KAMENG DOLO versus ATUMWELLY

Citation: [2017] 5 S.C.R. 114 · Decided: 09-05-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Cited by 2 judgment(s) · cites 15 · see the full citation network in Lexace

Judgment (excerpt)

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[2017] 5 S.C.R. 114 
KAMENG DOLO 
v. 
ATUMWELLY 
(Civil Appeal No. 2991 of2017) 
MAY09,2017 
[DIPAK MISRA AND A. M. KHANWILKAR, JJ.] 
Representation of the People Act, 19 51: 
ss.37 and 100(1)(d)(iv) - Withdrawal of candidature -
Propriety of - Election petition challenging legality and validizv of 
C election of the appellant to State Legis/(Jtive Assemb~v on the ground 
of non-compliance of provisions of s.37 - High Court declared the 
election as void - On appeal, held: In the present case there has 
been total non-compliance of s.37 - Non- compliance of provisions 
of s. 3 7 has materially affected the result of the election of the 
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returned candidate as transgression of such statutory provision 
tantamounts to sacrilege of democracy. 
Dismissing the appeal, the Court 
HELD: 1.1 On a plain reading of section 37 of 
Representation of the People Act, 1951, it is clear that a candidate 
E is entitled to withdraw the candidature by notice in writing and 
the said notice shall contain such particulars as may be prescribed 
and the said notice shall be signed by him and delivered before 
three O'clock in the afternoon on the date fixed under Clause (c) 
of Section 30 to the Returning Officer. The said notice, as sub-
section (1) of Section 37 lays down, is to be delivered to the 
F Returning Officer either by the candidate in person or by his 
proposer or election agent who has been authorised in this behalf 
in writing by such candidate. Sub-section (2) of Section 37 
prescribes that no person who has given a notice of withdrawal of 
his candidature under sub-section (1) shall be allowed to cancel 
G the notice. That reflects the sanctity of withdrawal by a candidate. 
Sub-section (3) of Section 37 makes it obligatory on the part of 
the Returning Officer to be satisfied as to the genuineness of the 
notice of withdrawal and the identity of the person delivering it. 
Thereafter, he shall cause the notice to be affixed in some 
conspicuous place in his office. [Paras 19, 20) [131-E, H; 132-A-
H BJ 
114 
KAMENG DOLO v. ATUM WELLY 
115 
1.2 In the present case from the evidence of the Returning A 
Officer, it is explicit that withdrawal of the candidature was not 
made by the candidate or by his proposer or his election agent. 
There was no authorisation for the same to the proposer or 
election agent. There has been total non-compliance of Section 
37 of the Act. [Paras 21, 22] [132-C, H; 133-B] 
2.1 To sustain the ground as stipulated under Section 
• lOO(l)(d)(iv), the election petitioner is required not only to plead 
and prove the ground but also to establish that the result of the 
election of the returned candidate concerned has been materially 
affected. [Para 27] [136-C, DJ 
2.2 As s.37 would reflect, the legislature has provided 
number of safeguards before exercising the authority for 
acceptance of withdrawal of a candidate. The language employed 
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in Section 37 of the Act is absolutely plain, unambiguous and 
unequivocal. It only admits of a singular interpretation. It is 
because the intention of the Parliament is that due care and D 
caution has to be taken in letter and spirit so that no confusion is 
created. The issue of alert and careful exercise gains more 
significance when there are two candidates. The emphasis is on 
"two candidates" because if one's withdrawal is allowed in 
complete violation of the statutory provision, the other candidate E 
gets automatically declared elected, for there is no election, no 
contest. (P<Jra 41] (145-B-E] 
2.3 When in transgression of the statutory provision, a 
candidate's candidature is allowed to be withdrawn, it will 
tantamount to sacrilege of democracy. That is why, the mandate 
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of Section 37 of the Act has been so carefully worded. The 
legislature has taken pains to provide safeguards since illegal 
acceptance of withdrawal has the potentiality to destroy the base 
·· of democracy and corrode its primary roots. The sanctity of the 
electoral process imperatively commands that each candidate 
owes and is under an obligation that a fair election is held and G 
freedom in the exercise of the judgment which engulfs .a voter's 
right, a free choice, in selecting the candidate whom he believes 
to be best fitted to represent the constituency, has to be given 
due weightagc, arc never to be eroded. The responsibility of a 
returning officer being statutorily significant, he has to keep H 
116 
SUPREME COURT REPORTS 
[2017) 5 S.C.R. 
A himself ali

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