High Court of Delhi was dealing with petition preferred on behalf of respondent under Order VII Rule 11 of the CPC read with Section 86 of the Representation of the People Act, 1951.
Brief Facts:
The application is predicated on the ground that the election petition does not disclose a cause of action, and hence, ought to be rejected. According to the applicant/respondent, the election petition preferred under Section 80 read with Section 100(1)(b) & (d) as also Section 101 of the 1951 Act, which seeks direction from the Court, to the effect, that the result of the election qua Assembly Constituency held on 08.02.2020 be declared null and void, is founded on the assertions which do not disclose any cause of action. The respondent has averred that the petitioner has made two principal allegations against him. First, that the respondent has disclosed in his affidavit filed in the prescribed form i.e., Form-26, that his educational qualification is Matric (10th) passed which according to the petitioner is false. Second, that there is no disclosure concerning the pendency of the FIR registered. It is also asserted by respondent that the alleged false declaration in Form-26 i.e., the affidavit filed with the nomination papers does not amount to corrupt practice within the meaning of Section 123(4) of the 1951 Act. The respondent says that the election petition should be rejected at this stage itself given the fact it has not been framed in accordance with Form-25, prescribed in Rule 94A of the Conduct of Elections Rules, 1961. Furthermore, the respondent avers that the affidavit filed along with the election petition does not conform to the requirements of the proviso to sub-section (1) of Section 83 of the 1951 Act.
Petitioner’s Contention:
Learned Counsel for the petitioner submitted that the averment made by the applicant that he had passed the Class-X examination via NIOS in 2003 was false. As per the rules of NIOS, one student has at disposal nine attempts, albeit over in five years, to sit for and clear the examination. Once admission is taken, no learner is allowed to take re-admission for the next five years. It was contended that since full particulars of corrupt practices have not been set forth in the election petition, it is liable to be dismissed due to non-compliance of the provisions of Section 83(1)(b) of the 1951 Act, is untenable.
It was further submitted that as per the result available for enrolment, the respondent did not appear for the Class-X examination between 1990 and 2019. This assertion was sought to be substantiated by relying upon May 2002 Academic Examination Result declared by NIOS, vis-a-vis the applicant. It was contended by the petitioner that the document filed by the applicant, which is ostensibly the Academic Examination Result declared by NIOS for April 2003, and concerns the respondent, is forged and fabricated. This is evident if one were to compare the date of birth and the father’s name given in the said document with the document placed on record by the petitioner.
Respondent’s Contention:
Learned Counsel for the respondent submitted that a bare perusal of the documents placed on record by the petitioner, in support of the assertions made that applicant did not pass his Class-X examination in April 2003, would show that the pleadings and the material placed on record are not aligned. He drawn attention to NIOS Academic Examination Result for May 2002. It was contended that the document reveals that respondent was absent and not that he had failed. As against this, the respondent had placed on record Form-26, which indicated that he had passed his Class-X examination via NIOS in 2003.
It was submitted that the respondent in Form – 26 has indicated that there was no criminal case pending against him. A criminal case is said to be pending against a person only if cognizance is taken of an offence by a Magistrate under Section 190 of CPC or once charges are framed and not before that. It was asserted that a perusal of the averments made in the election petition, would show that there is no clarity as to assertions which are true to the knowledge of the affiant i.e., the petitioner and those that are based on information, received and believed to be true. Lastly it was submitted that insofar as the alleged false declaration of educational qualification is concerned, in law, it does not constitute a corrupt practice.
HC’s Observations:
The question before the Court was whether the petition should be rejected at this stage without the matter going to trial. Court found that one of the principal reliefs sought in the petition is, to the effect, that this Court should declare the result of the applicant qua the Karol Bagh Constituency as null and void.
The question which arose before the Court was whether there was an obligation on the part of the respondent to disclose information, inter alia, about his educational qualifications and the fact concerning his involvement in a criminal case.
HC relied upon the case of Union of India vs. Association of Democratic Reforms where SC held that “the voter has a fundamental right to know the antecedents of the candidate, who stands for elections.”
Court found that the 1951 Act was amended which led to the insertion of Section 33A and 33B of the 1951 Act. The sum total of this exercise was that the amendments made to the 1951 Act did not carry through the directions issued by the Supreme Court in the Association of Democratic Reforms case, which led to the second round of litigation. In the matter of People's Union for Civil Liberties vs. Union of India & Anr., the Supreme Court, via a majority decision, reaffirmed the disclosure requirements stipulated in its earlier judgment rendered in Association of Democratic Reforms case.
Court stated that the candidate who files his/her nomination is required to disclose his past conviction/acquittal/discharge, if any, and punishment awarded by way of imprisonment and/or fine. Likewise, if prior to six months of filing nomination, if a candidate is accused of an offence punishable with imprisonment of two years or more, in which charge is framed or cognizance is taken by a Court of law, the same needs to be disclosed.
Court stated that that merely because the May 2002 Academic Examination Result for Class X, concerning the respondent does not align with the assertion made in the petition that the application did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. Court solved the last issue which is, that the aspect concerning educational qualification does not fall within the ambit of Section 123(4) of the 1951 Act, which provides as to what practices are deemed as corrupt practices for the purposes of 1951 Act. A coordinate Bench of this Court in the matter of Nand Kishore Garg, on this aspect, has ruled that nondisclosure and/ or false declaration made, vis-a-vis educational qualifications, would constitute a corrupt practice.
HC Held:
After evaluating submissions made by both the parties the Court held that “The expression "in relation to candidature" should, in my view, include information concerning the educational qualification of a candidate, since the Supreme Court has unambiguously held that voters have the fundamental right to know the antecedents of the candidate. A false declaration made, qua educational qualification can be brought within the four corners of Section 123(4) of the 1951 Act. For the reasons given hereinabove, I am not inclined to reject the election petition at this stage.”
Bench: Hon'ble Mr. Justice Rajiv Shakdher
Case Title: Yogender Chandolia v. Vishesh Ravi & Ors.
Case Details: EL.PET. 10/2020
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