300'

THE GAZETTE OF INDIA : AUGUST 25, 2001/BHADRA 3, 1923

[PART II^-SEC. 3iiii)l

ELECTION COMMISSION Ol INDIA

Now Delhi, th: 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 Rl;

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

pre-election

process i.e., from date

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

petitioner,

including original file containing the orders,

endorsements and note? if any, from

the

custody of returning officers and

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

301

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

respondent No. .2 ,portaining to the said

constkutency as improper and illegal and

consequently declare that the election

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.

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'; 'INC 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'].

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

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

[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).

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.

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.

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 :

"I have examined this nomination paper in

accordance with Section 36 of the Representation

of the People Act, 1951 and decide as follows :

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).

Hence, the nomination of Sri U. K. Swamy

is hereby rejected."" Detailed'order" will be issued

separately."

7. A list of validly nominated candidates (<n

Form No. 4) was declared by the Returning Officer

on 19-8-1999, showing the following candidates :

H. D. Kumaraswamy

—JD (S)

M. V. Chandrashekura-

—INC

murthy

M. Srinivas

— RIP

N. BrahmananJa

— Independent

Veerappa

~ Independent

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.

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 :

No.

Name of the

candidate

H. D. Kurnaraswamy

M. V. Chandrashekara

IVIurthy

M. Srinivas

N. Brahmananda

Veerappa

Name of

political

party

JD(S)

INC

BJP

(IND)

(1ND)

No. of

votes

polled

1,62,465

5,33,652

. 4,99,101

6,253

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

303

Returning Officer, declaring Sri M. V, Chandrashekur

Murthy as the elected candidate fronn. No.

11-

Kanakapura parliamentary Constituency.

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

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 :

12.1 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

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.

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.

12.3 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))

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.

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

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.

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

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.

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 /�ot-

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?

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-

305

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

appointment

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 fora 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

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 *

* * *

:;:*:!!

_ (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

(2) The returning officer shall then

examine

the nomination papers and

shall decide all

objections which

may

made

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

any

of the

following

grounds

:—

(a) that on the date fixed for the

scrutiny

, of nominations

the

candidate

either

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

the

signature

of the

candidate

the

proposer, on

irr

T cr.ii: :.t'cn>* peper

not

genuine.

(3) Nothing

contained

clause, (b)

clause (c) of sub-recticn (2) yhall be deemed'

. to

authorise the rejection

of the nomination

of any candidate

the

ground

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

(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

say, candidates .whose nominations

have

been found valid, and affix it to his notice

board."

(18.6) Section 37. relates

withdrawal

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).

• 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

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 :

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 :

(a) the candidate has. made

a, declaration to this

effect in his nomination

paper ;

(b) a notice 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

and

the Chief Electoral

Officer cf the State ;

* (c) the said notice is

signed by the President,

the Secretary or any

»other office

bearer

of the party and the

President,

Secretary

or such other office

After Amendment on

20-5-1999

13. 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 the

prescribed

declaration

this

effect

his

nomi-

nation paper;

(b) a notice by

the

political

party

writing,

Form

that

effect

has,

not later

than 3 p.m.

on the last

date

for

making

nominations,

been delivered to the

Returning

Officer

the constituency ;

Form B is signed by the

President, the Secretary

or >any other

office

bearer

the

party,

aftd

the

President-

Secretary

or such

307

bearer is authorised

by the party to send

such notice ;

• (d) the name and specimen

signature

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

(e) Forms A and B are

signed, in inKSinly, by

the said office bearer

authorised

the

party ;

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.

other

office '

bearer

sending the 'notice has

been authorised by the

party

send

such

notice ;

(d) the name and speci-

men signature of such

authorised

person "are

communicated by

the

party,

Form

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

ink only,

by the

said

office

bearer

person

authorised

the

party ;

Provided

that

facimile

signature • or

signature

means

of rubber stamp etc.,

any

such

office

bearer

authorised

person shall be accepted

and no form transmitted

by fax shall be accepted

/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 :

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." "

Alter

Amendment

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) —

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

scrutiny

or on his

withdrawing

form the contest, if the

substitute

candidate

still

contesting

candidate, at the ensuing

general/bye

enelection

from this constituency:

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

Form B before amendment and after amendment

are as under.

Before Amendment

. (1) Name of the

constituency

(2) Name of .the „

approved candidate

(3) Father's/husband's

name 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 •

After Amendment from

20-5-1999

(1) Name of the

constituency

(2) Name of the '

^ approved

candidate

(3) Father's/Mother's/

husband's name of appro-

ved candidate

(4) Postal

address

".approved candidate

(5) Name

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

still

contesting

candidate

308

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.

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

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

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.

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

scrutiny

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.

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.

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

309

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 <hc

RP Act and the Rules. The scheme of Chapter-t

of Part-V of RP Act remains unchanged.

It con-

templates

and

fact

requires

Ihe Returning

Officer to scrutinise all nomination papers on the

day appointed for scrutiny and reject invalid nomi-

nations on the Sate of scrutiny .• The provisions of

chapter T ol ParL V o' RP Act have not been amended

postponing the scrutiny of the nomination paper of a

substituted candidate to a time and date beyond the

time and date appointed for scrutiny.

When the Act

specifically contemplates and provides for a scrutiny

and acceptance/rejection of nomination paper, on a

particular date, such scrutiny cannot, obviously, be

postponed to some other day.

If the contention of

the petitioner is to be accepted, the scrutiny in so far

as the substitute candidate is concerned, will have to

be postponed to a day and time after the expiry of the

time fixed for withdrawls, which would is violation

of Sections 30 and 36 of the RP Act.

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.

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 in

310

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

(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&in 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

ill

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.

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

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."

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.

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 requires

312

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 Rl;

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

313

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:

1. Shankare Gowda,

S/o Puttaswamygowda, age 35 years.

R/o Mylanayakana Hosahalli,

Chenuapatna Taluk,

Bangalore Rural District

—PETITIONER

(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

(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.

(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.

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

SI.

Particulars of Election

Bye Election to the Legislative

Assembly, 2000

-do-

S.No. & Name of

Assembly Consti-

tuency

139-Bhadriin

-do-

Narao & Address of Contesting

Candidates

Patel Shaileshhhai Rumbhai,

P.O. Bhadran,

Ta. Borsad,

Gujarat.

Parmar Pravinbhai Natubhai,

P.O. Bhadran,

Vankar Vas

Ta. Borsad,

Gujarat

Reasons for disqualifi-

cation

' " '

Account not lodged

-do-

[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 CnnWcr of Publications, Oclhi-110054. 2001