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CASE NO.: Appeal (civil)  4262 of 2003

PETITIONER: Ram Phal Kundu                           

RESPONDENT: Kamal Sharma                                     

DATE OF JUDGMENT: 23/01/2004

BENCH: CJI, S.B. Sinha & G.P. Mathur.

JUDGMENT: JUDGMENT

G.P. MATHUR,J.

1.      This appeal under Section 116A of the 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 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 Haryana  Vidhan Sabha including that from 50-Safidon Assembly Constituency  (Distt. 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 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 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.

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 candidate of the said party.   The Central Election Committee of

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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 candidates to be set up by the party 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.m. on 3.2.2000 before the Returning Officer.   During the  course of scrutiny proceedings on 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 Sharma was the only  person nominated as a candidate of the Congress Party 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 officially  approved candidate of the Congress Party.   The scrutiny proceedings were  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 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 candidate of the party.   However,  the Returning Officer passed an order at 4.30 p.m. on 8.2.2000 dismissing  the objection raised by the election petitioner and allotted the Symbol of the  Congress Party to Bachan Singh.   The result of the election was declared on  25.2.2000 and out of 85,742 valid 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 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 Forms A and B that he had been  nominated by the Congress Party as a candidate for 50-Safidon Assembly  Constituency.   In Form B submitted by Bachan Singh the nomination of the  election petitioner Kamal Sharma was rescinded and it was specifically  mentioned that the Congress Party had changed its candidate 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  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

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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 Form B was received by  the Returning 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 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  matter.   No appeal or revision lies to the Election 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 Party at the  State level and the national level, including Shri Motilal Vora 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  Kamal Sharma impleaded the returned candidate Ram Phal Kundu as the  sole 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 as a party to the election petition.   Strictly speaking it is not a case  of  rejection 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  treated as that of an independent candidate.  But as it was not subscribed by  10 proposers being electors of the Constituency, it had to be rejected in view  of First Proviso to Sub-section(1) 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 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 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

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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 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 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 :

        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.

13A.     Substitution of a candidate by a political party - For  the removal 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 From B, clearly  indicating therein that the earlier notice in From 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 :

       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 Form B in respect of the candidate whose  nomination paper was first delivered to him, and the remaining  candidate or candidates in respect of whom also notice 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 13A of the Symbols Order, a candidate shall  be deemed to be set up by a political party if the following conditions are  fulfilled :

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(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  delivered to the Returning Officer not later than 3.00 p.m. on the last  date for making nomination. (3)     The notice in Form 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.    (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 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  Symbols Order has made a specific provision that Forms A and B have to be  signed in ink only and signature by means of rubber stamp, etc. shall not be  accepted.   In terms of the language used in paras 13 and 13A of the  Symbols Order there is no requirement of putting the seal of the party in  Forms 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  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 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 : "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 PW5 Shri Bhupinder Singh Hooda has admitted  that Form B in favour of Bachan Singh contains his signature.   He stated as  under : "......... It is correct that document Ex.PW4/A which is Form  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........"

        Towards the end of his cross-examination he stated as under :

"On Form B issued to Shri Bachan Singh Arya I only own

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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  contained a categorical statement to the effect that the notice given in Form  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 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.  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 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 Bhupinder Singh  Hooda has deposed that the name of Bachan Singh was under 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  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  informed him that Kamal Sharma is the official candidate and thereafter he  sent an 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 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 subsequent dates.   

10.     The question that arises is whether this evidence, which is all  subsequent to the last date of filing of the nomination paper, can be looked  into in order to ascertain as to who had been set up as a candidate by the  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 powers  enabling it in this behalf by the Election Commission of India.   In Sadiq Ali   v. Election Commission of India & 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  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.  

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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 to indicate in such notices in  Form B that the earlier notice or notices have been rescinded.   Thus, paras  13 and 13A are exhaustive and lay down the complete procedure for  determining whether a candidate has been set up by a political party.   The  Rule 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 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 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.  It 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 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 rule  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 Magistrate  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  Commissioner of Income Tax v. Anjum M.H. Ghaswala 2002(1) 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 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 that  every part of the Statute should have effect.   (See J.K. Cotton Spinning &  Weaving Mills Co. v. State of U.P. AIR 1961 SC 1170, Moh. Ali Khan v.  The Commissioner of Wealth Tax AIR 1997 SC 1165 and C.I.T. v. Kanpur

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Coal Syndicate AIR 1965 SC 325).    

14.     If instead of deciding the matter in accordance with paras 13 and 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 misuse.   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  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 would have been rejected may file an election petition,  lead 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  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 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 of a 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 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  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 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 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 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 that 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 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 law was

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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 not prescribe that Form B should also contain the seal of the party.   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 a note has been appended at the end of the Form which  reads as under :

"N.B.     1.      This must be delivered to the Returning Officer not later than 3 p.m.  on the last date for making nominations.

2.      Form must be signed in ink by the office bearer(s) mentioned above.   No fascimile signature or signature by means of rubber stamp, etc., of  any office bearer shall be accepted.

3.      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."

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  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 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 referred to the amendment in Handbook for Returning  Officers by which para 10.3(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 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 Returning

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Officer concerned and notice in Form ’B’ is to be submitted to  the Returning Officer)."

       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.

19.     We are unable to accept the submission made.   The requirement of  paras 13 and 13A of the Symbols Order is that Form B should be submitted  to the Returning Officer.   There is no requirement of the submission of the  said Form to the Chief Electoral Officer.   The Handbook for Returning  Officers contains instructions which have been issued by the Election  Commission for 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  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 10.3(i)  clearly mentions that notice in Form B is to be submitted to the Returning  Officer alone, which is also the mandate of para 13(b) of the Symbols Order.     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  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 placed on the  testimony of PW4 Punnu Ram who claims to be working as clerk in the  office of Haryana Pradesh Congress Committee since 1970 and PW5 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 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 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 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 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

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name of Bachan Singh Arya has been shown, is a complete list of all the 90  Constituencies wherein the names of the candidates for 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 name of  Gyan Chand.   Both PW4 Punnu Ram and PW5 Shri Bhupinder Singh  Hooda have admitted in their statement that the candidature of Gyan Chand  was changed and finally A.C. Chaudhary had contested the election as an  official candidate for the Congress Party for 51-Faridabad Constituency.     PW5 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 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 go to any  extent for supporting the list filed by him.

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 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 Returning 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 and that Kamal Sharma 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 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.PW1/1 the Returning Officer had really no option but to accept the  statement of Shri Hooda and treat the petitioner as an official candidate of  the Congress Party".  After noticing the statement 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 to decide the matter keeping in  view the various facts and 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

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him, whereby 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, 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,  particularly the pronouncement in the case of Rakesh Kumar  Vs. 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 relation to said  candidates, as ab initio 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. Sunil  Kumar 1999 (2) SCC 489. It is  important to note that in this case the last  date of filing nominations was 20.1.1997 and the date of polling was  6.2.1997 and, therefore, the case related to a period prior to the amendment  of Symbols Order on 20.5.1999 by which para 13A 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 set up more than one candidate, therefore, none  could be treated as a candidate of said political party and rejected the  nomination papers of both Sunil 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 time to produce an official confirmation  of his candidature but the application was rejected and no time was given,  though no other candidate (including Veer Abhimanyu) had raised any  objection.    It was in these circumstances that 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 of a  candidate set up by 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 next  day i.e. on 7.2.2000 by which a direction was issued to the Returning Officer

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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,  Mohinder  Singh Gill v. Chief Election Commission AIR 1978 SC 851,  Election  Commission v. 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 and the respondent Kamal Sharma can get no advantage  from the same.   The inference drawn and the findings recorded by the High  Court on the basis of the order of the Election Commission, therefore,  cannot 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 had lost.   The statements of PW4 and PW5 show  that it is the Central Election 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 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 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. There can  be differences amongst the members regarding the choice of a candidate. In  this background, Kamal Sharma 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 evidence.

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

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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 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 Eelection Petition so that the election of  the appellant may be set aside.   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  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 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 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. Dattaji Raghobaji Meghe 1995(5)  SCC 347, this Court in Jeet Mohinder Singh v. Harminder Singh Jassi  1999  (9) SCC 381 stated as under : "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 the 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 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."

       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 earlier, Kamal Sharma has failed to do so.

28.     The appeal is, therefore, allowed and the judgment and order dated  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.