Holding

The nomination of Kamal Sharma was rightly rejected; Form B without a seal is valid, must be filed only with the Returning Officer, and extrinsic evidence post‑deadline is inadmissible, rendering the Election Commission’s re‑scrutiny order illegal.

Summary

In the 2000 Haryana Legislative Assembly election, two candidates, Kamal Sharma and Bachan Singh, both claimed to be the official Congress candidate for the Safidon constituency. Both filed Form B with the Returning Officer; Bachan Singh’s Form B, submitted later, rescinded the earlier notice in favour of Kamal and was signed by the authorised party official but lacked the party seal. The Returning Officer rejected Kamal’s nomination, a decision upheld by the Election Commission, but the High Court later set aside the rejection, directing a fresh election. The Supreme Court held that the party seal is not a requirement, that Form B need only be filed with the Returning Officer, and that extrinsic evidence after the nomination deadline cannot be used to determine candidacy. It also found the Election Commission’s order to re‑scrutinise without hearing Bachan Singh illegal and affirmed that Kamal’s nomination was rightly rejected, thereby upholding the election of Ram Phal Kundu.

Issues considered

The validity of a Form B lacking the party seal under the Election Symbols Order, 1968.
Whether Form B must be submitted to the Chief Electoral Officer as well as the Returning Officer.
Whether extrinsic evidence presented after the nomination deadline can be considered to determine the official candidate.
The legality of the Election Commission’s order directing fresh scrutiny without a hearing to the rival candidate.
Whether the rejection of Kamal Sharma’s nomination paper was proper under the Representation of the People Act.
Whether the election of Ram Phal Kundu should be set aside on the ground of an alleged improper nomination rejection.

Legislation cited

Conduct of Election Rules, 1961s. Rule 10, s. Rule 5
Constitution of Indias. Article 324
Election Symbols (Reservation and Allotment) Order, 1968s. para 13, s. para 13A
Representation of the People Act, 1951s. 100, s. 116A, s. 36(4), s. 80, s. 81

Subjects

Election lawNomination rejectionForm BParty sealRepresentation of the People ActElection Symbols OrderExtrinsic evidenceElection petitionCandidate set upValidity of election

Judgment

J. A
' RAM PHAL KUNDU
v.
KAMAL SHARMA

JANUARY 23, 2004
B
[Y.N. KHARE, CJ., S.B. SINHA AND G.P. MATHUR, JJ.)

Representation of the People Act, 1951-Section JOO (1) {c)-
Nomination-Rejection-Validity of-Two candidatesfi"om the same party filing
nominations-Form B submitted by 'B' stated that nomination of 'A' filed c
earlier had been rescinded-Returning Officer rejecting nomination of 'A'-
Office bearer of party signing Form B stating on oath that 'A ' was the official
candidate- 'A' challenging election of 'C' on ground of improper rejection of
nomination-Held, exlrinsic evidence given afler the last date of filing
nomination cannot be considered-Objection not valid-Election Symbols
D
(Resen•ation and Allotment) Order, 1968-Paras 13 and I 3A .
. "'(
Representation of the People Act, 1951-Section 36(4)-Defect of a
'
substantial character-Meaning of-Form B having signature of the person
authorised by the party but not the seal-Held,· not a defect of substantial
character-Election Symbols (Reservation and Allotment) Order, 1968-Paras E
13 and /3A.

In an election to the Legislative Assembly, the respondent filed his
nomination paper as the candidate of the Congress Party. In support of
his nomination, the respondent filed both Form A and Form B before the
,_> Returning Officer. In Form A, the General Secretary of the Congress Party F
had authorised one "BSH" to intimate to the Returning Officer the name
of the approved candidate of the Party. In Form B, "BSH" had
communicated to the Returning Officer the name of the respondent as the
approved candidate of the Congress Party. The respondent filed his
nomination paper on the last date for filing nomination at 12.20 p.m.
G
4
,, On the same day, at 2.50 p.m. one "BS" also filed nomination paper
claiming to be the authorised candidate of the Congress Party. "BS" also
filed Form A and Form B along with his nomination. In Form B filed by
"BS" it was stated that the earlier notice in Form B in favour of the
977 H
978 SUPREME COURT REPORTS [2004] I S.C.R.

A respondent had been rescinded. Form B submitted by "BS" had signature
l •
of "BSH" but did not have the seal of the Congress Party.

At the time of scrutiny of the nomination paper, "BSH" filed an
affidavit before the Returning Officer stating that the respondent was th•e
only person nominated as a candidate by the Congress Party. The
B Returning Officer, after hearing the parties, rejected the nomination paper
of the respondent.

The respondent thereafter filed a petition before the Election
Commission, New Delhi on 6.2.2000 and, by an order dated 7.2.2000, the
C Election ·Commission set aside the order of the Returning Officer and
directed him to conduct fresh scrutiny of nominations. Th·e Returnin:~
Officer again dismissed the objection raised by the respondent.

In the elections, the appellant won by a handsome margin. The
respondent filed an election petition alleging that his nomination paper
D was wrongly rejected by the Returning Officer and therefore,, the election
of the appellant should be set aside and holding of fresh elections should
f
be directed. The respondent, inter a/ia, contended: ' '
(i) Form B submitted by "BS" contained only the signature of
"BSH" and not the seal of the Party and therefore, there was
E no proper authorisation of the Party in his favour;

(ii) Form B was submitted by "BS" only to the Returning Officer
and not to the Chief Electoral Officer and therefore, the
nomination ought to have been rejected;

(iii) Even the Election Commission had held in favour of th•e
F .......
respondent;
(iv) "BSH" had himself filed an affidavit before the Returnin:~
Officer confirming that the respondent was the only authorised
candidate of the Congress Party.

G In his evidence, "BSH" admitted his signatures on the Form H
submitted by "BS" but stated that the said form was not to be submitted •
as no final decision had been taken. The respondent did not examine the
other members of the Central Election Committee of the Congress party
to substantiate his case.

H The High Court allowed the petition filed by the respondent, set aside
R.P. KUNDU v. KAMAL 979

--
.....-<" j_ the election of the appellant and directed the Election Commission lo hold
a fresh election.
A

The appellant filed appeal before the Court.

Allowing the appeal, the Court
B
HELD: I. The nomination paper of respondent was rightly rejected.
Form B submitted by "BS" was perfectly valid and as it contained a clear
recital that notice in Form B given earlier in favour of respondent is
rescinded, he became the candidate of the Congress Party.
1992-D, E; 993-F-GI
c
2. The Election Symbols (Reservation and Allotment) Order, 1968
has been made in exercise of power conferred by Article 324 of the
Constitution of India read with Section 29A of the Representation of the
People Act,1951 and Rules 5 aud IO of the Conduct of Election Rules, 1961
and all other powers enabling it in this behalf by the Election Commission
D
of India. The object is to ensure that the process of election is as general
and fair as possible and that 110 elector should suffer from any handicap
i'
).
in casting his vote in favour of a candidate of his choice. 1991-A-CI

Sadiq Ali v. Election Commission of India and Ors., AIR (1972) SC
187 and Roop Lal Sathi v. Nachhallar Singh. AIR (1982) SC 1559, referred E
to.

3.1. Where a power is gi\'cn to do a certain thing in a certain way,
the thing must be done in that way or not at all and other methods of
performance are necessarily forbidden. 1991-FI
.> F
Taylor v. Taylor (1876) I Ch. D. 426; Nazir Ahmad v. King Emperor
AIR (1936) PC 253; S!ute of U.P. v. Singhara Singh, AIR (1964) SC 358
and Commissioner of Income Tax v. Anjum M. H. Ghaswala (2002( I SCC
633, referred to.
G
3.2. Paras 13 and 13A of the Election Symbols (Reservation and
Allotment) Order, 1968 are exhaustive and lay down the complete
'')'.
procedure for determining whether a candidate has been set up by a
political party. 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 Election Symbols (Reservation and Allotment) H
980 SUPREME COURT REPORTS [2004] I S.C.R.

A Order, 1968 and extrinsic evidence cannot be looked into for this purpose: l ...
unless it is pleaded that the signature of the authorised person on Form 13:
had been obtained from him under threat or by playing fraud upon him.
Where signature is obtained under threat or by playing fraud, it would
be nullity in the eyes of law and the document would be void.
1991-D-E, Fl
B
3.3. It is well settled principle of interpretation that the legislatun~
is deemed not to waste its words or to say anything in vain. The Courts
always presume that the legis.lature inserted every part of the Statute for
a purpose and the legislative intention is that every part of the Statute
C should have effect. 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 of the Election Symbols (Reservation and Allotment) Order, 1968
D wholly redundant. 1992-F-G I

3.4. If instead of deciding the matter in accordance with paras 13 .,
and 13A of the Election Symbols (Reservation and Allotment) Order, 1968,
it is decided on the basis of extrinsic evidence (oral or documentary) givc~n
E subsequent to the last date of filing of nomination paper, it is capable of
good deal of misuse. [993-A-BI

3.5. In Form B submitted by "BS" it was mentioned that the notice
in Form B given earlier in favour of the respondent is rescinded and this
was signed in ink by "BSH". Therefore, in terms of paras 13 and 13A of
F the Election Symbols (Reservation and Allotment) Order, 1968, "BS"
became the official candidate of the Congress Party. [993-G I

4. t. Para 13 of the Election Symbols (Reservation and Allotment)
Order, 1968 does not prescribe that Form B should also contain the seal
of the party. In fact, it lays emphasis upon the signature of the person
G authorised by the party. What is important and decisive is the sign a tu re
in ink of the authorised person and not the seal of the party which can be
made by an ordinary rubber stamp by anyone. [994-F; 995-C-O[

4.2. Section 36 (4) of the Representation of the People Act,1951 lays
H down that the Returning Officer shall not reject any nornination paper
R.P. KUNDU v. KAMAL 981
_) on the ground of any defect which is not of a substantial character. The A
absence of the seal of the Congress Party in the nomination paper of "BS"
cannot be said to be a defect of a substantial character so as to render it
invalid. (995-DI

5. The requirement of paras 13 and 13 A of the Election Symbols
(Reservation and Allotment) Order, 1968 is that Form B should be B
submitted to the Returning Officer. There is no requirement of the
submission of the said Form to the Chief Electoral Officer. (996-B-Cj
Jo.
6.1. 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 the said
c
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 "BS". 11000-F, GI

6.2. Once the nomination paper of candidate is rejected, the Act D
provides for only one remedy, that remedy being by a.1 election petition
to be presented after the election is over, and there is no remedy provided
""\'
at any intermediate stage. Therefore, the order passed by the Election
Commission was not only illegal but also without jurisdiction and the
respondent can get no advantage from the same. 11000-G-H; 1001-AI
E
·1
N. P. Punnuswami v. Returning Officer, AIR (1952) SC 64; Mohinder
Singh Gill v. Chief Election Commission, AIR (1978) SC 851 and Election
Commission v. Shivaji, AIR (1988) SC 61, referred to.

Rakesh Kumar v. Sunil Kumar, 119991 2 SCC 489, distinguished.
F
•. >
7. Unless the respondent fully established his case, it will not be
legally correct to set aside the election of the appellant. The respondent
has not led any independent evidence of unimpeachable character on which
implicit reliance may be placed. The respondent should have examined
other members of the Central Election Committee of Congress Party to G
substantiate his case that the Party had finally selected him as its candidate
,..., and his candidature was never changed. The appellant being of a rival
party and having defeated the Congress candidate could not have led this
kind of evidence. (1001-E-F; 1003-C, DI

Jagan Nath v. Jaswant Singh, AIR (1954) SC 210; Gajanan H
982 SUPREME COURT REPORTS (2004] I S.C.R.

A Krishnanand Bapat v. Dattaii Raghobaji Meghe, 119951 5 SCC 347 and Jeet l_
Mohinder Singh v. Harminder Singh Jassi, 119991 9 SCC 381, referred to.

CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 4262 of
2003.

B From the Judgment and Order dated 8.5.2003 of the Punjab and Haryana
High Court in E.P.No. 15 of 2000.

C.S. Vaidyanathan, Ajay Siwach and S.K. Sabharwal for the Appellant.

R.L. Batta, M.L. Saggar, O.P. Sharda, Ms. Kamini Sharma, Dr. Ramesh
C K. Haritesh, Jasbir Singh Malik, Som Vir Deshwal, Anil Shanna and Ms.
Lalita Kaushik for the Respondent.

The Judgment of the Court was delivered by

G.P. MATHUR, J. I. This appeal under Section 116A of the
D Representation of the People Act, 1951 (hereinafter referred to as "the Act")
has been preferred by the returned candidate Ram Phal Kundu against the
judgment and order dated 8.5.2003 of High Court of Punjab and Haryana by
which the election petition preferred by Kamal Sharma was allowed and the
election of the appellant from 50- Safidon Assembly Constituency to the
E Haryana Vidhan Sabha was set aside and a direction was issued to the Election
Commission of India to hold a fresh election for the said constituency.

2. The Election Commission of India issued a notification on 24.1.2000
calling upon the electors of Haryana to elect 90 members to the Hai·yana
Vidhan Sabha including that from 50-Safidon Assembly Constituency (Dist!.
F Jind). The schedule for holding the 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
G
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
H
R.P. KUNDU v. KAMAL [G.I'. MATHUR, .I.] 983
J 3. The appellant Ram Phal Kundu filed his nomination paper as a A
candidate of Indian National Lok Dal Party (hereinafter referred to as 'Lok
Dal Party'). The respo~dent Kamal Shanna 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
Pa11y and rejected that of Kamal Sharma. The election was held on 22.2.2000 B
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 l 00 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 C
Commission be directed to hold a fresh election to the said Assembly
Constituency. After trial of the petition, the High Court allowed the election
petition on the ground that the nomination paper of Kamal Sharma was
wrongly rejected. Accordingly, the election of the appellant Ram Phal Kundu
was set aside and the Election Commission was directed to hold a fresh
election. D
4. The case set up by Kamal Sharma in the election petition is as
follows:

The election petitioner applied to the Congress Committee for sponsoring
his name for 50-Safidon Assembly Constituency to contest the election as a E
candidate of the said party. The Central Election Committee of the party vide
Press release dated 2.2.2000 selected him as its candidate for the said
Constituency. Shri Motilal Vora, General Secretary of the party issued Form
A in the name of Shri Bhupinder Singh Hooda, President, Haryana Pradesh
_,
Congress Committee as the authorised person to intimate the names of the F
.> candidates to be set up by the pai1y in the election. Shri Bhupinder Singh
Hooda then communicated to the Returning Officer, 50-Safidon Assembly
Constituency the name of the election petitioner Kamal Sharma as an approved
candidate of the Congress Party in Form B. The election petitioner filed his
nomination paper as a candidate of Congress Party at 12.20 p.111. on 3.2.2000
before the Returning Officer. During the course of scrutiny proceedings on G
4.2.2000 it was revealed that another candidate, namely, Bachan Singh had
also filed his nomination paper at 2.50 p.m. on 3.2.2000 claiming himself as
a candidate set up by the Congress Party. The scrutiny proceedings were
adjourned to 5.2.2000. Shri Bhupinder Singh Hooda filed an affidavit dated
4.2.2000 before the Returning Officer that the election petitioner Kamal H
984 SUPREME COURT REPORTS [2004) I S.C.R.

A Sharma was the only person nominated as a candidate of the Congress Party l
and any other unsealed authorisation letter of the party submitted by someone
else was not valid. Shri Bhupinder Singh Hooda also wrote to the Chief
Election Commissioner, New Delhi that Kamal Sharma was the only oftici1ally
approved candidate of the Congress Party. The scrutiny proceedings were
B conducted by the Returning Officer on 5.2.2000, who after hearing counsel
for the parties, wrote out a hand written order dismissing the objection filed
by the election petitioner Kamal Sharma and rejecting his nomination paper.
The nomination 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
C paper were duly signed and stamped by the seal of the party, whereas Fonn
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 fil1:d a
D 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. t-

on 8.2.2000. The Returning Officer, thereafter, gave notice to election
petitioner Kamal Sharma, Bachan Singh and Shri Bhupinder Singh Hooda,
E 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 candidate of the party. However, the Returning Officer passed an
order at 4.30 p.111. on 8.2.2000 dismissing the objection raised by the election
petitioner and allotted tile Sym bot of the Congress Party to Bachan Singh.
The result of the election was declared on 25.2.2000 and out of 85,742 valid
F votes polled, the appellant Ram Phal Kundu secured 45,382 valid votes and .....
was declared as elected. In para 25 of the petition it is pleaded that there was
no proper authorisation by the Congress Party in favour of Bachan Singh as
the Form B submitted by him did not contain the seal of the party and on
account of wrongful rejection of the nomination paper of the election petitioner
G Kamal Sharma, the election of Ram Phal Kundu was vitiated.
5. The appellant Ram Phal Kundu contested the election petition on
the ground, inter alia, that though the election petitioner produced Forms A '( •
and B before the Returning Officer that he is the nominee of the Congress
Party, but subsequently Bachan Singh produced Fonns A and B that he had
H been nominated by the Congress Party as a candidate for 50-Safidon Assembly
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.) 985
J Cons'tituency. In Form B submitted by Bachan Singh the nomination 'of the A
election petitioner Kamal Shanna was rescinded and it was specifically
mentioned that the Congress Party had changed its \:andidate and had
nominated Bachan Singh as its official candidate. The notice in Form B as
per amended Clause 13 of Election Symbols (Reservation and Allotment)
Order, 1968 (hereinafter referred to as 'the Symbols Order') is required to be B
produced before the Returning Officer before 3.00 p.m. and there is no
requirement that the same should also reach or produced before the Chief
Electoral Officer. The nomination paper of election petitioner was filed along
with requisite forms at 12.20 p.m. on 3.2.2000 whereas Bachan Singh had
filed his nomination paper at 2.50 p.m. on 3.2.2000 and had submitted Forms
A and B. Thereafter, no further notice in Fonn B was received by the Returning C
Officer. The Form B submitted by the election petitioner is dated 2.2.2000
whereas the Form B submitted by Bachan Singh at 2.50 p.m. on 3.2.2000
wherein Shri Bhupinder Singh Hooda had himself mentioned that the
candidature of the election petitioner Kamal Sharma was rescinded is dated
3 .2.2000. It is further pleaded that the letter of Shri Bhupinder Singh Hooda
said to have been submitted on 4.2.2000 before the Returning Officer, is of D
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 E
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 F
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 matter. No appeal or revision lies to the Election. G
Commission of India against an order rejecting a nomination paper. In para
22 it is pleaded that Bachan Singh contested the election as a candidate of
the Congress Party and the appellant won the said election by a margin of
8,324 votes, having secured more than 55% of the actual votes polled. The
nominee of the Congress Party was very much there in the election fray but
the appellant was declared as elected. All the important leaders of Congress H
986 SUPREME COURT REPORTS [2004] I S.C.R.

A Party at the State level and the national level, including Shri Motilal Vora l
and others had campaigned for Bachan Singh. In the newspapers of 3.2.2000
it had been reported that the Congress Party had changed its candidate from
Kamal Sharma to Bachan Singh.

6. It may be mentioned at the very outset that the election petitioner
B Kamal Shanna impleaded the returned candidate Ram Phal Kundu as the ~;ole
respondent and no other person was joined as party to the election petition.
Though there is not even a whisper against the appellant Ram Phal Kundu
and the entire allegations are against Bachan Singh but he was not arrayed ..l..1
as a party to the election petition. Strictly speaking it is not a case of rejection
C of nomination paper but of ascertaining who was the candidate of Congress
Party as two persons had filed nomination papers claiming to be \the candidate
of the said party. Since only one person can be a candidate of a political party
and after acceptance of the candidature of Bachan Singh, the nomination
paper of'the election petitioner Kamal Sharma could be treat,ed as that of an
independent candidate. But as it was not subscribed by JO proposers be:ing
D electors of the Constituency, it had to be rejected in view of First Proviso to
Sub-section(!) of Section 33 of the Act. The non-joining of Bachan Singh
may not result in dismissal of the election petition in terms of Section 82 of .
the Act. However in absence of Bachan Singh having been joined as party
to the election petition, an extremely difficult burden has been placed upon
E the appellant Ram Phal Kundu, who belongs to rival party (Lok Dal), to lead
evidence regarding the internal affairs of Congress Party and to show that the
nomination made in favour of Kamal Sharma had been subsequently rescinded
and the party had set up Bachan Singh as its official candidate.

7. The main question which requires consideration is as to which of
F 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 Elf:ction Symbols
(Reservation and Allotment) (Amendment) Order, 1999, which came i1nto
force on 20.5. I999, which govern the situation read as under:

G "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 -
H (a) the candidate has made the prescribed declaration to this effect
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.] 987

J ' . ,. in his nomination paper; A
~ (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
B
or any other office bearer of the party, and the President, Secretary
or such other office bearer sending the notic~ has been authorised
by the party to send the notice;
.....
(d) the name and specimen signature of such authorised person are
communicated by the party, in Form A, to the Returning Officer c
of the constituency, and to the Chief Electoral Officer of the
State or Union Territory concerned, not later than 3 p.m. on the
last date for making nominations; and

(e) Forms A and B are signed, in ink only, by the said office bearer
or person authorised by the party : D
Provided that no fascimile 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.

/ 3A. Substitution of a candidate by a political party-For the removal E
of any doubt, it is hereby clarified that a political party which has
given a notice in Form B under paragraph 13 in favour of a candidate
may rescind that notice and may give a revised notice in Form B in
favour of another candidate for the constituency :

Provided that the revised notice in Form B, clearly indicating F
,.> therein that the earlier notice in Form B has been rescinded, reaches
the Returning Officer of the constituency, not later than 3 p.m. on the
last date for making nominations, and the said revised notice in Form
B is signed by the authorised person referred to in clause (d) of
paragraph 13 :
G
Provided further that in case more than one notice in Form B is
' ). received by the Returning Officer in respect of two or more candidates,
and the political party fails to indicate in such notices in Form B that
the earlier notice or notices in Form B, has or have been rescinded,
the Returning Officer shall accept the notice in Fonn B in respect of H
988 SUPREME COURT REPORTS [2004] I S.C.R.

A the candidate whose nomination paper was first delivered to him, and
the remaining candidate or candidates in respect of whom also notice
i ,..
or notices in Form B has or have been received by him, shall not be
treated as candidates set up by such political party."

In terms of paras 13 and l 3A of the Symbols Order, a candidate shall
B be deemed to be set up by a political party if the following conditions
are fulfilled :
(1) The candidate has made the prescribed declaration to that effect
in his nomination paper. ....
(2) A notice by the political party in Form B to that effect has been
c delivered to the Returning Officer not later than 3.00 p.m. on the
last date for making nomination.
(3) The notice in Fonn B is signed by 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 .
D
(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 dale for
making nomination.
E
(5) A political party which has given a notice in Form B in favour
of candidate may rescind that notice and may give a re:vised
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
F 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
G ofrubber stamp and no form transmitted by fax shall be accepted.

It may be noted that while Form A has to be submitted to both the
Returning Officer of the Constituency and to the Chief Electoral Officer of
the State, but there is no such requirement with regard to Form B. Form B
" .
has to be delivered only to the Returning Officer of the Constituency. The
H Symbols Order has made a specific provision that Forms A and B have to be
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.] 989
signed in ink only and signature by means of rubber stamp, etc. shall not be A
accepted. In terms of the language used in paras 13 and I 3A of the Symbols
Order there is no requirement of putting the seal of the pa1ty in Fonns A and
B.

8. There is no dispute that Shri Motilal Vora, General Secretary of the
Congress Party had sent a communication in Form A that Shri Bhupinder B
Singh Hooda had been authorised by the Indian National Congress to intimate
the names of the candidates proposed to be set up by the party at the election
and the said document Ex.PW2/M is on the record. A notice in Form B in
favour of 'Kamal' dated 2.2.2000 signed in ink by Shri Bhupinder Singh
Hooda was given by the election petitioner to the Returning Officer at 12.20 C
p.m. and it is marked as Ex. PW2/L. Another notice in Form B dated 3.2.2000
in favour of Bachan Singh and signed in ink by Shri Bhupinder Singh Hooda
was given by Bachan Singh to the Returning Officer at 2.50 p.m. on 3.2.2000
and it is marked as Ex.PW4/A. At the bottom of this form it is mentioned as
under :
D
'The notice in 'Form B' given earlier in favour of Shri Kamal s/o
Janardhan as party's approved candidate, Smt Kusum w/o Kamal as
party's substitute candidate is hereby rescinded."

Below this writing there is signature of Shri Bhupinder Singh Hooda.
In his cross-examination PWS Shri Bhupinder Singh Hooda has admitted that E
Form B in favour of Bachan Singh contains his signature. He stated as under:

" ......... It is correct that document Ex.PW4/A which is Fonn B in
favour of Shri Bachan Singh Arya bears my signatures. Volunteered
I am admitting only my signatures and not the contents of the
Form ........ " F
Towards the end of his cross-examination he stated as under :

"On Form B issued to Shri Bachan Singh Arya I only own signature
on this Form but I do not own the contents given in it."

Thus, there is no dispute that Form B submitted by Bachan Singh
G
contained a categorical statement to the effect that the notice given in Fonn
~ B earlier in favour of Kamal Sharma as party's approved 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 ofthe Congress Party. There is also H
990 SUPREME COURT REPORTS [2004] I S.C.R.

A no dispute that the Form B submitted by Bachan Singh was lafer ir. point of i
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
B mentioned as a candidate for 50-Safidon Assembly Constituency. In the Right
he collected Forms A and B from the Camp Office and submitted hi.s
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 Safi don Constituency
c 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. He has also stated that the Returning Officer had a telephonic talk
with Shri Hooda and thereafter an affidavit duly sworn by him on 4.2.2000 (

that Kamal is the only nominated candidate of the Congress Party, was also
D given. This affidavit also bears the endorsement of the Returning Officer that
the same was received by him at 11.00 a.m. on 4.2.2000. PW5 Shri Bhupindcw
Singh Hooda has deposed that the name of Bachan Singh was unde1r +
consideration as a Congress candidate but it was never finalised and, therefore,
no Form B was issued to him and that Kamal Sharma was the candidate of
the party. At about 3.30 p.m. on the last date of filing nomination, he received
E
information that two nomination forms had been submitted on behalf of the
Congress Party and thereafter he sent a letter through special messenger to
the Returning Officer that Kamal Sharma is the official candidate. After
receiving a telephonic call from the Returning Officer on 4.2.2000, he info1111ed
him that Kamal Sharma is the official candidate and thereafter he sent an
F affidavit to that effect. He has further deposed that he wrote a letter to the
·"-. .
Chief Election Commissioner and Chief Electoral Officer in this regard. Thus, .. _
the election petitioner Kamal Sharma has led evidence to show that after it
had been revealed that Bachan Singh had also filed his nomination paper as.
a candidate of the Congress Party, he lodged a protest before the Returning
Officer on the next day i.e. 4.2.2000 and Shri Bhupinder Singh Hooda
G telephoned to him and also sent a letter and an affidavit that only Kamal
Sharma was the official candidate. But all these letters and affidavits, etc.
were received by the Returning Officer on 4.2.2000 and on subse:quent dates.
_.,
I0. The question that arises is whether this evidence, which is all
H subsequent to the last date of filing of the nomination paper, can be looked
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.) 991
.1 into in order to ascertain as to who had been set up as a candidate by the A
Congress Party.

11. The Election Symbols (Reservation and Allotment) Order, 1968
has been· made in exercise of power conferred by Article 324 of the
Constitution read with Section 29A of the Representation of the People Act,
1951 and Rules 5 and 10 of the Conduct of Election Rules, 1961 and all other B
powers enabling it in this behalf by the Election Commission of India. In
Sadiq Ali v. Election Commission of India and Ors., AIR (1972) SC 187, the
Court 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 C
casting his vote in favour of a candidate of his choice. In Roop Lal Sathi v.'
Nachhallar 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 · D
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 E
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 to indicate in such notices in Form B that the earlier
notice or notices have been rescinded. Thus, paras 13 and I 3A are exhaustive
and lay down the complete procedure for determining whether a candidate p
has been set up by a political party. The Rull! laid down in Taylor v. Taylor,
(1876) 1 Ch.D. 426 that where a power is given to do a certain thing in a
certain way, the thing must be done in that way or not at all and that other
methods of performance are necessarily forbidden was adopted for the first
time in India by the Judicial Committee of the Privy Council in Nazir Ahmad
v. King Emperor, AIR (1936) PC 253. The question for consideration was G
. whether the oral evidence of a Magistrate regarding the confession made by
">. an accused, which had not been recorded in accordance with the statutory
provisions viz. Section 164 Cr.P.C. would be admissible. The First Class
Magistrate made rough notes of the confessional statements of the accused
which he made on the spot and thereafter he prepared a memo from the H
992 SUPREME COURT REPORTS [2004] I S.C.R.

A rough notes which was put in evidence. The Magistrate also gave oral evidence
of-the confession made to him by the accused. The procedure of recording
confession in accordance with Section 164 Cr.P.C. had not been followed. Jt
was held that Section 164 Cr.P.C. having made specific provision for recording
of the confession, oral evidence of the Magistrate and the memorandum
B made by him could not be taken into consideration and had to be rejected.
In State of U.P. v. Singhara Singh, AIR (1964) SC 358, a Second Class
Magistrate not specially empowered, had recorded confessional statement of
the accused under Section 164 Cr.P.C. The said confession being inadmissible,
the prosecution sought to prove the same by the oral evidence of the Magistrate,
who deposed about the statement given by the accused. Relying upon the rul•e
C laid down in Taylor v. Taylor (supra) and Nazir Ahmad v. King Emperor
(supra) it was held that Section 164 Cr.P.C. which conferred on a Magistrat•e
the power to record statements or confessions, by necessary implication,
prohibited a Magistrate from giving oral evidence of the statements or
confessions made to him. This principle has been approved by this Court in
a series of decisions and the latest being by a Constitution Bench in
D Commissioner of Income Tax v. Anjum M.H. Ghaswa/a, [2002] l SCC 633
(para 27). Applying the said principle, we are of the opinion that the question
as to who shall be deemed to have been set up by a political pa1ty 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 i.t
E 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
F 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
G 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 that
every part of the Statute should have effect. See J. K. Collon Spinning &
Weaving Mills Co. v. State of U.P., AIR (I 961) SC 1170 and Moh. Ali Khan
v. The Commissioner of Wealth Tax, AIR (1997) SC 1165 and C.l.T. v.
H Kanpur Coal Syndicate, AIR (1965) SC 325.
R.P. KUNDU v. KAMAL (G.P. MATHUR. J.] 993
14. If instead of deciding the matter in accordance with paras 13 and A
13A of the Symbols Order, it is decided on the basis of extrinsic evidence
(oral or documentary) given subsequent to the last date of filing of nomination
paper, it is capable of good deal of mis use. Governments are sometimes
formed with razor thin majority or with the support of a small splinter group
or of independent candidates. A political party may adopt a device of filing B
nomination papers of two candidates. If the candidate of the party wins well
and good, but if the candidate loses, the other candidate whose nomination
paper wou Id have been rejected may file an election petition, le~.d extrinsic
evidence to show that he was the real candidate of the party and thereby get
the election of the returned candidate set aside.

15. An election is not just a contest between two persons. The whole
c
constituency is involved in the election process which has to send its
representative to the Assembly or Parliament. The entire governmental
machinery has to work for smooth holding of the election and huge expenditure
is incurred from the public exchequer. The date of polling is declared a
public holiday when all government offices, commercial establishments and D
institutions are closed, resulting in loss of productivity. Public interest demands
that there should be no vagueness or uncertainty regarding the candidature of
a person seeking to contest the election as a candidate ofa recognised political
party. Therefore, this exercise should be done strictly in accordance with
paras 13 and 13A of the Symbols Order and extrinsic evidence given in E
derogation thereof cannot be looked into.

16. There is no dispute that along with his nomination paper which
was filed at 2.50 p.m. on 3.2.2000 Bachan Singh had submitted Forms A and
B and thereafter no further notice in Form B was received by the Returning
Officer. Shri Motilal Vora, General Secretary of the Congress Party had F
issued Form A in the name of Shri Bhupinder Singh Hooda authorising him
to intimate the names of the candidates to be set up by the Congress Party
in the election. This Form contained 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 Forni B given earlier in favour of Kamal Sharma
is rescinded and this was signed in ink by Shri Bhupinder Singh Hooda. G
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 H
994 SUPREME COURT REPORTS [2004] I S.C.R.

A nor Shri Hooda had raised any objection regarding the signature on Form B j
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
B on 7 .2.2000 the Returning Officer heard the matter again where both the
parties appeared with their respective counsel and Shri Hooda was also present.
Shri Hooda admitted his signature on Form B submitted by Bachan Singh but
stated that he had instructed the person concerned not to give the said Form
to Bachan Singh till he gave his consent for the same on telephone and that
c he never gave any such consent. He also said that as the said Form B did not
bear the seal of the Congress Party, it was liable to be rejected and Kamal
was the official candidate of the Congress Party. The Returning Officer held
that the acceptance of signature on Form B by Shri Hooda established thar.
the same had been issued by him and the explanation offered by him for
treating Kamal as the official candidate, was an internal matter of the Congress
D Party. He accordingly held that Form B submitted by Bachan Singh was
perfectly valid and accordingly he shall be treated as the official candidate
of the Congress Party and consequently the nomination paper of Kamal Sharma
was rightly rejected. We are of the opinion that the view taken by the Returning
Officer in his orders dated 5.2.2000 and 8.2.2000 being in accordance with
E law was perfectly correct.
17. Learned counsel for the respondents has laid great stress upon the
fact that there was no seal of Congress Party on Form B which was submitted
by Bachan Singh to the Returning Officer and consequently his nomination
paper was invalid. It may be noticed that para 13 of the Symbols Order does
F not prescribe that Form B should also contain the seal of the pa11y. In fact,
....
it lays emphasis upon the signature of the person authorised by the party and
says that the same should be in ink and that no fascimile signature or signature
by means of rubber stamp, etc. shall be accepted and no form transmitted by
fax shall be accepted. In the proforma of Form B given ,in the Symbols Order
G a note has been appended at the end of the Form which reads as under :
"N.B.

I. This must be delivered to the Returning Officer not later than 3
p.m. on the last date for making nominations.
H 2. Form must be signed in ink by the office bearer(s) mentioned
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.) 995

j above. No fascimile signature or signature by means of rubber A
stamp, etc., of any office bearer shall be accepted.
'
J. No form transmitted by fax shall be accepted.
4. Para 2 of the Form must be scored off, if not applicable, or must
be properly filled, if applicable."
B
The Form B which has been submitted by Kamal Sharma no doubt
bears 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
I...,
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 difficu It to emulate and is kept in a safe
custody under the charge of a responsible person, which may not be available c
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 D
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 E
the extent of saying that though Bachan Singh had submitted Form A and
Form B along with his nomination paper before the Returning Officer but no
Form A in respect of his candidature was submitted by him to the Chief
Electoral Officer and, therefore, the same would not have the effect of
rescinding the candidature of Kamal Sharma. Learned counsel for the
respondent has also refeITed to the amendment in Handbook for Returning
F
>-~
Officers by which para I0.3(i) was substituted by the following sub-para :

"Nomination paper filed by a candidate in which he has claimed to
have been set up by a recognised National or State Party and which
is subscribed by only one elector as proposer will be rejected, if a G
notice in writing to that effect has not been delivered to the Returning
Officer of the Constituency and the Chief Electoral Officer of the
~ ).
State by an authorised office-bearer of that political party by 3.00
P.M. on the last date for making nominations (Notice in Form 'A' is
required to be submitted to the Chief Electoral Officer and the
'l Returning Officer concerned and notice in Form 'B' is to be submitted H
996 SUPREME COURT REPORTS [2004] 1 S.C.R.

A fo the Returning Officer)." i
On the basis of the above amendment of the Handbook it has been
urged that Form B was also required to be submitted to the Chief Electoral
Officer and as the same.had not been done by Bachan Singh, his candidature
could not be regarded as valid.
B
19. We are unable to accept the submission made. The requirement of
paras 13 and I 3A of the Symbols Order is that Form B should be submitt,ed
to the Returning Officer. There is no requirement of the submission of the
said Form to the Chief Electoral Officer. The Handbook for Returning Office:rs
.,.,
contains instructions which have been issued by the Election Commission for
c the smooth holding of the election and being merely instructions cannot
override the provisions of the Statute, Rules or the Order. In fact in the very
first para of the first page of the Handbook in Chapter I titled as
"PRELIMINARY" it is written as under :

"However, please note that this Handbook cannot be treated as
D exhaustive in all respects and as a substitute for various provisions of
election law governing the conduct of election."

The language used in the bracket in the substituted sub-para I0.3(i)
..
clearly mentions that notice in Form B is to be submitted to the Returning
Officer alone, which is also the mandate of para J3(b) of the Symbols Ord<:r.
E The requirement of para 13(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
F
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 Shanna 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
G 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. .t_ J

2 I. Learned counsel for the respondent has submitted that Central
Election Committee of the Congress Party had selected the candidates for
H contesting the election and from 50-Safidon Assembly Constituency, the narne I
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.) 997
of Kamal Sharma had been decided. For this reliance is placed on the testimony A
of PW4 Punnu Ram who claims to be working as clerk in the office of
Haryana Pradesh Congress Committee since 1970 and PWS Shri Bhupinder
Singh Hooda. PW4 has deposed that the parliamentary body of All India
Congress Committee selects the candidates while PW5 has deposed that the
candidature is finally decided by the Central Election Committee of the
Congress Party. PW4 has proved a list Ex.PW.4/C of candidates dated 2.2.2000
B
1
which bears the signature of Shri Oscar Fernades, General Secretary, AICC.
At the top of the list it is mentioned-"AICC Press Release". It is not an
' -'I original copy but a .photocopy. The case of the appellant is that the aforesaid
list was not a final list but was some kind of a tentative list and subsequently
the Central Election Committee of the Congress Party decided the candidature c
of Bachan Singh Arya. PW2 Ravi Shankar, Election Kanungo, District Election
Office, Jind has proved a list of the candidates which was submitted by
Bachan Singh before the Returning Officer and is marked as Ex.PW2/S. In
this list the name of Bachan Singh Arya is shown as a candidate for 50-
Safidon Assembly Constituency. This list also bears the seal of Indian National
Congress. It is important to note here that in the list Ex.PW4/C, the names D
of the candidates for three Constituencies, viz., Nos.2-Naraingarh, 53-
~
Ballabhgarh and 54-Palwal were not mentioned and for Constituency No.51-
Faridabad, the name of Gyan Chand was shown. However, the list PW2/S,
wherein the name of Bachan Singh Arya has been shown, is a conl~lete list
of all the 90 Constituencies wherein the names of the candidates for E
Constituency Nos.2. 53 and 54 have also been mentioned. The name of A.C.
Chaudhary is shown for Constituency No.51-Faridabad after deletion of the
r' name of Gyan Chand. Both PW4 Punnu Ram and PW5 Shri Bhupinder Singh
1-looda have admitted in their statement that the candidature of Gyan Chand
was changed and finally A.C. Chaudhary had contested the election as an
loo/~. official candidate for the Congress Party for 51-Faridabad Constituency. PW5 F
has further admitted that three persons whose names are mentioned in the list
Ex.PW2/S for Constituency Nos. 2, 53 and 54 actually contested the election
as the official candidates for Congress Party. This conclusively establishes
that the list dated 2.2.2000 (Ex.PW4/C) wherein the name of Kamal Sharma
is mentioned as a candidate, was not the final list but was some so11 of a G
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
f
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 1-laryana." There appears
to be no reason to doubt the correctness of list Ex.PW2/S which shows the H
998 SUPREME COURT REPORTS [2004] .I S.C.R.

A 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
B 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 go to any extent for supporting the list filed by him. ~,

C 22. It is pleaded by Kamal Sharma in the election petition that after
conclusion of the scrutiny proceedings, the Returning Officer passed a detailed
order on 5.2.2000 rejecting his nomination paper and, thereafter he preferred
a petition before the Chief Election Commission, New Delhi on 6.2.2000.
The Election Commission vide its order dated 7.2.2000 accepted his petition
and set aside the order dated 5.2.2000 of the Returning Officer and further
D directed him to hold fresh scrutiny on 8.2.2000 after giving notice and ensuring
the presence of Shri Bhupinder Singh Hooda. Learned counsel for the
respondent has submitted that when the re-scrutiny was done by the RetrJrning
Officer, Shri Bhupinder Singh Hooda was present and he made a statement
before him that though Form B submitted by Bachan Singh contained his
signature but the same was never validly issued by his office or by the party
E
and that Kamal Shanna was the official candidate of the Congress Party. It
has been urged that in view of this clear and categorical stand of Shri Bhupinder
Singh Hooda, the Returning Officer committed manifest error of law in
maintaining his earlier order wherein the candidature of Kamal Sharma had
been rejected. The High Court while dealing with this aspect of the case has
F observed that "After the categorical stand adopted by Shri Hooda before the ,._,.
Returning Officer and in view of the explicit directions issued by the Election
Commission of India vide order Ex.PW Ill the Returning Officer had really
no option but to accept the statement of Shri Hooda and treat the petirtioner
as an official candidate of the Congress Party". After noticing the statement.
G of Shri Bhupinder Singh Hooda, the High Court held as under :
"The said function was apparently a quasi judicial function and once
the rescrutiny was ordered by the Election Commission of India and
the same was conducted in the presence of the various candidates and
in the presence of the authorised person of the Congress Party, namely,
Shri Bhupinder Singh Hooda, then the Returning Officer was expected
I-I

'
R.P. KUNDU v. KAMAL [G.P. MATHUR. J.] 999
to decide the matter keeping in view the various facts and A
circumstances of the case and the documents on the record and the
statement made by Shri Hooda. Apparently, he has not done so. In
this view of the matter the order dated February 8, 2000 Ex.PW2/H
passed by him, whereby the nomination papers of the petitioner have
been rejected, is clearly unsustainable in law and improper under the B
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 C
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 D
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 Ofiicer for the said 50-Safidon Constituency shall cause a E
re-scrutiny of the nomination papers of the aforesaid candidates,
namely, Shri Kamal and Shri Bachan Singh in accordance with the
relevant provisions of the Constitution, Representation of the People
Act, 1951 and the Election Symbols (Reservation and Allotment)
Order, 1968 and the pronouncements of the Hon 'ble Supreme Court, F
particularly the pronouncement in the case of Rakesh Kumar v. Sunil
Kumar [1999] 2 SCC 489, on the aforementioned issue as to who
should be' treated as the official candidate of the Indian National
Congress. The Returning Officer on re-scrutinising the nomination
papers of the aforesaid candidates, shall also take further consequential
steps as may become necessary, by treating all earlier proceedings in G
relation to said candidates, as ab inilio void and redraw the list of
validly nominated candidates."

For passing the aforementioned order, the Election Commission basically
relied upon a decision of this Court in Rakesh Kumar v. Suni/ Kumar (1999]
2 sec 489. It is important to note that in this case the last date of filing H
1000 SUPREME COURT REPORTS [2004) I S.C.R.

A nominations was 20.1.1997 and the date of polling was 6.2.1997 and, therefore, i ~

the case related to a period prior to the amendment of Symbols Order on
20.5.1999 by which para l 3A has been added. Here, two persons, namely,
Sunil Kumar and Veer Abhimanyu had submitted Forms A and B claiming
to be candidate of Bhartiya Janta Party. At the time of scrutiny, the Returning
Officer suo moto raised an objection to the effect that since BJP had sel up
B more than one candidate, therefore, none could be treated as a candidate of
said political party and rejected the nomination papers of both Sun ii Kumar
and Veer Abhimanyu. Sunil Kumar made an application stating that he was
the official candidate of the party and he requested for 24 hours tinw to ~'
produce an official confirmation of his candidature but the application was
c rejected and no time was given, though no other candidate (including Veer
Abhimanyu) had raised any objection. It was in these circumstances thait it
was held by this Court that the Returning Officer ought to have granted him
time to meet the objection in the interest of justice and fair play. This authority
can have no application now on account of amendment to the Symbols Order
which lays down a complete procedure for acceptance of nomination paper
D of a candidate set up hy a recognised political party and substitution of a
candidate. The factual situation here is also 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 n,ext
day i.e. on 7.2.2000 by which a direction was issued to the Returning Officer
E
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
F all earlier proceedings in relation to said candidates, as ab initio void and J...-, ...
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
G over, and there is no remedy provided at any intermediate stage. See N.P.
Punmiswami v. Returning Officer, AIR ( 1952) SC 64, Mohinder Singh Gill
v. Chief Election Commission, AIR ( 1978) SC 851, Election Commission v. .J. -

Shivaji AIR (1988) SC 61. Therefore, the order passed by the Election
Commission on 7.2.2000 was not only illegal but was also without jurisdiction
H and the respondent Kamal Sharma can get no advantage from the same. The
R.P. KUNDU v. KAMAL [G.P. MATHUR, .1.) 1001

inference drawn and the findings recorded by the High Court on the basis of A
' ~ the order of the Election Commission, therefore, cann<;>t be sustained.

25. Shri Bhupinder Singh Hooda has admitted in his cross-examination
that Bachan Singh.Arya had contested the election from 50-Safidon Assembly
Constituency and had won. He was a Minister when the Congress Party was
in power. He had also contested in the year 1996 as a Congress candidate but B
had lost. The statements of PW4 and PW5 show that it is the Central Eiection
Committee of the Congress Party which is the final authority to select a
candidate to contest the election. Shri Bhupinder Singh Hooda, being President
' " of the Party, was a member of the Central Election Committee. He, no doubt,
supported the candidature of Kamal Sharma but no other member of the
Central Election Committee was examined as a witness to prove that he was
c
the final choice of the party. Shri Hooda has admitted that the name of
Bachan Singh was under consideration. Before the Returning Officer he had
stated that though Form B of Bachan Singh contained his signature but he
had instructed that the same should not be issued to him till he gave instructions
in that regard on telephone which he never gave, which also shows that there D
was uncertainty about the candidature. The success or defeat of a political
party is good deal attributed to the President of the party. Shri Hooda being
-+
the President of Haryana Pradesh Congress Party would certainly be interested
in having the election of the winning candidate of the rival party set aside,
more so here when he seems to be very much interested in Kamal Sharma.
E
There can be differences amongst the members regarding the choice .of a
candidate. In this background, Kamal Shanna should have examined other
members of the Central Election Committee of Congress Party to substantiate
his case that the Party had finally selected him as its candidate and his
candidature was never changed. The appellant being of a rival party Lok Dal
and having defeated the Congress candidate could not have led this kind of F
,,.~ evidence.

26. The election petitioner has examined in all six witnesses, out of
whom PW I 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, G
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 H
1002 SUPREME COURT REPORTS [2004] I S.C.R.

A 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
B 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 ever remained a Minister. It is not possible to
believe that a person who had been serving as a Clerk in the Congress office
at Chandigarh for 30 years would not be knowing that Bachan Singh had
earlier contested election as a Congress candidate twice and had remained a
c Minister. This shows that he has scant regard for truth and can go to any
extent to help the election petitioner. It will, therefore, not be safe to rely
upon his testimony. Shri Bhupinder Singh Hooda being President of Haryana
Congress Party would not be favourably inclined towards the appellant who
is of the rival Lok Dal Party and would certainly be interested in the success
of the Election Petition so that the election of the appellant may be set aside.
D He is, therefore, not an independent witness. The election petitioner has thus
not led any independent evidence of unimpeachable character on which implicit
reliance may be placed. +
27. There is another aspect of the case which deserves notice. Kamal
E Sharma did not want to contest as an independent candidate but as a candidate
of Congress Party. Shri Hooda has clearly admitted in his cross-examination
that he instructed all the workers to campaign for the Congress candidates
and after withdrawal, Bachan Singh was adopted as the Congress candidate
from 50-Safidon Constituency. The evidence adduced by the appellant Ram
Phal Kundu shows that all the important Congress leaders like Shri Motilal
F Vora, Smt. Sheila Dixit, Shri Bhajan Lal and others campaigned for Bachan
Singh. Thus, a candidate set up by the Congress Party contested the election >- •
for whom all the party workers and important leaders campaigned. The
appellant secured 45,382 i.e. 55% of the total valid votes polled and thus won
by an overwhelming majority. The appellant played absolutely no role of any
G kind in the rejection of nomination paper of Kamal Sharma on account of
acceptance of Bachan Singh as a candidate of Congress Party. It was an inter
se dispute between two persons, each claiming to be candidate of the same
party. It will be apposite to refer to a well settled principle in election "' ..
jurisprudence. After referring to earlier decisions in Jagan Nath v. Jaswant
Singh, AIR (1954) SC 210 and Gajanan Krishanand Bapat v. Dallaji
I-J Raghobaji Meghe, (1995] 5 SCC 347, this Court in .feet Mo/under Singh v.
R.P. KUNDU v. KAMAL [G.P. MATHUR, J.] 1003
Harminder Singh Jassi, [ 1999] 9 SCC 381 stated as under : A
''The success of a candidate who has won at an election should not
be lightly interfered with. Any petition seeking such interference must
strictly conform to the requirements of the law. Though th~ purity of
the election process has to be safeguarded and the court shall be
vigilant to see that people do not get elected by flagrant breaches of B
law or by committing corrupt practices, the setting aside of an election
involves serious consequences not only for the returned candidate
and the constituency, but also for the public at large inasmuch as re-
election involves an enormous load on the public funds and
administration."
c
Therefore, unless the election petitioner fully established his case, it
will not be legally correct to set aside the election of the appellant. As
discussed eMlier, Kamal Sharma has failed to do so.

28. The appeal is, therefore, allowed and the judgment and order dated D I
8.5.2003 of the High Court is set aside. The election petition filed by Kamal
Sharma is dismissed. The appellant will be entitled to his costs both here and
+ in the High Court.

B.K.M. Appeal allowed.
E