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"23. Death of a candidate before poll.-- If a candidate set up by recognised political party whose nomination has been found valid under rule 15 and who has not withdrawn his candidature under rule 17 dies and a report of his death is received before the publication of the list of contesting candidates under rule 18 or if a contesting candidate dies and the report of his death is received before the commencement of poll, the returning officer shall, after verifying the fact of the death of the candidate, countermand the poll and report the fact to the Election Commission and all proceedings with the reference to the election shall be commenced a new in all respects as if it was a new election :

C/SCA/5927/2021 CAV JUDGMENT DATED: 08/07/2021

40. As provided in Section 15, the election has to be held on such date as the State Election Commission may appoint in that behalf. The election has to be conducted in a prescribed manner and under the superintendence, directions and control of the State Election Commission. The officers appointed by the Election Commission under Rule 5 as defined by Rule 2(1)(m) would conduct the election. The general duties of the Returning Officers are prescribed by Rule 6, and upon submissions of the total number of votes polled by each candidate, the same shall have to be recorded in the result sheet in Form No.27. At that stage, the death of a candidate securing highest number of votes if reported, the Returning Officer is under an obligation to report the death of the candidate to the State Election Commission as intended in Rule 63. It is pertinent to note that under Rule 63, the Returning Officer can be directed by the State Election Commission not to declare the result of the election without the permission of the Commission. It is also noteworthy that the reporting of death of a candidate securing highest votes has to be submitted by the Returning Officer to the State Election Commission after filling up of the Form No.27 seeking permission to conclude the remaining procedure under Rules 61, 62 and 63 respectively. Thereafter, for the declaration and publication of the result, the Returning Officer has to seek guidance from the State Election Commission, and in the absence of any contrary directions, he may then proceed for the preparation and filing of the Form No.28. It is only thereafter that the State Election Commission shall publish the names of the elected members under sub-section (4) of Section 15, as prescribed by sub-rule (3) of Rule 63 of the Rules. However, if a C/SCA/5927/2021 CAV JUDGMENT DATED: 08/07/2021 person who is declared as elected is dead, then no such declaration as per the Form No.28 can be made, and in such circumstances, the Election Commission would be left with no other choice except not to make any such declaration under Rule

43. What is observed and discussed as above is supported by a decision of the Supreme Court in the case of Jitu Patnaik vs. Sanatan Mohakud, reported in (2012) 4 SCC 194. In paragraph 25 of the report, Justice R.M.Lodha (as His Lordship then was), while examining Section 38 of the Representation of the People Act, 1951, has observed as follows:

C/SCA/5927/2021 CAV JUDGMENT DATED: 08/07/2021 "25. There is no doubt that only living persons can offer themselves or be offered as candidates for membership of Parliament or State Legislatures. However, once nomination has been filed by a candidate and on scrutiny his candidature is found proper and before the expiry of the period of the withdrawal, he has not withdrawn his candidature and his name is included in the list of validly nominated candidates prepared under Section 38 of the 1951 Act and Rule 11 of the 1961 Rules, if death of a contesting candidate as defined in Section 38 takes place, the consequences following the death of such contesting candidate have to be found from electoral law contained in the 1951 Act or the Rules framed thereunder."

60. The learned Attorney General answered the first question as under :

"You first ask what the result or effect will be of the votes that are cast for the deceased candidate. The death or disqualification of a candidate, unfortunately, occurs from time to time and has been addressed by the courts of this country several times throughout history. In a majority of states, the "American" rule is followed in the determination of whether votes cast for a deceased or disqualified candidate are to be counted. The "American" rule holds that