause 8 provides that the candidates set up by a recognised national party at any slection in, any constituency in India, shall choose, and shall be alloted, the symbol reserved for that party and no other symbol.
(20.1) Clause 13 explains when a candidate is deemed to be set up by a recognised national political party. The said clause, as it earlier stood and as it now stands after amendments on 20-5-1999 and 8-6-1999 read as fellows :
After Amendment on 20-5-1999
Before the Amendment on 20-5-1999
13. When a candidate shall be deemed to be set up by a political party : For the purpose of this order, a candidate shall be deemed to be set up by a political party if, and only if :
1 3. When a candidate shall be deemed to be set up by a political party : For the purpose of an election from any Parlia- mentary or Assembly constituency to which this Order applies, a candidate shall be deemed to be set up by a political' party in any such Par- liamentary or Assembly constituency, if, and only if.
(a) the candidate has. made a, declaration to this effect in his nomination paper ;
(a) the candidate has made the prescribed declaration to this effect in his nomi- nation paper;
(b) a notice in writing, in Form B to that effect has, not later than
(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 ;
' 3 p.m. on the last date for making nominations been delivered to the Returning Officer of the constituency and the Chief Electoral Officer cf the State ;
(c) the said notice in Form B is signed by the President, the Secretary or >any other office bearer of the party, aftd the President- Secretary or such
signed by the President, the Secretary or any "other office bearer of the party and the - President, Secretary . or such other office bearer is authorised by the party to send such notice ;
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 to the Returning Officer of the constituency and to the Chief Electoral Officer of the State, in Form A not later than 3 p.m. on the last date for making nominations; and
(d) the name and speci- men signature of such authorised person "are communicated by the party, in Form A, to the Returning Officer of the consti- tuency and to the Cihef ' 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 inKSinly, by the said office bearer authorised by the party ;
(e) Forms A and B are signed, in ink only, by the said office bearer or person authorised by the party ;
Provided that no facimile 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 Provided that no fascimile signature or signature by means of rubber stamp, etc., of any such office bearer shall be accepted and no formjxansmitted by fax shall be accepted.
307 ensuing General election from the constituency noted against each.
(i) that the person - whose pzrticulars and furnished in columns (2) to (4) below is the app- roved candidate of the party above namef1. and
(ii) the person ' whose particulars are men tioned in columns (5) to (7) below is the substitute candidate of the party, who will 'step-in on the approved • candidate's nomination being rejected on scrutiny or on his withdrawing form the contest, if the substitute candidate is still a contesting candidate, at the ensuing general/bye enelection from this constituency:
i
It (form B) requires the person authorised by a political party to deliver the form B to the Return- ing Officer of the; Constituency, not later than 3 PM on the last date for making the nomination. The Table in the form was also modified by notification dated 20-5-1999. The contents of Form B before amendment and after amendment are as under.
Before Amendment
After Amendment from 20-5-1999
. (1) Name of the
(1) Name of the constituency
constituency
/0.(l) Clause 13A was introduced by Amendment on 20-5-1999 and it clarifies that a political party which has give a noyce in Form B under clause 13 in favour of a candidate, may rescind that notice and give a revised notice in Form B in favour of another candidate for the constituency. Form-B prescirbes the form of notice as to name of candidate set up by the political party. The format of the notice before aiid after th i amendment is as follows :
Before Amendment : Alter Amendment on 20-5-1999
In pursuance of para- graphs 13 (b), (c) and (e) .end 13A cf the Election symbols (Reservation and Allotment) Order, 1968, I hereby give notice OH behalf of (party) —
In pursuance of paragraph 13 (b) of the Election Symbols (Reserve ion "and Allotment) O"*cr, 1968,1 hereby give notice 'that the following persons have been set up by - party .as its candidates at the 2498 GI|2001—2." "
(2) Name of the ' ^ approved candidate (2) Name of .the „ approved candidate
(3) Father's/Mother's/ husband's name of appro- ved candidate
(3) Father's/husband's name of approved candidate
(4) Postal address of
".approved candidate (4) Postal address of approved candidate
(5) Name of the substitute candidate who will step- in on the approved candidate's nomination oeing rejected tr. scrutiny •
(5) Name of ihe substitute candidate who wiS! stet-in . on the approved candidate's nomination tx-ing rejec- ted on scrutiny .or ou his withdrawing from the contest ' if substitute . candidate is still a contesting candidate308 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PARI II—SEC. 3(iii)l (6) Father/husband's name (6) I-ather/Mother/ bt substitute candidate husband's name of
substitute candidate
(7) Postal address of the (T) Postal address of Ihe substitute candidate. substitute candidate.
substitute candidate should be rejected if the nomi- nation paper of main approved candidate is accepted was given wilh reference to the position prior to the amendments to the symbol order made on 20-5-1999 and the "aid insi ruction wiJl not upply after 20-5-1999. Tlie petitioners therefore, submit that the nomination paper of the substitute candidate (U.K. Swamy) should been taken up for scrutiny only after 3 p.m. on 21-8-1999; and if the scrutiny had been so postponed from 19-8-1999 to 21-8-1999, the approved candidate (H-D. Kumaraswamy) would have withdrawn and U.K. Swamy would have beconvj the , approved candidate,
22. The purpose of scrutiny of nomination papers is to accept the valid nomination papers and reject the invalid nominations. Section 36(5) of R'P Act requires scrutiny of all nomination papers without exception, on the date appointed for scrutiny. It, therefore, follows that on the date fixed for scru- tiny of nominations, the Returning Officer is bound to scrutinise the nomination papers of ail candidates, and wherever they are in order, accept the same and wherever they are not in order, reject the same. No exception is made in regard to substitute candidates or any other category of candidates. Section 33 makes it clear that a nomination paper, to be valid, should be subscribed by ten proposers (electors of the constituency) unless the candidate is set up by a recognised political party, in which event, it is suffi- cient if the nomination paper is subscribed only one Elector of the constituency, an proposer.
21. Petitioners in these two petitions contend that the amendment of the Form-B by introducing the words 'or on his withdrawing from the contest1 after the words 'substitute candidate who will step-in on the approved candidate's nomination being rejected' would mean that the substitute candidate can step in not only when the approved candidate's nomination is rejected on scrutiny, but also on his. withdrawing from the contest; that Section 30(C) read with 37 of RP Act provides for withdrawal of the candidature before 3 PM of the second day after the date of scrutiny of nominations and, therefore, it follows that, the nomination of the substitute candi- date shall bo kept alive until expiry of the time stipu- lated for withdrawal of candidatures; and dial .us the approved candidate in this case (Sri H. D. Kumarabwamy) could have withdrawn at any time before 3 pm on 21-8-1999, the scrutiny of the nomi- nation paper of U K Swamy (Substitute candidate) for acceptance or rejection ought to have been taken up for consideration only after 3 pm on 21-8-1999. It is further contended that a substitute candidate,is not like any other normal candidate; that so long as the approved candidate is in the arena, the substitute candidate is only a dormant appeiidage to the approved candidate and nib candidature comes to life only when the nomination paper of the approved candidate is rejected on scrutiny or when ihe approved candidate withdraws from contest; that therefore the nomination paper of the substitute candidate should not be taken up for scrutiny, so long as the approved candidate holds the field; and that consequently the nomination paper of the substituted candidate can be taken up for scrutiny only when the time stipulated for withdrawal of the nomination papers expires. It is stated that if the substitute candidate's nomination paper is rejected, even before the" expiry of the time prescribed for withdrawal of candidatures, the pro- vision made in the amended Form-B that the substi- tute, candidate shall step in as the inain candidate, on the withdrawal of the approved candidate from con- test, will be rendered nugatory. It is contended that when the provisions of the Symbol Order and modified Form-B, are read with the provision for nomination of candidates in Chapter-I Part-V of the RP Act, it will be clear that the Returning Officer will have to scrutinise the nomination paper of a substitute candi- date only aftet the expiry of the time prescribed for withdrawal of the candidature. It is stated that the instructions in para 10.3 (vii) of the Hand book for returning officers 1998, issued by the Election Com- mission instructing that the nomination paper of a
23. There is no difference between the substi- tute candidate and the approved candidate in so far as filing of nomination is conceded. Section 36(2) requires the Returning Officer to scrutinise all nomi- nation papers on the date appointed for scrutiny and reject thosfe nomination papers \vhich fail to comply with the provisions of Section 33 of the RP Act. As noticed above, Section 33 requires subscription by ten proposers in the case of a candidate not set up by a recognised political party and ciic proposer in the case of a candidate set up by n recognised political party. Each political party can t,et up only one approved candidate per constituency and under the Symbol order, such candidate is entitled to the allot- ment of the symbol of the party. It follows that on the date of scrutiny of nomination papers, only one candidate can be accepted as set up by a recognised political party. To avoid any disputo, as to who in the candidate set up by a political party, the Symbol Order requires the political party to issue Form-B confirming that a particular candidate is the candidate set up by it, not later than 3 pm on the last date for making nomination pupers. As some political parties found the need to have a substitute candidate, a provisions was made in Forni-B to specify the name and address of the substitute candidate to step ia thei place of approved candidate in the event of nomination of the approved candidate being rejected. Subsequently, the political parties found that even thjs was not a sufficient safeguard to ensure its candi- dates stays in the fray, as it was likely that the approved candidate may withdraw and, therefore, a further provision was made that the substitute candidate will step in not no only where the nomination of ils approved candidate is rejected, but also wheri its approved candidate withdraws from the. contest.
: 24. BuL, the fact that Symbol order enables political parties to have a substitute candidate and ajso enables such substituted candidate to sttp in as the approved main candidate (in the event of the nomination of approved candidate being rejected or in the event of approved candidate withdrawing fi'om contest) does not mean that the provisions of the Symbol order aie contrary to the provisions of RP Act or will prevail over provisions of the RP Act, The concessions shown to political patties under Symbol order are subject to the provisions of
25. Let me now consider the contention that unless the scrutiny of nomination paper of substitute candidate is postponed till the expiry of the time and date appointed for withdrawal of candidatures, the amendment to Form-B under the Symbol Order will be rendered nugatory. It' is contended that while the Symbol Order and Form-B contemplate the substitute candidate stepping in as the approved main canddiatc, in the event of the approved candi- ! dates withdrawing from the contest, rejection of the nomination paper of the substitute candidate even before the time stipulated for withdrawal of candi- dature, would nullify the amendment to Form-B. This contention is without merit. Earlier, the Symbol Order and Form-B contemplated the substitute candidate stepping in as the approved main candi- ] date only when the nomination paper of the approved 2498 G112001—3.
309 candidate was rejected on scrutiny. All that the amendment has provided is th.it the substitute candi- date will step in not only when the approved candi- date s nomination paper is rejected on scrutiny, but also when ihc approved candidate withdraws from the contest. Having regard to the provisions of Chapter-I of Part-V of the RP Act, which have remained unaltered, if the substituted candidate should became approved candidate, necessarily, the approved main candidate should withdraw before the scrutiny of the nomination paper of substituted candidate, on the date of appointed for scrutiny. Tn other words, the substitute candidate will step in as the main candidate where (a) on scrutiny, the nomination paper of the approved candidate is rejected or (b) where before the substitute candidate's nomination papor is scrutinised on the date appointed for scrutiny, the approved candidate withdraws his candidature. This is evident from the use of words 'if substitute- candidate is still a contesting candidate' introduced in Form-B, after the words the person whose parti- culars are mentioned in columns (5) to (7) below is the substitute candidate of the party, vvho will step in on the approved candidates nomination being rejected on scrutiny oi on his withdrawing from the contest1.
26. Neither the Symbol Order nor Form-B un- conditionally provide that whenever the approved candidate withdraws, the substitute candidate will step in. Only if the withdrawal of the candidature of the approved candidate is before the scrutiny and rejection of the nomination paper of substitute candidate, the substitute candidate will step in as the approved main candidate. If the approved candi- date does not withdraw before the scrutiny of nomi- nation paper of substitute candidate and the approved candidate's nomination paper is accepted, the subs- titute candidate's nomination paper will be rejected on the date of scrutiny, and any subsqucnt with- drawal by the approved candidate will not enable the substitute candidate to step-in in the place of approved candidate. That is why the words "if the substitute candidate is still a contesting candidate" is used in Form-B. To read the amended Form-B in the manner required by the petitioners, will amount to rewriting the provisions of Section 30(b) and (c) and 36(2)(b) and 36(5) of RP Act. The amendment to the Symbol Order and Form-B, no way change the position that all nomination papers, without excep- tion, shall be scrutinised on the day appointed for scrutiny and acceptance/rejection.
27. It should be remembered that, as repeatedly pointed out by the Supreme Court, that there no right to be elected, outside the statute. It is not a fundamental right, nor common law right. A pcrsou can contest the elections only in accordance with the provisions of law and not otherwise [ see decisions in310 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART U—SEC. 3fiii)J Chararralal Sahu Vs. Nandkishore Bhatt (ATR 1973 SC 2464) and Joyti Basu Vs. Debi Ghosal fAIR 1982 SC983)].
28. The essence and effect of the provisions is made clear in the Hand Dook for Returning Officer for the elections to the House of People and State Legislative Assemblies (1998). Chapter-Vf of the Hand Book deals with scrutiny of Nonination papers. Para (4) requires that all nomination papers should be scrutinised. In view of the change in law, permit- ting the nomination paper of a candidate set up by a recognised national political party, to be subscribed by only one elector as proposer and other candidates , by ten electors as proposers, certain clarifications were issued by the Election Commission regarding the candidate set up by a recognised national political party. The following clarifications contained in Para 10(3) of Chapter VT of the Hand Book are relevant :
"(i) Nomination paper filed by a candidate clai- ming to have been set up by a recognised National or State Party will be rejected, if a notice in writing to that effect has not been delivered to the Returning Officer of the cons- tituency by an authorized officer bearer of the political party by 3.00 p.m. ON THE LAST DATE FOR MAKTNG NOMINA- TIONS [ IN FORMS 'A' AND 'B' devised by the Commission for the purpose under para 13 of the Election Symbols (Reservation and Allotment) Order 1968 ].
XXX XXX XXX XXX (vii) The nomination paper of substitute candidate of a recognised political party will be rejected if the nomination paper of the main approved candidate of that recognised political party Is accepted, However, if such substitute cand i date has also filed another nomination paper subscribed by ten electors as proposers, this latter nomination paper will be scrutinised independently by treating the candidate as an independent candidate. Further, if the nomi- nation paper of the main approved candidate' of the party is rejected, then also the nomina- tion paper of the substitute candidate will1 be accepted, provided that the party has inti- mated his name as its substitute candidate in Form lA' and 'B' filed before 3 p.m. on the last date for making nominations." (emphasis is supplied)
29. Clause (vii), extracted above, makes the effect of the three situations clear i.e. as to what should happen if the m∈ approved candidate's nomination paper is accepted and what should happen if the main approved candidate's nomination paper is rejected and as to what should happen if the substitute candi- date files one nomination paper as a candidate set by a recognised political party with one proposer and another nomination paper subscribed by ten electors as proposers, as a candidate not set up by a recog- nised political party. This was approved and rei- terated by the Supreme Court in Krishna Mohini Vs. Mohjnder Nath Sofat [(2000) 1 SCC 145]. The Supreme Court extracted clarification No. (vii) from the Hand Book for Returning Officers (1998) [ex- tracted above ] and specifically stated that the afore- said guidelines issued by the Election Commission of India are consistent with the satatutory provisions and correctly brings out the position of law. The Supreme Court held that as follows :
"The distinction between nomination filed by a candidate set up by a recognised political party and a candidate not set up by a recognised poli- tical party is precise. A perusal of the first proviso to Sub-section (1) of Section 33 of the Act makes it clear that a candidate not set up by a recognised political party, meaning thereby a candidate set up by an unrecognized political party or an independent candidate, in order to be duly nominated for election must have his nomi- nation paper subscribed by ten proposers being electors of the constituency. If such nomination paper be subscribed by only one elector as pro- poser or by a number of electors Jess than ten, then it will amount to noncompliance with the provisions of Section 33, A candidate, who is merely a substitute or a cover candidate set up by a recognised political party, may file his nomi- nation paper proposed by only one elector or the constituency. If the nomination paper of the approved candidate of that political party is accepted, the nomination paper filed by the subs- titute or cover candidate shall be liable to be rejected because there can be only one candidate set up by a recognised political party." [ emphasis supplied ]
Thus, a substitute candidate cannot take excep- tion to the rejection of his nomination paper when the main approved candidate's nomination paper is accepted.
30. The learned counsel for the petitioners attem- pted to distinguish the clarification (vii) in the Hand Book for Returning Officers and the decision in Krishna Mohini's case, on the ground that they are based on the Symbol Order as it stood in the year 1998 and that they do not take note of the amend- ments to Form B under the Symbol Order. But, the amendment to Form B in no way affects the requirements of Sections 30(b) and (c) and 36(2) and (5) of the RP Act. The amendment merely clarifies i ll
candidate is not valid on account of the acceptance of the approved main candidate's nomination, then reject the same on the date of scrutiny itself. There- fore, the procedure adapted by the Returning Officer and the decisions given by him rejecting the nomina- tion paper of U.K.. Swamy is valid and in accordance with law.
32. The petitioner in EP No. 7/1999 had made a request to lot in oral evidence to show that there was an arrangement under which H.D. Kumaraswamy would have withdrawn on 21-8-1999, if his U.K. Swamy; nomination had not been rejected. This aspect has been considered in the order dated 30-6-2000, which is extracted below:
"3. The election Petition it, filed solely on the ground that the nomination of the petitioner has been improperly rejected. According to the petitioner, the Returning Officer ought not to have rejected his nomination paper on the date fixed for scrutiny of nominations, but ought to have waited till the expiry of date for withdrawal of the nomination paper, and failure to do so amounted to improper rejection of the nomina- tion paper. There is no allegation of any corrupt practice or allegations of the nature of corrupt practice, which may require oral evidence.
4. Learned Counsel for the respondents have no objection for the documents produced by the petitioner being marked by consent.
5. In the facts and ciicumstances of the case, oral evidence is not required. Parties are directed to mark the documents by consent and argue the matter."
that substitute candidate will step-in the place of approved candidate in two circumstances instead of in one circumstance. But, they do not in any way affect or alter the legal position that only one candi- date in the contest can be set up by a recognised political party and any extra candidate (either cover candidate or substitute candidate) gets excluded on the date of scrutiny, by rejection of his/her nomina- tion paper as a consequence of acceptance of the nomination paper of the approved main candidate. This position will also be evident from a careful analysis of the provisions. Tf the contention of the petitioners is to be accepted and the nomination paper of substitute candidate is not rejected on the date of scrutiny, then the consequence will be very serious. The law does not contemplate rejection of nomination paper after the date prescribed for scrutiny and acceptance/rejection. If the substitute candidate is allowed to continue as a candidate, without scru- ., tiny and rejection of his nomination paper, then on the date of withdrawal there will be technically two candidates set up by a recognised national political party; and if the approved main candidate set up by a recognised national political party refuses or fails to withdraw from the contest on the date stipulated for withdrawal of candidature, then there will be two candidates set up by a recognised national political party in the field. A substitute candidate being a candidate set up by a recognised national political party, will also be entitled to the symbol of the recognised political party, but the said symbol having already been aiiottedto the approved candidate, the same cannot be allotted to the substitute candidate. A substitute candidate cannot also be allotted another symbol, having regard to the bar contained in para 8 of the symbol Order which requires that a candidate set up by a recognised national political party should be allotted the symbol of that party and no other.
33. The petitioners' success in the Election Peti- tion depends on the question whether rejection of (he nomination papa" is correct or not. This is purely a legal question. Any arrangement among the members of a party is totally irrelevant.^ The Supreme Court in SOMNATH RATH vs B1KRAM K. ARUKH (2000 (1) UJ 64) held that improper rejection of nomination is itself sufficient to quash the election of returned candidate ard there is no need for an enquiry as to material effect of such rejection on result of election, in ease of improper rejection of nomination paper. Therefore the question of permitting petitioner in FP No. 7/1999 to let in evidence as to whaL wouM have happened if his nomi- nation had not been rejected, docs not arise.
31. There will be another incongmous position, if both the approved main candidate and substitute candidates arc accepted as validity nominated candi- dates and the approved main candidate does not subsequently withdraw from the contest. Jn that event, the approved miin candidate would be the candidate of the recognised political party. Conse- • queiitly, the substitute candidate cannot be consi- dered as the candidate set up by a recognised national 'policital party. If he is not the recognised national political pany, then his nomination paper sub.crbed by one elector as proposer would become invalid. But his nomination paper cannot be rejected, as ihe last date for scrutiny and rejection of nomination papers has already expired. Thu^,, the only proper •procedure is to scrutinise all nomination papers, including those of substitute candidates on the date 'fixed, for scrutiny itself und not any oilier subsequent day; and if the nomination, paper of the substitute
34. Tin; petitioner in EP No. 7/1999 contents that Section 86 and 98 contemplate trial in the case of all election petitions and therefore he sought to be permitted 1o examine witness. 11 can noi be said that the term 'trial' in Section 86 and 98 requires312 THE GAZETTE OF INDIA : AUGUST 25, 2001/BMADRA 3, 1923 ' [PART II—SEC. 3(iii)J or contemplates examination of witnesses, even where the question ariring for decision is a. pure question of law or where there is no cau*e of action for the election petition. In SAMAR SINGH vs KEDAR NATH (ATR 1987 SC 1926) I he Supreme Court has held that an election-petition can be dismissed under Order 7 Rule 11 of CPC even after framing of issues, if the petition does not disclose a cause of action.
35. In view of above, [ answer issues I and 2 in the "negative.
RE: ISSUE-3 (hi both casesj:
36. The question whether the Returning Officer is a necessary party is covnred by the decision of 1hc Supreme Court in JYOTI BASU vs Db'Bl GHOSAL [AIR 1982 SC 983] and B. SUNDARA RANI REDDY vs ELECTION COMMISSION OF INDIA [1991 (SliPP) (2) SCC 624J and the decision of this court in SUBHAN KHAN v? J H PATEL [AIR, 1996 KAR 167], Therefor^ , it is held that the Re- turning Officer is not a necessary parly. Howevjr as the arguments have been heard on all the issue including this prc-liminary issuu without recording any oral evidence, this question in these cases is academic.
RE: ISSUE No (5) IN EP No 23/1999:
37. This issue is answered while considering the issues I and 2. Nomination paper ol" a substitute candidate belonging to a recognised political party subscribed by only one elector as proposer will have to be rejected, if the nomination paper of the main approved candidate is actvplL-rf. On the OHILI- hand. if the nomination paper of the approved main candi- date is rejected, on scrutiny, or where the approved main candidate withdraws before the nomination paper of the subitiiutd candidate is scrutinised, thtn the substitute candidate becomes the approved main candidate and his nomination will b*.- valid, even if it is subscribed by a single proposer.
RE: ISSUE (4) IN BOTH CASES:
38. Issue No. 4 in both cases is a consequential issue. If the rejection of nomination paper of U.K. Swamy was improper, then the election of the re- turned candidate had to be deflated as void under Section 100(1 )(d) of the RP Act. Tn these cases, issues (1) and (2) have been answered holding that the rejection of the nomination paper of U. K. Swamy is valid, Consequently, issue No. (4) in both cases is answered in the negative.
CONCLUSION:
39. There is no merit in these election petitions. In fact there is no cause of action at all. The peti- tions are accordingly dismissed under Section 98(a) of RP f. The returned candidate (respondent) No. 2 in EP No. 7/1999 and Respondent No. 1 in EP No. 23/1999) will be entitled to costs from the petitioner in the respective petition under Section 119 of RP Act, quantified at Rs. 1,000/- per petition.
Sd/- JUDGE IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ELECTION PETITION NOS. 7 & 23 of 1999 in EP No. 7 of 1999
Between:
1. U.K. Swamy
S/o Kadegowda, age 49 years Uyyamballi Hobli Kanakapura Taluk Bangalore Rural District —PETITIONER (By Sri M. Veerabhadraiah & Sri M R. Rajgopal) And ;
1. The Returning Officer/Deputy Commissioner, No. 11, Kanakapura Parliamentary Constituency Podium Block, Vishweswaraiah Towers, Vidhana Veedhi, Bangalore.
2. Shri M.V. Chandrashekar Murthy,
S/o M.V. Venkatappa, aged 58 years. Parliamentary Constituency, R/o Pete Malavalli Town, Mandya District, Also at M.V. Chandrashekar Murthy, Member of Parliament, No. 5, Church Road, Shantinagar, Bangalore.
...RESPONDENTS (By Sri II.J. Sutidarkumar, AGA, for R l; Sri Venkateshwar N.K. and Ms. Madhumita,.. Bagchi, Advocate lor R2.)
Elociion petition is filed under Sections 81 of The Representation of People Act, 1951, by the Petitioner Candidate for Election Constituency as Member of Parliament for No. 11, Kanakapura Parliamentary Constituency held on 5th September 1999 praying as follows:
(a) Call for records, pertaining to pre-election process i.e., from the date of declaration of calender of events, till the date of rejection of nomination of petitioner pertaining to No.11, Kanakapura Parlia- mentary Constituency;
(b) Call for other records relating to granting of copies, certified copies to petitioner, including original fi i( containing the orders, endorsements and notes if any, from the custody of returning officer, and (c) Declare that rejection of nomination paper of the petitioner is improper and illegal, pertaining to No. 11, Kanakapura Parliamentary Cons and consequently declare the election of second ro*. pondent as declared under Form No. 2!C, as n\\\ and void.
E.P. No. 23 of 1999
Between:
I
1. Shankare Gowda,
S/o Puttaswamygowda, age 35 years. R/o Mylanayakana Hosahalli, Chenuapatna Taluk,
Bangalore Rural District —PETITIONER
313 (By Sri Venkateshwar N.K. & Ms. Madhumita Bagchi Advs., for ER1, Sri M. Veerabhadraiah and M.R. Rajagopal, Advs., for R2, Sri D.L. Jagadeesh, Adv., for R3, Sri H.J. Sundarkumar, AGA, for R-7, R4 to R6 served and unrepresented) Election Petition filed on 20-11-1999 under Sections 80 and 81 of the Representation of People Act, 1951, by the petitioner through his advocate Sri K.N. Subba Reddy, praying as follows :
(a) To call for records pertaining to the election process i.e., from the date of declaruirm of calendar of events till the date of rejection of Nomination of respondent No. 2 pertaining to No. 11, Kanakapura Parliamentary Constituency, Kanakapura, Bengalore Rural District, State of Karnataka.
(By Sri K.N. Subba Reddy, Advocate)
And: 1. M.V. Chandrashekhara Murthy,
S/o M.V. Venkatappa, age 58 years R/o Peteraalavalli, Mandya, and also No. 5, Church Road, Shanthinagar, Bangalore-37.
2. U.K. Swamy,
S/o Kadegowda, age 49 years, R/o Uyyamballi Village, Alahalli Post, Kanakapura Taluk, Bangalore, Rural District.
3. J-ID- Kuraaraswamy,
S/o H.D. Devegowda, age 38 years, R/o No. 286, Mini Forest Road, 2nd main, J.P. Nagar, III Phase, Bangalore.
4. M. Srinivas,
S/o Muniswamappa, age 58 years, R/o No. 8, 4th Cross, 7th Block,
. Jayanagar, Bangalore
5. Bramhananda,
S/o. U. Nagaish, age 32 years, R/o No. 158, Koramangala Village, Bangalore-95.
6. Vcevappa,
S/o Guddathimmuiah, age 55 years, r/o No. 13. Kallipalya, Muligondanahalli Dhakale, Uduru Hobli, Magadi Taluk, Bangalore, Rural District.
7. The Returning Officer & Deputy Commissioner Bangalore Rural to No' 11, Kanakapura Lok Sabha Constituency, Rodinm Block, Bangalore
—RESPONDENTS (b) To call for other records including original file containing the orders, endorsements, notices, B-Forms, nomination paper of respondent No. 2, if any in the custody of the returning officer for the said constituency; and
(e) Declare that the rejection of nomination of respondent 2 pertaining to the said constituency as improper and illegal and consequently declare that the election of first respondent as returned candidate to the said constituency as null and void.
These two Election Petitiones coming up fo arguments between 28-7-2000 and 15-9-2000 an d for pronouncement of orders on 22-9-2000 in the presence of Sri M. Veerabhadraiah and Sri M.R. Rajagopal, advocates for petitioner and Sri H.J. Sundarkumar, AGA, for Rl, Sri Venkateshwar N. K. and Ms. Madhumita Bagchi, advocates for R2 in E.P. 7/99 and Sri K.N. Subbareddy advocate for petitioner and Sri Venkateshwar N.K., Ms. Madhumita Bagchi, Advocates for Rl, and Sri M. Veerabhadraiah and Sri M.R. Rajgopal, advocates for R2, and D.L. Jagadeesh, advocate for R3, Sri H.J. Sundarkumar, AGA, for R7 and respondents 4 to 6 are served but remain unrepresented in E.P. 23/1999 and for the reasons stated in the order, it is ordered and decreed that the Election Petitions be and the same are here- by dismissed with costs.
And it is further ordered and decreed that the returned candidate (Respondent No. 2 in E.P. 7/99 and respondent No. 1 in E.P. 23/99) will be entitled to costs from the petitioners in the respective petition under section 119 of the Representation of People Act 1951, quantified at Rs. 1000/- per petition.
Dated 16-6-2001 Sd/- Registrar (Judicial)
[No. 82/KT-TIP/7&23/99/2OO1]
By Order, BABU RAM, Secy.
314 THE GAZETTE OF INDIA : AUGUST 25, 200VBHADRA 3, 1923 [PART II—Sue. 3(iii)]ORDER
Mew Delhi, the 7th August, 2001
O.N. 108.—Whereas, the Election Commission is thus satisfied that each of the contesting candidate speci- fied in column. (4) of the Table below at the election specified in column (2) held from the constituency specified in column (3) against his name has failed to lodge an account of his election expenses as required by the Repuesonta] tion oftho People Act, 1951 and Rules and Orders made thereunder as shown in column (5) of the said Table; and Whereas, the said candidates have not furnished any reason or explanation for the said failure even after due notice and the Election Commission is thus satisfied that they have no good reason or justification for the said fai- lure;
Now, therefore, in pursuance of Section 10A of the Representation of the People Act, 1951, the Election Com- mission hereby declares the said persons specified in column (4) of the Table below to be disqualified for being chosen as, and lor being a member of c-ithur House of the Parliament or of the Legislative Assembly or Legislative Council of a St:itc for a p.iri.Hl if f i ne years from the date of this order.
31.5
TABLE
Particulars of elections
Mo. & Name of A.C.
SI. No
Name & Address of coniesting candidates
Reason lor discjualili- caiion ! i
2
4
3
5 1.
9 Hauz Khas
Gciiuri.il election to Legislative Assembly-1998.
Ffikd to loJgo any account of liteciH.n
Sh. Sita Ram Bhardu aj, 146, Savitri Nagar, New Delhi.
ovp^nscs 2.
26-Vishnu Garien
-do- -do-
Sh. Shiv Shankar, A-841, J.J. Colony, Khayala, "New Delhi.
r>lo. 76/DL-LA/ft9(ni]
By order,
K. 11. FRASAD, SCCJ,316 THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923 [PART II—SEC. 3(iii)] ORDER
New Delhi, the 7th August, 2001
O.N. 109.—Whereas, the Election Commission of India is satisfied that well of the contesting candidate specified in column 4 of the Table bolow at the Bye-Election to the Legislative Assembly in Gujarat State specified in column 2 and hold from the constituency specified in column 3 against his name has failixl to lodge the account of his election expenses as shown in column 5 of the said Table as required by the Representation of the People Act. 1951 and the Rules made thereunder;
And whereas, the said candidate luis either not furnished any reason or explanation for the said failure even after due notice by the Election Commission, or after considering the representation made by them, if any, the Elec- tion Commission is satisfied that he has no good reason or justification for the said failure;
Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the persons specified in column 4 of the Table below to be disqualified for being chosen as and for being a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State or Union Territory for a period of three years from the date of this ojder :—
TABLE
Particulars of Election
Narao & Address of Contesting Candidates
Reasons for disqualifi- cation
SI. No
S.No. & Name of Assembly Consti- tuency
2
4
3
I
5 ' "'
Patel Shaileshhhai Rumbhai,
Account not lodged 139-Bhadriin
T Bye Election to the Legislative Assembly, 2000
P.O. Bhadran, Ta. Borsad, Gujarat.
-do-
-do- -do-
2.
Parmar Pravinbhai Natubhai, P.O. Bhadran, Vankar Vas Ta. Borsad, Gujarat
[No. 76/GJ/;C(n/W.S.L]
By'Ordcr,
C.5R.rBRAHMAM,*Secy.
Printed by the Manager, Cnvt. of Tndia Press, Ring Road, New Delhi-110064
find Publish^! by ihe C n n W cr of Publications, Oclhi-110054. 2001