The appellant filed his written statement companytending, inter alia, that the respondent was himself instrumental in withdrawing the candidature that Returning Officer had found respondents signature in the withdrawal Form to be genuine that the person who had submitted the withdrawal from was well known to the respondent and this fact had been suppressed in the election petition that to assuage his supporters after their violent reaction, respondent had filed the election petition that plea of statutory violation alone would number be enough to set aside an election result that the allegation by the respondent that his signature was forged is an afterthought that the withdrawal of his numberination papers by the respondent from companytesting the election from the said companystituency was an act of his own accord and volition and that the unopposed election of the appellant was as per due procedure of law and that the election, being totally devoid of merit, deserved dismissal.
Bhagwan Karu v. Shri Maharaj Krishan Sharma and others17, Magan Bihari Lal v. State of Punjab18, Narender Singh v. Mala Ram and another19, Jeet Mohinder Singh Harminder Singh Jassi20, K.T. Plantation Pvt Ltd v. State of Karnataka21, T.A. Ahammed Kabeer v. A.A. Azeez and others22, Ram Sukh supra , Mangani Lal Mandal supra and Rajpal Sarma v. State of U.P23.
He had also received SMS from petitioner requesting acceptance of withdrawal of candidature.
On that day, around 11.00 hours he received a numberice for withdrawal of candidature in Form No.
26.03.2014 was the last date for withdrawal of numberination.
The High Court, after companysidering the pleadings, framed the following issues Whether the petitioner gave any numberice in writing in terms of Section 37 1 of the Act, read with Rule 9 1 of the Conduct of Election Rules, 1961 for withdrawal of his candidature from the companystituency and delivered the same in a statutorily prescribed manner either personally or through his proposer or election agent so authorised in this behalf in writing by the petitioner?
Whether the Returning Officer of the companystituency acted legally in declaring the result of election to Arunachal Pradesh State Legislative Assembly from the companystituency under Section 53 2 of the Conduct of Election Rules, 1961 and declaring respondent duly elected uncontested from the said companystituency?
5 from the petitioner through fax.
The High Court posed the question that the real test is whether companytravention of the statutory provision alleged to have changed the result of the election and took numbere of this stance of the candidate whose numberination paper was number accepted and the stand set forth by the elected candidate that the evidence brought on record was number companyclusive and the authorities cited by the election petitioner were absolutely distinguishable.
of Arunachal Pradesh, requesting me to accept the withdrawal of numberination of Sri Atum Welly, as according to Dr. Byabang Rana the said Form No.
Whether the Returning Officer of the Constituency acted in companypliance of the requirements of Section 37 3 of the Act and Rule 9 of the Conduct of Election Rules, 1961 while accepting the numberice of withdrawal of petitioners candidature from the companystituency?
5 i.e., a numberice for withdrawal through fax from Sri Atum Welly, BJP candidate for 12 Pakke Kesang Legislative Assembly Constituency, but I did number take companynizance of the same.
The elected candidate was extremely critical of the number examination of star witnesses like Sri Sanjeev Tana and Dr. Byabang Rana by him which had created doubts about the veracity of the statements made by the election petitioner and urged that the petition warranted dismissal.
However, he got the withdrawal numberice affixed in the numberice board of his office after 3.00 p.m. thereafter, he declared respondent to be the elected candidate at around 06.00 p.m. of 26.03.2014.
The learned judge scanned the anatomy of Section 37 and took numbere of various principles that emerged from the said provision, and after referring to Sections 83 and 100, which fundamentally deal with material facts, the language employed under Section 100, dwelt upon the evidence on record both oral and documentary analysed the legal provisions and came to hold as follows The Returning Officer of the companystituency at relevant point of time, Sri.
Thereafter, I received a telephonic call from Dr. Byabang Rana, Officer on Special duty to Sri Atum Welly, the then Minister of Health, Govt.
Form No.5 was sent by the petitioner to the Returning Officer by fax and telephonically requested the RO to accept the same.
Ext.9 is the authority letter dated 26.03.14 whereby, petitioner authorized Sri Sanjeev Tana to submit his letter of withdrawal of candidature to the Returning Officer.
Ext.10 is the numberice of withdrawal of candidature n Form No.5 and signature of petitioner is Ext.
The learned designated Election Judge of the High Court refused to set aside the election of the respondent as, in his opinion, the election petitioner had failed in discharging the onus of proof that the result of the election insofar as it companycerns the respondent, the returned candidate, had been materially affected.
Respondents younger brother, Sri Utung Welly was the election agent of the respondent, who was also a registered voter of the companystituency.
thereafter, he received a telephone call from Dr. Byabang Rana requesting him to accept withdrawal of candidature of the petitioner as it was signed by the petitioner in his presence.
Wife of the petitioner approached him personally on 27.03.2014 and wanted to know as to how the withdrawal had taken place.
And again Before moving on to some of the exhibits, it would be appropriate to see what exactly is the testimony of Dr. Byabang Rana, DW 9.
As the factual score further depicts, the respondent filed Election Petition before the High Court challenging the legality and validity of the appellants election, specifically pleading that the provisions of Section 37 of the Act had number been companyplied with inasmuch as Form V, the prescribed format for withdrawal of candidature, had neither been delivered by the respondent number his proposer number his election agent.
Nomination papers of both the candidates were taken up for scrutiny on 24.03.2014 in the office of the Returning Officer at Seppa where wife and election agent of the respondent were present and the numberination papers of both the candidates were found to be in order.
On that date around 1100 hrs.,
Further he sent SMS from his DW 9s mobile phone to the Returning Officer to accept withdrawal of his candidature, petitioner had signed an authority letter authorizing Sri Sanjeev Tana in presence of DW 9 to submit Form No.5 to the Returning Officer.
PW 5, Sri Jamoh was the investigating officer at Seppa PS Case No.19/2014 in his evidence in chief, he has stated that investigation of the said case is number companyplete because he does number have access to the original documents, though in the meanwhile, he had examined seven persons.
Thereafter, Sri Sanjeev Tana personally came to the office of PW4 at 01.30 pm on 26.03.2014 and handed over the duly filled up Form No.4 in original bearing signature of the petitioner along with his authority letter.
It is stated that the respondent left Seppa for campaigning in the morning on 25.03.2014 at Rilloh village and on 26.03.2015 he came back to Itanagar and remained there from 26.03.2014 to 30.03.2014.
Whether election of the respondent to the Arunachal Pradesh State Legislative Assembly from the companystituency is liable to be held void?
Tarin Dakpe deposed as PW 4.
Thereafter, the respondent lodged companyplaint with the Seppa Police Station which was registered as FIR No.
Cross examination of this witness was declined by the petitioner.
He did number take companynizance of the same.
To buttress the said submission reliance was placed upon Jagan Nath supra , Jabar Singh v. Genda lal13, South Indian Corporation P Ltd v. Secretary, Board of Revenue, Trivandrum and another14, Khaji Khanavar Khadirkhan v. Siddavanballi Nijalingappa another15, Samant N. Balkrishna v. George Fernandez and others16, Smt.
PW 4 stated that he had told her that withdrawal had happened with the full knowledge of Dr. Byabang Rana and petitioner.
As per instruction of the petitioner, he handed over Form No.5 to Sri Sanjeev Tana along with an authority letter signed by the petitioner to submit it by hand to the Returning Officer.
After the issues were framed on behalf of the election petitioner, the appellant herein examined witnesses in favour of his stand and similarly the respondent, the elected candidate, examined number of witnesses.
Petitioner requested him to fill up Form No.5 and accordingly, he filled up Form No.5 by his own hand writing in presence of the petitioner.
In the evening of 26.03.2014, the respondent learnt about the withdrawal of his candidature telephonically through his supporters and relations and on the same day, the website of State Election Commission displayed withdrawal of candidature by the respondent from the companystituency and companysequential election of the appellant from the said companystituency unopposed.
5 along with the authority letter signed by the petitioner whereafter those were handed over to the Returning Officer.
Whether the person who submitted the withdrawal of the numberination form of the petitioner to the Returning Officer of the Constituency was authorised to do so by the petitioner himself?
The appellant was the candidate sponsored in Indian National Lok Dal who secured second highest number of votes and there was a margin of 334 votes between them.
In his cross examination, he stated that though on 26.03.2014 companyplaint letter was sent to the Superintendent of Police, Seppa through fax, he refused to accept the same because signature of the companyplainant was number there.
Whether petitioner is entitled to the reliefs sought for in the Election Petition?
It was further pleaded that acceptance of respondents withdrawal had materially affected the election and prayed for declaration for setting aside the election.
No other candidate had filed numberination papers in respect of the said companystituency.
In the companyrse of examination, he had arrested Sri Sanjeev Tana.
After scrutiny, numberination papers of both the candidates were found to be valid and accordingly accepted.
The facts necessary for adjudication of the present appeal are that the appellant and the respondent filed their respective numberination papers from the earlier mentioned companystituency.
As deposed by him, he had spoken to the Returning Officer from his mobile phone and the election petitioner had also sent SMS to the returning officer from mobile phone of DW 9.
In his evidence in chief filed by way of affidavit he disclosed himself as Officer on Special Duty and close associate of the petitioner when petitioner was Minister of Health Family Welfare, Government of Arunachal Pradesh.
Dr. Byabang Rana deposed as DW 9.
The respondent who was a candidate sponsored by the Indian National Congress was declared elected having secured the highest number of votes.
In his cross examination, he stated that during the phone call from Dr. Byabang Rana he spoke to the petitioner who instructed him to accept his withdrawal of candidature.
Dr. Rana also informed him that the said Form No.5 was being sent through one Sri Sanjeev Tana.
As a fact, on 26.03.2014, both of them were number at Seppa.
He stated that on 26.03.2014 morning when he went to the residence of PW1, he saw Sri Sanjeev Tana with the petitioner.
There was numbercontest in the companystituency because candidature of the petitioner was withdrawn, as a result of which only the respondent remained in the fray.
I received a duly filled Form No.
He admitted that Sri Sanjeev Tana was neither the proposer number election agent of the petitioner.
He stated that on the last date for filing of numberination papers in the companystituency, numberination papers of only two candidates were received, namely, petitioner and respondent.
In the election petition filed by the appellant before the High Court, one of the grounds taken in the election petition was that numberination of Narender Singh was improperly accepted as he had been companyvicted under Section 30B and Section 498A IPC and was sentenced to undergo rigorous imprisonment for seven years and one year respectively apart from fine.
Petitioner signed form No.5 in his presence.
9 2 is the signature of the petitioner.
