TaxTMI 
TaxTMI 
2004 (1) TMI 675
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....he elections was as under : Filing of nomination papers : 27.1.2000 to 3.2.2000 Scrutiny of nomination papers : 4.2.2000 Last date for withdrawal of candidature : 7.2.2000 Allotment of Symbols : 7.2.2000 after 3.00 p.m. Date of polling, if necessary : 22.2.2000 Counting of votes : 25.2.2000 3. The appellant Ram Phal Kundu filed his nomination paper as a candidate of Indian National Lok Dal Party (hereinafter referred to as 'Lok Dal Party'). The respondent Kamal Sharma and Bachan Singh, both filed their nomination papers claiming to be candidates of Indian National Congress Party (hereinafter referred to as 'Congress Party'). The Returning Officer accepted the nomination paper of Bachan Singh as candidate of Congress Party and rejected that of Kamal Sharma. The election was held on 22.2.2000 as scheduled and the appellant Ram Phal Kundu secured the highest number of valid votes and was declared to have been elected. Kamal Sharma then filed an election petition under Sections 80, 81 read with Section 100 of the Act for setting aside the election of the appellant Ram Phal Kundu and for declaring his election as void. A further prayer was made that the Election Co....
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....ination paper of Bachan Singh as a candidate of the Congress Party was accepted. The election petitioner was the only official candidate of the Congress Party as Forms A and B submitted by him along with his nomination paper were duly signed and stamped by the seal of the party, whereas Form B submitted by Bachan Singh did not bear the seal of the party and was consequently invalid. The Returning Officer committed a grave illegality in overlooking another essential requirement of law that Form B submitted by Bachan Singh had not reached the office of the Chief Electoral Officer, Haryana within the prescribed time limit. The election petitioner then filed a petition before the Chief Election Commissioner, New Delhi on 6.2.2000, who by order dated 7.2.2000 set aside the order dated 5.2.2000 passed by the Returning Officer and directed him to conduct a fresh scrutiny at 10.00 a.m. on 8.2.2000. The Returning Officer, thereafter, gave notice to election petitioner Kamal Sharma, Bachan Singh and Shri Bhupinder Singh Hooda, who appeared before him and stated that Form B furnished by Bachan Singh was not issued by his approval and that the election petitioner was the only authorised candid....
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....ore the Returning Officer, is of no consequence and could not be taken into consideration in view of paras 13 and 13A of the Symbols Order which provide that the notice in writing in Form B regarding the declaration of the official candidate has to be made and submitted before the Returning Officer up to 3.00 p.m. on the last date of filing nomination papers and not thereafter. Shri Bhupinder Singh Hooda had not denied his signature on the authorisation Form B in favour of Bachan Singh in the affidavits filed by him on 4th and 5th February, 2000 and the same having been filed subsequent to 3.00 p.m. on the last date of filing of the nomination paper were of no consequence. The fact that the seal of the party was not present in Form B of Bachan Singh was of no consequence as it is not a defect of substantial character and under paras 13 and 13A of the Symbols Order only the signature of the authorised person is required and it is nowhere provided that the Form must contain the seal of the party. It is also pleaded that the Election Commission of India has no authority to set aside the order of the Returning Officer rejecting a nomination paper and to direct him to reconsider the mat....
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....s to which of the two persons, namely, Kamal Sharma or Bachan Singh had been set up by the Congress Party. Paras 13 and 13A of Election Symbols (Reservation and Allotment) Order, 1968, as amended by Clause 3 of Election Symbols (Reservation and Allotment) (Amendment) Order, 1999, which came into force on 20.5.1999, which govern the situation read as under: "13. When a candidate shall be deemed to be set up by a political party - For the purposes of an election from any parliamentary or assembly constituency to which this Order applies, a candidate shall be deemed to be set up by a political party in any such parliamentary or assembly constituency, if, and only if - (a) the candidate has made the prescribed declaration to this effect in his nomination paper; (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 of making nominations, been delivered to the Returning Officer of the constituency; (c) the said notice in Form B is signed by the President, the Secretary or any other office bearer of the party, and the President, Secretary or such other office bearer sending the notice has been authorised by the party....
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.... the President, Secretary or any other office bearer of the party and such person sending the notice has been authorised by the party to send the notice. (4) The name and specimen signature of such authorised person are communicated by the party in Form A to (i.) the Returning Officer; and (ii) the Chief Electoral Officer of the State or Union Territory concerned not later than 3.00 p.m. on the last date for making nomination. (5) A political party which has given a notice in Form B in favour of candidate may rescind that notice and may give a revised notice in Form B in favour of another candidate, provided such revised notice in Form B clearly indicating therein that the earlier notice in Form B has been rescinded, reaches the Returning Officer not later than 3.00 p.m. on the last date for making nomination and such revised notice in Form B is signed by the authorised person referred to in Clause (d) of para 13. (6) Forms A and B have to be signed in ink only by the office bearer or authorised person. No fascimile signature or signature by means of rubber stamp and no form transmitted by fax shall be accepted. It may be noted that while Form A has to be submitted to b....
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....proved candidate and Smt. Kusum w/o Shri Kamal as party's substitute candidate is rescinded and the said Form B had been signed in ink by Shri Bhupinder Singh Hooda, who had been nominated as authorised person of the Congress Party. There is also no dispute that the Form B submitted by Bachan Singh was later in point of time and had been given at 2.50 p.m. on 3.2.2000 when the last time and date for filing of the nomination paper was 3.00 p.m. on 3.2.2000. 9. In his statement PW6 Kamal Sharma has stated that in the list released by All India Congress Committee on 2.2.2000 his name was mentioned as a candidate for 50-Safidon Assembly Constituency. In the night he collected Forms A and B from the Camp Office and submitted his nomination paper along with Forms A and B to the Returning Officer. A letter written by Shri Bhupinder Singh Hooda wherein it was mentioned that Kamal Sharma is the candidate of Congress Party from Safidon Constituency and no one else was a candidate, was delivered to the Returning Officer on 4.2.2000. This letter is on the record as Ex.PW2/J and it bears an endorsement by the Returning Officer that the same was received by him at 11.00 a.m. on 4.2.2000. ....
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....rt explained the reasons which led to the introduction of the Symbols and it was said that the object is to ensure that the process of election is as general and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. In Roop Lal Sathi v. Nachhattar Singh AIR 1982 SC 1559, it has been held that the Symbols Order is an order made under the Act. 12. Paras 13 and 13A of the Symbols Order lay down the mechanism for ascertaining when a candidate shall be deemed to be set up by a political party and also the procedure for substitution of a candidate. The opening part of para 13 says in unequivocal terms that for the purpose of an election for any Parliamentary or Assembly Constituency a candidate shall be deemed to be set up by a political party if and only if the conditions mentioned in sub-paragraphs (a) to (e) are satisfied. Para 13A lays down the procedure for substitution of a candidate and also the requirements of a revised notice in Form B. The second proviso to this paragraph takes care of a situation where more than one notice in Form B is received by the Returning Officer and the political party fails t....
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....nion that the question as to who shall be deemed to have been set up by a political party has to be determined strictly in accordance with paras 13 and 13A of the Symbols Order and extrinsic evidence cannot be looked into for this purpose unless it is pleaded that the signature of the authorised person on Form B had been obtained from him under threat or by playing fraud upon him. Where signature is obtained under threat or by playing fraud, it will be a nullity in the eyes of law and the document would be void. 13. The issue can be examined from another angle. In a case where more than one notice in Form B has been received by the Returning Officer in respect of two or more candidates and the political party fails to indicate in such notices that the earlier notice or notices in Form B has or have been rescinded, the decision of controversy by extrinsic evidence would make the second proviso to para 13A wholly redundant. It is well settled principle of interpretation that the legislature is deemed not to waste its words or to say anything in vain. The Courts always presume that the legislature inserted every part of the Statute for a purpose and the legislative intention is tha....
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....d the signature of Shri Motilal Vora and also three signatures of Shri Bhupinder Singh Hooda. In Form B it was mentioned that the notice in Form B given earlier in favour of Kamal Sharma is rescinded and this was signed in ink by Shri Bhupinder Singh Hooda. Therefore, in terms of paras 13 and 13A of the Symbols Order Bachan Singh became the candidate of the Congress Party. In his order dated 5.2.2000 passed by the Returning Officer, he said that Bachan Singh had submitted Forms A and B at 2.50 p.m. on 3.2.2000 and thereafter no other nomination paper or Form had been submitted by any person and neither Kamal Sharma nor Shri Hooda had raised any objection regarding the signature on Form B and the only objection was that the same did not contain the seal of the Congress Party. It being not a defect of substantial character, the revised Forms A and B submitted by Bachan Singh will have to be accepted and accordingly Bachan Singh shall be treated as the candidate of the Congress Party. In pursuance of the Order passed by the Chief Election Commissioner on 7.2.2000 the Returning Officer heard the matter again where both the parties appeared with their respective counsel and Shri Hooda w....
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....rs seal of the Congress Party, which has been done by an ordinary rubber stamp with the commonly used blue ink pad and there is nothing special about it. Such a seal can easily be prepared or procured by a little effort. It is not a type of seal which may be difficult to emulate and is kept in a safe custody under the charge of a responsible person, which may not be available to anyone. What is important and decisive is the signature in ink of the authorised person and not the seal of the party which can be made by an ordinary rubber stamp by any one. Section 36(4) of the Act lays down that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The absence of the seal of the Congress Party in the nomination paper of Bachan Singh cannot be said to be a defect of a substantial character so as to render it invalid. 18. The learned counsel for the respondent has submitted that Form B of Bachan Singh did not reach the office of Chief Electoral Officer and, therefore, there was no valid nomination of his. The High Court has gone to the extent of saying that though Bachan Singh had submitted Form A and Form B alo....
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....d) of the Symbols Order is that the party has to communicate the name and specimen signature of the authorised person in Form A to the Returning Officer of the Constituency and to the Chief Electoral Officer of the State and admittedly this had been done. 20. In view of our finding that Form B submitted by Bachan singh was perfectly valid and as the same was submitted in the last at 2.50 p.m. on 3.2.2000 and it contained a clear recital that notice in Form B given earlier in favour Kamal Sharma is rescinded, he became the candidate of the Congress Party. The nomination paper of Kamal Sharma was, therefore, rightly rejected. The appeal consequently deserves to be allowed and the High Court judgment is liable to be set aside. However, as the learned counsel have made submissions on the merits of the case, we will also examine whether the election petitioner has been able to establish the case set up by him. 21. Learned counsel for the respondent has submitted that Central Election Committee of the Congress Party had selected the candidates for contesting the election and from 50-Safidon Assembly Constituency, the name of Kamal Sharma had been decided. For this reliance is place....
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....a candidate, was not the final list but was some sort of a tentative list and the list was finalised later on. Both the lists, Ex.PW4/C and PW2/S prima facie appear to have been prepared on the same computer as the letters and method of typing are exactly similar. At the top of Ex.PW2/S it is mentioned "The Central Election Committee has selected the following candidates for the ensuing Assembly Elections from Haryana." There appears to be no reason to doubt the correctness of list Ex.PW2/S which shows the name of Bachan Singh Arya and not that of Kamal Sharma. When Kamal Sharma was confronted with the situation that in the lists submitted by him (Ex.PW4/C) names of only 87 candidates were mentioned, he replied that he was not aware whether there were three constituencies regarding which decision had not been taken. When further confronted, he stated that it is true that there were 90 constituencies in Haryana. Regarding 51-Faridabad Constituency, he mentioned the name of Gyan Chand Ahuja as Congress candidate. When further cross-examined, he said that he cannot say whether Shri A.C. Chaudhary had fought the election. This shows that he has scant regard for truth and can g....
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....ereby the nomination papers of the petitioner have been rejected, is clearly unsustainable in law and improper under the circumstances of the case." In order to appreciate the contention raised by the learned counsel and for judging the correctness of the reasoning given by the High Court, it is necessary to refer to the order of the Election Commission. 23. Kamal Sharma had presented a petition before the Chief Election Commissioner of India on 6.2.2000 praying that the order of the Returning Officer dated 5.2.2000 may be set aside, the objections raised by him be accepted and the candidature of Bachan Singh may be set aside. It was further prayed that he may be declared as official candidate of the Congress Party. The Election Commission passed a detailed order on the very next day i.e. on 7.2.2000 and after noticing the submissions made in the petition issued a direction to the Returning Officer to conduct a re-scrutiny. The operative portion of the Order reads as under : "Now, therefore, the Election Commission hereby directs that the Returning Officer for the said 50-Safidon Constituency shall cause a re-scrutiny of the nomination papers of the aforesaid candidates, n....
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.... different. 24. It may be noticed that the petition by Kamal Sharma was filed on 6.2.2000 and the same was allowed by the Election Commission very next day i.e. on 7.2.2000 by which a direction was issued to the Returning Officer to hold a fresh scrutiny. There is nothing on record to indicate nor it appears probable that before passing the order, the Election Commission issued any notice to Bachan Singh. Apparently the order was passed behind his back. The order of the Election Commission to the effect that the Returning Officer shall take further consequential steps as may become necessary, by treating all earlier proceedings in relation to said candidates, as ab initio void and redraw the list of validly nominated candidates could not have been passed without giving an opportunity of hearing to Bachan Singh. That apart, it has been held by a catena of decisions of this Court that once the nomination paper of a candidate is rejected, the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage. (See N.P. Punnuswami v. Returning Officer AIR 1952 SC 64, Mohind....
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....nce. 26. The election petitioner has examined in all six witnesses, out of whom PW1 Bernard John is Under Secretary of the Election Commission of India, PW2 Ravi Shankar is the Election Kanungo in the District Election Office, Jind and PW3 Som Nath Luthra is the Assistant Chief Election Officer, Haryana and these witnesses have no personal knowledge of the controversy raised but have merely proved some documents. Apart from himself, the election petitioner has strongly relied upon the testimony of PW4 Punnu Ram and PW5 Shri Bhupinder Singh Hooda. PW4 Punnu Ram, who claims to be Clerk in the office of Haryana Pradesh Congress Committee since 1970, went to the extent of denying the signature of Shri Bhupinder Singh Hooda in Form B which was submitted by Bachan Singh though Shri Hooda himself admitted his signature on the said form at three different places during the course of his cross-examination. When questioned, he stated in his cross-examination that he did not know whether Bachan Singh had earlier contested election from 50-Safidon Constituency or had ever fought election as a candidate of the Congress Party. He further stated that he did not know whether Bachan Singh had ev....