Bombay High Court
Satish Mahadeorao Uke vs Devendra Gangadhar Fadnavis And ... on 19 August, 2015
Bench: Ravi K. Deshpande
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Civil Application No.993 of 2015
In
Election Petition No.1 of 2014
Satish Mahadeorao Uke,
Aged 35 years,
Occupation - Advocate,
R/o Parvati Nagar,
Nagpur-440 027. ... Petitioner
Versus
1. Devendra Gangadhar Fadnavis,
Aged 44 years,
Occupation - Member of Legislative
Assembly,
Assembly Conhstituency No.52,
South-West Nagpur Constituency
(Presently - Chief Minister of Maharashtra
State),
R/o 276, Dharampeth,
Trikoni Park,
Nagpur-10.
And also
"Varsha", Chief Minister's Bungalow,
Malbar Hills, Mumbai.
2. Deleted.
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3. Deleted.
4. Deleted.
5. Deleted ... Respondents
Petitioner in person.
Shri Sunil Manohar, Senior Advocate, with Shri Deven Chauhan,
Advocate for Respondent No.1.
CORAM : R.K. DESHPANDE, J.
DATE OF RESERVING THE ORDER : 10-7-2015
DATE OF PRONOUNCING THE ORDER : 19- 8-2015
O R D E R :
1. This election petition is filed challenging the election of
the respondent No.1 on the grounds under Section 100(1)(d)(i)
and (iv) of the Representation of the People Act, 1951 (for short,
"the said Act") for improper acceptance of his nomination paper
by the Returning Officer. The substance of the averments made
in the election petition is that the respondent No.1 has failed to
disclose in his affidavit in Form No.26 submitted alongwith his
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nomination paper delivered under Section 33(1) of the said Act,
the information, as required under Section 33-A(1)(i) and (2) of
the said Act, in respect of certain offences in which he is accused
in a case pending before the Court of competent jurisdiction. The
nomination of the respondent No.1 was required to be rejected
under Section 36(2)(b) of the said Act and the result of the
election of the respondent No.1 has materially affected by such
improper acceptance of his nomination, as contemplated under
Section 100(1)(d)(i) and (iv) of the said Act.
2. The respondent No.1 has filed his written statement and
opposed the claim made by the petitioner. He has also filed an
application under Order VII, Rule 11(a) of the Civil Procedure
Code for rejection of the petition on the objection that "the
present election petition does not contain statement of material
facts as to how the result of the election is materially affected, in
so far as it concerns the returned candidate. In the absence of
these materials facts, the petition does not disclose any cause of
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action". It is also the objection raised that the election petition
and the documents annexed are not verified in the manner
prescribed by the Code of Civil Procedure.
3. Before proceeding to deal with the controversy in respect
of pleading of material facts, the relevant provisions of the
Representation of the People Act, 1951 in respect of the
nomination of the candidates need to be seen, which are
incorporated in Part V of conduct of elections, and
Chapter I regarding nomination of candidates therein. Section 30
of the said Act provides for fixing of dates for filing of
nomination paper for election of a Member from a Constituency.
Section 32 provides that a person may be nominated as a
candidate for election to fill a seat, if he is qualified to be chosen
to fill that seat under the provisions of the Constitution and the
said Act.
4. Section 33 relates to the presentation of nomination
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paper and requirements for a valid nomination. The provision of
Section 33(1) being relevant, is reproduced below :
"33. Presentation of nomination paper and
requirements for a valid nomination.--(1) On or before
the date appointed under clause (a) of section 30 each
candidate shall, either in person or by his proposer,
between the hours of eleven O'clock in the forenoon and
three O'clock in the afternoon deliver to the returning
officer at the place specified in this behalf in the notice
issued under section 31 a nomination paper completed
in the prescribed form and signed by the candidate and
by an elector of the constituency as proposer:
... ... ..."
In terms of the aforesaid provision, the nomination paper
completed in the prescribed form and signed by the candidate and
by an elector of the constituency as proposer, is to be delivered to
the Returning Officer. Rule 4 of the Conduct of Elections Rules,
1961 prescribes that every nomination paper presented under
Section 33(1) shall be completed in such one of the
Forms 2A to 2E, as the case may be. Since the present petition is
concerned with the election to the Legislative Assembly of
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Maharashtra, it is governed by Form No.2B.
5. This election petition essentially concerns with the
provision of Section 33-A of the said Act, which was introduced
by Act No.72 of 2002 with effect from 24-8-2002. The provisions
of Section 33-A(1)(i) of the said Act being relevant, are
reproduced below :
"33-A. Right to information.--(1) A candidate shall,
apart from any information which he is required to
furnish, under this act or the rules made thereunder, in
his nomination paper delivered under sub-section (1) of
Section 33, also furnish the information as to whether--
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending case in
which a charge has been framed by the Court of
competent jurisdiction.
(ii) ... ......
(2) The candidate or his proposer, as the case may
be, shall, at the time of delivering to the returning
officer the nomination paper under sub-section (1) of
section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form verifying the information
specified in sub-section (1)."
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In terms of the aforesaid provision, a candidate at an election is
required to furnish in his nomination paper delivered under
sub-section (1) of Section 33, the information as to whether he is
accused of any offence punishable with imprisonment for two
years or more in a pending case in which a charge has been
framed by the Court of competent jurisdiction. Such information
is required to be furnished in the affidavit sworn by the candidate
in a prescribed form verifying the information specified in
sub-section (1). Rule 4-A of the Conduct of Election Rules, 1961
prescribes that the affidavit shall be in Form No.26.
6. In terms of 36 of the said Act, the nomination paper is to
be scrutinized by the Returning Officer.
Section 36(2) provides that the Returning Officer, on the
objections filed to any nomination or on his own motion, may
hold a summary enquiry in connection thereof.
Sub-sections (2), (3) and (4) of Section 36 being relevant, are
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reproduced below :
"36. Scrutiny of nominations.-- ...
(2) The returning officer shall then examine the
nomination papers and shall decide all objections which
may be made to any nomination, and may, either on
such objection or on his own motion, after such
summary inquiry, if any, as he thinks necessary, reject
any nomination on any of the following grounds:--
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not qualified
or is disqualified for being chosen to fill the seat
under any of the following provisions that may be
applicable, namely:--
Articles 84, 102, 173 and 191,
Part II of this Act and sections 4 and 14 of
the Government of Union Territories Act,
1963 (20 of 1963); or
(b) that there has been a failure to comply with
any of the provisions of section 33 or section 34;
or
(c) that the signature of the candidate or the
proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c) of
sub-section (2) shall be deemed to authorise the
rejection of the nomination of any candidate on the
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ground of any irregularity in respect of a nomination
paper, if the candidate has been duly nominated by
means of another nomination paper in respect of which
no irregularity has been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect which is
not of a substantial character."
A nomination can be rejected on several grounds mentioned in
Section 36(2)(a) to (c) and clause (b), which is relevant, is that
there has been a failure to comply with any of the provisions of
Section 33 or Section 34 of the said Act. Sub-section (3) is in the
nature of exception and creates a bar to reject the nomination
paper on the ground of any irregularity. Sub-Section (4) provides
that the Returning Officer shall not reject any nomination paper
on the ground of any defect, which is not of a substantial
character.
7. The present election petition is filed challenging the
election of the respondent No.1 on the grounds mentioned in
Section 100(1)(d)(i) and (iv) of the said Act. Section 100(1) of
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the said Act being relevant is reproduced below :
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if
the High Court is of opinion--
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified,
to be chosen to fill the seat under the
Constitution or this Act or the Government of
Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by
a returned candidate or his election agent or by
any other person with the consent of a returned
candidate or his election agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected--
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent, or
(iii) by the improper reception, refusal or
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rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this
Act,
the High Court shall declare the election of the
returned candidate to be void."
In para 5 of the petition, it is alleged that the respondent
No.1 submitted his nomination paper for contesting the
Legislative Assembly Election, 2014 from the 52, South-West
Nagpur State Legislative Assembly Constituency, Nagpur, and the
nomination paper dated 26-9-2014 submitted by the respondent
No.1 is annexed to the petition. In para 6, it is stated that along
with the nomination paper (Annexure III), the respondent No.1
submitted affidavit dated 26-9-2014 in Form No.26 mentioned
criminal cases pending against him and the copy of the affidavit is
annexed as Annexure IV. The relevant contents of affidavit in
Form No.26, filled in and said to have been delivered by the
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respondent No.1 are reproduced below :
FORM 26
Affidavit to be filed by the candidate along with nomination
paper before the returning officer for election to House of
People (Name of House) from Constituency
PART-A
I, Devendra Fadnavis son of Gangadhar Fadnavis aged about 44
years, resident of 276, Dharampeth, Trikoni Park, Nagpur-10 a
candidate at the above, election, do hereby solemnly affirm and
state on oath as under:-
(1) I am a candidate set up by Bhartiya Janta Paty
(2) My name is enrolled in 56-West Nagpur Constituency
Maharashtra at Serial No.269 in Part No.229
(3) My contact telephone number is - 0712-2533446
My email ID is - [email protected]
and my social media accounts are -
1) Facebook - www.facebook.com/devendra.fadnavis
2) Twitter - www.twitter.com/Dev_Fadnavis
3) Website - www.devendrafadnavis.in
(4) ...
(5) I am not accused of any offence(s) punishable with
imprisonment for two years or more in pending case(s) in
which a charge(s) has been framed by the court(s) of
competent jurisdiction.
If the deponent is accused of any such offence(s) he shall furnish
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the following information:-
(i) The following case(s) is/are pending against me in which
charges have been framed by the court for an offence punishable
with imprisonment for two years or more:-
(a) Case/First Information Report No. FIR No.252/91 P.S.
together with complete details of Sitabuldi Nagpur
concerned police station/ District/State
(b) Section (s) of the concerned Act(s) and 147, 148, 324 I.P.C.
short description of the offence(s) for
which charged
(c) Name of Court, Case No. and date of J.M.F.C. No.2 Nagpur,
order taking cognizance cognizance taken on
16/07/1991
(d) Court(s) which framed the charge(s) J.M.F.C.No.2 Nagpur
(e) Date(s) on which the charge(s) was/were 01/04/06
framed
(f) Whether all or any of the proceeding(s) No
have been stayed by any Court(s) of
competent jurisdiction
(ii) The following case(s) is/are pending against me in which
cognizance has been taken by the court [other than the cases
mentioned in item (i) above] :-
(a) Name of the Court, Case No. P.S. Sitabuldi, J.M.F.C. No.2,
and date of order taking Case No.11390/09, Dt.10/08/2009
cognizance Case No.10009/09 Dt.16/07/2009
Case No.164/98, Dt.13/02/1998
Case No.1303/96, Dt.05/10/1996
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Case No.573/93, Dt.20/05/1993
Case No.219/98, Dt.26/02/1998
Case No.962/09, Dt.21/01/2009
Case No.18282/06 Dt.21/09/2006
(b) The details of cases where the Section 135 B.P. At 143, 147,148,
court has taken cognizance, 323 IPC, 143, 427, IPC,
section (s) of the Act(s) and all cases are registered for
description of the offence(s) for agitations.
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Sadar, J.M.F.C. No.6,
and date of order taking Case No.28/04, Dt.13/02/2004
cognizance Case No.13871/08 Dt.22/09/2008
Case No.14170/09, Dt.24/09/2009
(b) The details of cases where the Section/143, 147,148,323, 427, IPC,
court has taken cognizance, 135, BP.
section (s) of the Act(s) and All cases are registered for
description of the offence(s) for agitations
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Dhantoli, J.M.F.C.No.2,
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and date of order taking Case No.5652/09, Dt.25/04/2009
cognizance Case No.945/2000 Dt.15/03/2000
(b) The details of cases where the Section/188, 171 (g 34), IPC, 135,
court has taken cognizance, B.P.
section (s) of the Act(s) and all cases are registered for
description of the offence(s) for agitations.
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Ganeshpeth, J.M.F.C.No.1,
and date of order taking Case No.14315/09, Dt.29/09/2009
cognizance Case No.4240/10 Dt.05/05/2010
(b) The details of cases where the Section/3,4, 135, B.P.
court has taken cognizance, all cases are registered for
section (s) of the Act(s) and agitations.
description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Ambazari, C.J.M.
and date of order taking Case No.331/05, Dt.27/04/2005
cognizance Case No.333/05 Dt.27/06/2005
(b) The details of cases where the Section/188 IPC,
court has taken cognizance, all cases are registered for
section (s) of the Act(s) and agitations.
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description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Koradi, J.M.F.C.No.6,
and date of order taking Case No.2815/09, Dt.04/03/2009
cognizance
(b) The details of cases where the Section/188,IPC,
court has taken cognizance, all cases are registered for
section (s) of the Act(s) and agitations.
description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Kotwali, J.M.F.C.No.8,
and date of order taking Case No.427/99, Dt.13/08/2009
cognizance
(b) The details of cases where the Section/134, 135, B.P. Act
court has taken cognizance, all cases are registered for
section (s) of the Act(s) and agitations.
description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
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any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Wadi, J.M.F.C.No.8,
and date of order taking Case No.305/99, Dt.30/09/1999
cognizance Case No.307/99, Dt.08/10/1999
(b) The details of cases where the Section/188, 134, 135, IPC,
court has taken cognizance, all cases are registered for
section (s) of the Act(s) and agitations.
description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/
Applications for revision (if
N.A.
any) filed against the above
order(s)
(6) I have not been convicted of an offence(s) (other than any
offence(s) referred to in sub-section (1) or sub-section (2) or
covered in sub-section (3), of Section 8 of the Representation of
the People Act, 1951 (43 of 1951) and sentenced to imprisonment
for one year or more.
If the deponent is convicted and punishable as aforesaid, he
shall furnish the following information:
In the following cases, I have convicted and sentenced to
imprisonment by a court of law:
(a) The details of cases where the N.A.
court has taken cognizance, section
(s) of the Act(s) and description of
the offence(s) for which convicted
(b) Name of the Court(s), Case No. and N.A.
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date(s) of order(s)
(c) Punishment imposed N.A.
(d) Whether any appeal was/has been N.A.
filed against the conviction order, if
so, details and the present status of
the appeal
9. In para 7, it is alleged that the petitioner searched the
information regarding the pending criminal matters against the
respondent No.1 and verified it from the official website of
District Court, Nagpur. While searching the information, the
petitioner came to know about the two criminal matters, which are
not mentioned by the respondent No.1 in his affidavit in Form
No.26 submitted along with his nomination paper. It is stated in
para 7 that the respondent No.1 has concealed the information
about filing of criminal cases as under :
"i) Regular Criminal Case No.343/2003 - Madanlal
Parate vs. Shri Hastak & others pending before the 21 st
Jt. Civil Judge, Junior Division and Judicial Magistrate
First Class, Nagpur (Corporation Court No.2); and
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ii) Summary Criminal Case No.231/1996 -
Madanlal Parate vs. Devendra Fadnavis pending before
the 15th Civil Judge, Junior Division and Judicial
Magistrate First Class, Nagpur (JMFC Court No.6)."
The petitioner has annexed the copies of status of the aforesaid
cases claims to have obtained from the District Court's website as
Annexures V and VI, involving the respondent No.1.
10. In para 9 of the petition, the petitioner states that in
Regular Criminal Case No.343 of 2003 (earlier Private Criminal
Complaint No.125 of 1998), the respondent No.1 is accused No.4.
This case is filed and pending under Sections 109, 217, 218, 220,
420, 425, 466, 467, 468, 469, 471, 474 and 506-B read with
Section 34 of the Indian Penal Code before the 21st Joint Civil
Judge, Junior Division and Judicial Magistrate First Class,
Nagpur, and is fixed for 24-12-2014. It is further alleged that the
respondent No.1 has signed the personal release bond of
Rs.3,000/- on 18-9-2010, i.e. Exhibit 28, before the Judicial
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Magistrate First Class, Court No.2, Nagpur. The petitioner has
annexed the copy of the complaint as Annexure VII.
11. It is further alleged by the petitioner that another case
pending against the respondent No.1 is Summary Criminal Case
No.231 of 1991 (Madanlal Parate v. Devendra Fadnavis), in
which the respondent No.1 is the sole accused. It is alleged that
this case is filed and pending under Section 500 of the Indian
Penal Code before the 15th Civil Judge, Junior Division and
Judicial Magistrate First Class, Nagpur, Court No.6, and is fixed
for 17-11-2014. The petitioner has annexed the copies of
complaint and bail bond as Annexures VIII and IX.
12. It is alleged by the petitioner in para 10 of the petition
that the respondent No.1 has suppressed the aforesaid two cases
deliberately and has intentionally disclosed only selected cases,
which, according to him, may have no obstacles in acceptance of
his nomination paper. It is further alleged that the two criminal
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cases stated in the petition "discloses that the Respondent No.1 is
facing accusation from the aggrieved party who is also an
Advocate of which cognizance has been taken by the concerned
Court". It is further alleged that the non-disclosure has materially
affected the election of the respondent No.1 as a successful
candidate and, therefore, the petition is being presented under
Section 100(1)(d)(i) and (iv) of the said Act.
13. By way of amendment introduced in para 27-A in the
election petition, which was allowed by consent of the parties on
17-4-2015, it is alleged that the respondent No.1 also concealed
the materials facts in his affidavit dated 26-9-2014 filed along
with his nomination paper. The concealment is made in
column (5)(i) about the Sections under which the chargesheet has
been filed by the Police Station Officer, Sitabuldi, in Crime
No.252 of 1991 under various Sections 149, 294, 448, 324 and
336 along with Sections 147, 148 and 325 of the Indian Penal
Code (Sections 147, 148 and 324 of the Indian Penal Code were
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only disclosed by the respondent No.1). It is further alleged that
the concerned Judicial Magistrate First Class has accordingly
framed the charges against the respondent No.1 even under the
other Sections of the Indian Penal Code, which are not mentioned
by the respondent No.1 in column 5(i).
14. This petition seeks a declaration essentially in terms of
prayer clause (4), which is reproduced below :
"4] declare that the Respondent no.1's nomination
had been improperly accepted by the Respondent no.5
for the Maharashtra Legislative Assembly Election, 2014
for the 52, South-West Nagpur Constituency, Nagpur
and the election of the Respondent no.1 i.e. returned
candidate is void due to non-compliance of the
provisions of Constitution of India, The Representation
of People Act as well as the Rules and Orders framed
thereunder and the other laws."
It is not necessary to reproduce the other prayer clauses made in
the petition.
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15. Perusal of the affidavit in Form No.26, the contents of
which are reproduced in para 8 above, shows that the respondent
No.1 has in fact furnished the information in Column (5)(i) and
(ii) therein, in compliance of the provision of Section 33-A(1)(i)
of the said Act. In Column (5)(i), the respondent No.1 has given
the details of the cases pending against him in which the charges
have been framed by the Court of competent jurisdiction for the
offences punishable with imprisonment for two years or more. In
Column (5)(ii), he has also furnished the information regarding
the cases pending against him in which the cognizance has been
taken by the Court other than the cases mentioned in
Column (5)(i).
16. Clause (i) of sub-section (1) of Section 33-A of the
said Act contemplates five types of cases, viz. (a) where a
candidate at an election leaves totally blank, the space meant for
such information in the prescribed Form No. 26; (b) where there
is disclosure of some pending cases in which a candidate is an
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accused, but there is non-disclosure of the other pending cases in
which also he is an accused; (c) where the information furnished
is found to be completely false and incorrect; (d) where there is a
disclosure of some offences in a pending case or cases in which
he is accused, but there is non-disclosure of the other offences in
the same case in respect of which also he is an accused; and (e)
where there is some defect or irregularity, which is not of a
substantial character in furnishing of such information in the
nomination form.
17. After reading the petition as a whole, I find that the
petitioner is coming before the Court with a case of
non-disclosure of pending Regular Criminal Case No.343 of 2003
(Madanlal Parate v. Shri Hastak & others), and Summary
Criminal Case No.231 of 1996 (Madanlal Parate v. Devendra
Fadnavis), in which he is an accused in respect of the offences,
which are punishable with imprisonment for a period of two years
or more. This attracts non-disclosure of these cases in
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Column (5)(i) in the affidavit in Form No.26 read with
Section 33-A(1)(i) of the said Act. Though in the third case,
which is Crime No.252 of 1991, the offences in respect of which
the respondent No.1 is an accused are stated to be under
Sections 147, 148 and 324 of the Indian Penal Code, there is
non-disclosure of the other offences under Sections 149, 294, 448,
324 and 336 of the Indian Penal Code for which the punishment
prescribed is for a period of less than two years. This would be a
case of non-disclosure of some offences in the same case, in
Column (5)(ii) in the affidavit in Form No.26 read with
Section 33-A(2) of the said Act. I would, therefore, treat the
petition as one reflecting non-disclosure of certain material
information, as required in Column (5)(i) and (ii) of the affidavit
in Form No.26 resulting in failure to comply with the provisions
of Section 33-A (1)(i) and (2) of the said Act.
18. The legislative history behind the provisions of
Sections 33(1) and 33-A(1)(i) and (2) of the said Act read with
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the contents of affidavit in Form No.26 under Rule 4-A of the
Conduct of Election Rules need to be seen. The decision of the
Apex Court in the case of Union of India and another v.
Association for Democratic Reforms and another, reported in
(2002) 5 SCC 294, is a milestone and triggered electoral reform
in the country, which has led to introducing the said provision.
The Apex Court has held that it was incumbent upon every
candidate, who is contesting the elections, to give information
about his criminal background, which requirement is not only
essential part of fair and free elections, but also every voter has a
right to know about the details of the candidate and such
requirement is also covered by freedom of speech granted under
Article 19(1)(a) of the Constitution of India.
19. In order to bring the directions contained in the said
decision within the statutory framework, the revised guidelines
were issued by the Election Commission on 23-3-2006. Para (3)
of the said guidelines/directions is relevant and hence it is
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reproduced below :
"(3) Non-furnishing of the affidavit by any
candidate shall be considered to be violation of the
order of the Hon'ble Supreme Court and the
nomination of the candidate concerned shall be liable
to rejection by the returning officer at the time of
scrutiny of nomination such non-furnishing of the
affidavit."
20. The meaning and scope of the aforesaid guidelines
came up for discussion before the Apex Court in the case of
Resurgence India v. Election Commission of India and another,
reported in AIR 2014 SC 344, which is a judgment rendered in a
petition under Article 32 of the Constitution of India for issuance
of specific directions to effectuate meaningful implementation of
the judgment in Association of Democratic Reforms, cited supra.
In the said decision, it is held that the candidate, who has filed an
affidavit with false information, as well as the candidate, who has
filed an affidavit with the particulars left blank, should be treated
on par, and it results in breach of fundamental right guaranteed
under Act 19(1)(a) of the Constitution, viz. "right to know", which
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is inclusive of freedom of speech and expression. It is further
held that if a candidate files an affidavit having blank particulars,
it renders the affidavit nugatory. It is further held that if a
candidate fails to furnish such information, then he is obviously
avoiding a statutory enquiry being conducted by the Returning
Officer under Section 36(2) of the said Act relating to his being
not qualified or disqualified in the light of Section 8 of the said
Act and it is bound to result in a defect of a substantial character
in the nomination.
21. In the latest decision of the Apex Court in case of
Krishnamoorthy v. Sivakumarand others reported in
(2015) 3 SCC 467, while dealing with the provisions of
Section 33-A read with Column (5)(i) in Form No.26, the Court
considered the question as to whether non-furnishing of the
information while filing an affidavit pertaining to the criminal
cases, especially cases involving heinous or serious crimes or
relating to corruption or moral turpitude would tantamount to
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corrupt practice, regard being had to the concept of undue
influence. In para 82 of the said judgment, the Apex Court has
held as under :
"82. But the question is when an election petition
is filed before an Election Tribunal or the High Court,
as the case may be, questioning the election on the
ground of practising corrupt practice by the elected
candidate on the foundation that he has not fully
disclosed the criminal cases pending against him, as
required under the Act and the Rules and the affidavit
that has been filed before the Returning Officer is
false and reflects total suppression, whether such a
ground would be sustainable on the foundation of
undue influence. We may give an example at this
stage. A candidate filing his nomination paper while
giving information swears an affidavit and produces
before the Returning Officer stating that he has been
involved in a case under Section 354 IPC and does
not say anything else though cognizance has been
taken or charges have been framed for the offences
under the Prevention of Corruption Act, 1988 or
offences pertaining to rape, murder, dacoity,
smuggling, land grabbing, local enactments like the
Maharashtra Control of Organised Crime Act, 1999,
U.P. Control of Goondas Act, 1970, embezzlement,
attempt to murder or any other offence which may
come within the compartment of serious or heinous
offences or corruption or moral turpitude. It is apt to
note here that when an FIR is filed a person filing a
nomination paper may not be aware of lodgement of
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the FIR but when cognizance is taken or charge is
framed, he is definitely aware of the said situation. It
is within his special knowledge. If the offences are not
disclosed in entirety, the electorate remain in total
darkness about such information. It can be stated
with certitude that this can definitely be called
antecedents for the limited purpose, that is, disclosure
of information to be chosen as a representative to an
elected body."
The Court has held that when the FIR is filed, a person filing a
nomination paper may not be aware of lodgment of the FIR, but
when the cognizance is taken or charge is framed, he is definitely
aware of the said situation. It is held that it is within his special
knowledge and if the offences are not disclosed in entirety, the
electorate remain in total darkness about such information. It is
further held that it can be stated with certitude that this can
definitely be called antecedents for the limited purpose, that is,
disclosure of information to be chosen as a representative to an
elected body.
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22. In para 86 of the decision of Apex Court in
Krishnamoorthy's case, cited supra, it is held that the requirement
of a disclosure especially the criminal antecedents, enables a voter
to have an informed and instructed choice. If a voter is denied of
the acquaintance to the information and deprived of the condition
to be apprised of the entire gamut of criminal antecedents relating
to heinous or serious offences or offences of corruption or moral
turpitude, the exercise of electoral right would not be an advised
one. He will be exercising his franchise with the misinformed
mind and his fundamental right to know also gets nullified. The
Apex Court has held that while filing the nomination form, if the
requisite information, as has been highlighted by us, relating to
criminal antecedents, is not given, indubitably, there is an attempt
to suppress, effort to misguide, and keep the people in dark. It is
further held that this attempt undeniably and undisputedly is
undue influence and, therefore, amounts to corrupt practice and
the election is liable to be declared as null and void under
Section 100(1)(b) of the said Act.
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23. The position, which emerges from the decision of the
Apex Court, cited supra, can be summarized as under :
(i) The object and purpose of introducing
Section 33-A of the Representation of the
People Act, 1951 calling information in Form
No.26 on affidavit under Rule 4-A of the
Conduct of Election Rules is to effectuate the
fundamental right of freedom of speech and
expression, as granted to the voters under
Article 19(1)(a) of the Constitution of India, to
know the criminal antecedents of the candidates
at an election, which is necessary concomitant
for a free and fair election. [Para 18]
(ii) The candidate filing an affidavit with false
information as well as the candidate leaving
particulars in the affidavit blank, are treated on
par, resulting in breach of fundamental right
guaranteed under Article 19(1)(a) of the
Constitution of India, rendering affidavit
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nugatory. [Para 20]
(iii) Failure to furnish information on the affidavit in
Form No.26 under Rule 4-A of the Conduct of
Election Rules read with Section No.33-A of
the said Act is obviously to avoid statutory
enquiry being conducted by the Returning
Officer under Section 36(2) of the
Representation of People Act relating to the
candidate being not qualified or disqualified in
the light of Section 8, as contained in ground
under Section 100(1)(a) therein, and it is bound
to result in a defect of a substantial character.
[Para 20]
(iv) In cases of heinous or serious offences, if the
cognizance is taken or charge is framed, the
candidate is definitely aware of the said
situation. It is within his special knowledge. If
such offences are not disclosed in entirety, the
electorate remain in total darkness about such
information. The exercise of electoral right
would not be an advised one and he will be
exercising his franchisee with the misinformed
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mind. [Paras 21 and 22]
(v) In case where nomination form is accepted in
breach of the mandate of Section 36(2)(b) read
with Section 33-A(1)(i) and (2) of the said Act,
it would be a case of a corrupt practice of
"undue influence" under Section 100(1)(b)
read with Section 123(2) of the said Act.
[Para 22]
24. Every candidate at an election is duty bound to
honestly disclose full and complete information called on the
affidavit in Form No.26 so as to make himself qualified to be
chosen as a candidate at an election. Any suppression or
concealment or non-disclosure of the material information, which
is within his special knowledge, may be treated as a defect of a
substantial character so as to adversely affect on his being
qualified to be chosen for nomination as a candidate for election.
It may not be possible for the Returning Officer at the stage of
scrutiny of nomination paper to conduct a detailed enquiry about
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the correctness of the information furnished, or non-disclosure,
concealment or suppression of the material information, either for
want of objection or because of time constraints or for want of
adequate machinery to conduct such an enquiry. In such a case, a
decision on these aspects is merely deferred and can be made the
subject-matter of challenge in an election petition.
However, mere quoting of wrong Sections in the
election petition will not prevent the Court from treating the
petition challenging the election of the respondent No.1 on the
ground under Section 100(1)(a) of the said Act, namely, that on
the date of his election, the respondent No.1 was not qualified to
be chosen to fill the seat under the Constitution or the
Representation of People Act, 1951. Such petition is not required
to be supported by an affidavit, as contemplated by the proviso to
Section 83(1) and there is no other legal impediment in treating
this petition on the ground under Section 100(1)(a) of the said
Act. Though this petition challenges the election of the
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respondent No.1 on the grounds under Section 100(1)(d)(i) and
(iv) of the said Act, it can be treated as petition on the ground
under Section 100(1)(a) of the said Act also.
26. This petition is not filed on the ground mentioned in
Section 100(1)(b) of the said Act, alleging that the respondent
No.1 is guilty of corrupt practice of "undue influence", as defined
under Section 123(2) of the said Act, and this position is
conceded by the petitioner, in response to such question put to
him during the course of arguments. Even otherwise, the petition
cannot be treated as raising a ground of corrupt practice because
it is not supported by an affidavit in the prescribed form in
support of such allegation along with the particulars thereof, as
contemplated by the proviso in Section 83(1) of the said Act.
After the petition was closed for orders on 10-7-2015, the
petitioner filed an affidavit in Form No.25 under Rule 94-A of
the Conduct of Election Rules on 13-7-2015 stating that it is in
support of the allegation of corrupt practice of "undue influence"
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under Section 123(2) of the said Act, which cannot be accepted
for the reason that it is filed much after the period of limitation
has expired.
27. Shri Sunil Manohar, the learned Senior Counsel, assisted
by Advocate Shri Deven Chauhan, appearing for the respondent
No.1, has urged that even if it is accepted that there is
non-compliance of the requirement of Section 33-A(1)(i) and (2)
read with Section 33(1) of the said Act, it would not ipso facto
make the petitioner entitled to any relief claimed in the petition.
According to him, the petition challenges the election of the
respondent No.1 on the grounds under Section 100(1)(d)(i) and
(iv) of the said Act and, therefore, the petitioner has to specifically
plead and prove the material fact that the result of the election
"insofar as it concerns the returned candidate" has been materially
affected by improper acceptance of such nomination paper by the
Returning Officer. He submits that unless this fact is proved, the
petitioner cannot succeed in this petition.
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28. Inviting my attention to para 10 of the petition, wherein
the averment is that "the non-disclosure has materially affected
the election of the respondent No.1 as a successful candidate",
Shri Manohar has urged that the said Act has attached much
significance to the expression "insofar as it concerns the returned
candidate" and, therefore, such is the material fact, which is
required to be pleaded in the petition, and it is totally absent. He
submits that there are several ways in which the result of the
election, insofar as the returned candidate is concerned, gets
affected. The respondent No.1 is, therefore, entitled to know how
and in what manner his election is alleged to be materially
affected. He submits that there is no pleading as to how and in
what manner the result of the election insofar as it concerns the
respondent No.1 has been materially affected. He has, therefore,
urged that it is not permissible for the petitioner to lead evidence
to prove this fact and hence the petition is liable to be rejected for
failure to make out a cause of action. In support of all his
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contentions, he has relied upon the following decisions of the
Apex Court :
(1) Jabar Singh v. Genda Lal
[AIR 1964 SC 1200],
(2) Santosh Yadav Vs. Narender Singh
[(2002) 1 SCC 160],
(3) G.S. Iqbal Vs. K.M. Khader & Ors.
[(2009) 11 SCC 398],
(4) Mangani Lal Mandal Vs. Bishnu Deo Bhandari
[(2012) 3 SCC 314],
(5) Shambhu Prasad Sharma Vs. Charandas Mahant &
Ors. [(2012) 11 SCC 390], and
(6) Arikala Narasa Reddy Vs. Venkata Ram Reddy
Reddygari & Anr. [(2014) 5 SCC 312]
29. Shri Satish Uke, the petitioner, appearing in person, has
urged that the facts stated in the petition have to be read as a
whole along with the contents of the documents, which are also
verified and signed in the manner prescribed to find out whether
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all the material facts are pleaded in the petition or not. He has
relied upon two decisions of the Apex Court in the cases of
(i) Kisan Shankar Kathore v. Arun Dattatray Sawant and others,
reported in AIR 2014 SC 2069, and (ii) Krishnamoorthy v.
Sivakumar and others, reported in (2015) 3 SCC 467. He submits
that there is a deliberate suppression of complete information by
the respondent No.1, as required by Sections 33(1) and 33-A(1)(i)
and (2) of the said Act read with Column (5)(i) and (ii) in his
affidavit in Form No.26, and this is a defect of a substantial
character. He has invited my attention to the contents of para 9 of
the petition, wherein it is stated that the respondent No.1 has
signed the personal release bond of Rs.3,000/- on 18-9-2000. In
para 10 of the petition, the averment is that the cognizance is
taken of the offences. He, therefore, submits that there are
pleadings in respect of material facts and the objection raised by
the respondent No.1 is required to be rejected.
30. Shri Manohar has placed heavy reliance upon the
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decision of the Apex Court in the case of Jabar Singh v. Genda
Lal, reported in AIR 1964 SC 1200, for his proposition that in
case of improper acceptance of nomination paper of the returned
candidate, the requirement of Section 100(1)(d)(i) need to be
complied with. It was a case where the appellant before the Apex
Court was declared elected by a margin of two votes. The
respondent No.1 therein filed an election petition on the ground
of improper reception of votes in favour of the appellant and
improper rejection of votes in his favour, as mentioned under
Section 100(1)(d)(iii) of the said Act. The Election Tribunal
declared the election of the appellant as void and the appeal
preferred before the Apex Court was dismissed. It was not a case
of improper acceptance of nomination of the returned candidate
at an election or of the candidate other than the returned
candidate under Section 100(1)(a) or Section 100(1)(d)(i) of the
said Act. This case is therefore, not an authority for the
proposition that in case of improper acceptance of nomination
paper of a "returned candidate", the requirement of
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Section 100(1)(d)(i) of the said Act regarding pleading and proof
that the result of the election insofar as it concerns a returned
candidate has been materially affected, is attracted.
31. In the case of Santosh Yadav, cited supra, there
were 17 candidates in the field, including the appellant and the
respondent. The respondent No.1 was elected by a margin of 334
votes. The election was challenged on the ground that the
nomination of one Shri Naresh Yadav was improperly accepted,
as he was disqualified under clause (a) of sub-sections (i) and (iii)
of Section 8 of the said Act. The High Court refused to set aside
the election on the ground that there was no pleading that the
result of the election insofar as it concerns the "returned
candidate", had been materially affected. The Apex Court held
that it is difficult to make reasonable guess, muchless with any
certainty that if Shri Naresh Yadav was excluded, then such
number of votes would have been taken out of the votes held by
him and fallen into the box of the appellant so as to make her
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successful. The Apex Court dismissed the appeal under
Section 116-A of the said Act. It was thus a case of improper
acceptance of the nomination paper under Section 100(1)(d)(i) of
the said Act, not of the "returned candidate" but of the candidate,
who was defeated. The decision is, therefore, not applicable to
the facts of this case.
In case of G.S. Iqbal, cited supra, the election petition
challenging the election of the respondent No.2, a returned
candidate, on the grounds set out in Section 100 (1)(d)(i) and (iv)
of the said Act was dismissed by the High Court, holding in
para 14 that there was no illegality in accepting the nomination
paper of the returned candidate. In para 22, the Apex Court has
held that as a matter of fact the petitioner neither specifically
pleaded nor proved that there has been non-compliance with any
of the provisions of Section 33 or 34 of the said Act and there
was no ground made out for rejection of nomination of the
"returned candidate" under Section 36(2)(b) of the said Act. It is
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thereafter the Court proceeds to consider the question of
non-compliance with the provisions of the Constitution and of the
Representation of People Act 1951, as contemplated under
Section 100(1)(d)(iv) therein.
33. The Apex Court held in G.S. Iqbal's case that in order
to make out a case under Section 100(1)(d)(iv) of the said Act, it
was necessary for the petitioner to specifically plead that the
election insofar as it concerned the "returned candidate" has
been materially affected by non-compliance with the provisions
of the said Act or the Rules made thereunder. The appeal before
the Apex Court was dismissed. The finding in this case was that
in fact there was no case of improper rejection of the nomination
paper of the returned candidate made out under Section 36(2)(b)
of the said Act. It was not a case where the question of pleading
and proof of the fact that the result of election was materially
affected upon improper acceptance of the nomination paper of a
"returned candidate" that was involved.
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34. In the case of Mangani Lal, cited supra, the petition
was on the grounds under Section 100 (1)(d)(i) and (iv) of the
said Act challenging the election of a returned candidate, which
was set aside by the High Court on the ground of non-disclosure
of assets and liabilities of his wife and children. The High Court
placed heavy reliance upon the decision of the Apex Court in
case of Union of India v. Association of Democratic Reforms,
reported in (2002) 5 SCC 294, and People's Union for Civil
Liabilities v. Union of India, reported in (2003) 4 SCC 399, to
hold that the suppression of facts by the returned candidate with
regard to the assets and liabilities was breach of the Constitution,
namely Article 19(1)(a), and has breached the right of
information of the electors.
35. In paras 11 and 12 of the decision in Mangani Lal's
case, the Apex Court has held that a mere non-compliance or
breach of the Constitution of the statutory provisions noticed
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above, by itself, does not result in invalidating the election of a
returned candidate under Section 100 (1)(d)(iv) of the said Act.
The sine qua non for declaring the election of a returned
candidate to be void on the ground under clause (iv) of
Section 100(1)(d) of the said Act, is further proof of the fact that
such breach or non-observance has resulted in materially
affecting the result of the returned candidate. It is held that the
election-petitioner to succeed on such ground has not only to
plead and prove the ground but also that the result of the election
insofar as it concerned the returned candidate has been materially
affected. The Apex Court found that there was no such pleading
and, therefore, the decision of the High Court setting aside the
election of the returned candidate was reversed. Though the
petition was on the grounds under Section 100(1)(d)(i) and (iv) of
the said Act, the decision is only in respect of the ground under
Section 100(1)(d)(iv), which was neither a case of improper
acceptance of nomination paper of a returned candidate nor of
any other candidate. Hence, the decision is not an authority on
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the improper acceptance of nomination paper of a returned
candidate. The decision is therefore, not applicable in the present
case.
36. In the case of Shambhu Prasad Sharma, cited supra,
the High Court dismissed the election petition under Order VII,
Rule 11(a) of the Civil Procedure Code on the ground of lack of
pleading of material facts. There were 17 candidates in the field,
excluding the appellant, who was defeated by the respondent
No.1, who was elected. The case was that the nomination form of
the respondent Nos.2 to 18 ought to have been rejected for non-
compliance of Sections 33-A and 33-B of the said Act. The
petition was on the ground mentioned in Section 100 (1)(d)(i) of
the said Act, i.e. in respect of wrongful acceptance of the
nomination papers of the candidates other than the "returned
candidate" and the petitioner. In this background, the Court
considered the question of failure to plead material fact that the
election of the "returned candidate" was materially affected by
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such improper acceptance and the petition was dismissed on that
ground alone by the Apex Court. This decision is not an
authority in the case of improper acceptance of the nomination
paper of the returned candidate.
37. In the decision of Arikala Narasa Reddy, cited supra, it
was a case before the Apex Court of improper reception of votes
under Section 100 (1)(d)(iii) of the said Act and the claim was for
re-count of votes. The appellant was declared elected by one vote
and the question of validity of three votes held in favour of
respondent No.1, which were wrongly rejected, and one vote
counted in favour of the appellant, ought to have been rejected.
In this background, the question of pleading and proof that the
result of the election has been materially affected, was
considered. The High Court declared that the respondent No.1
was elected by a margin of two votes and the Supreme Court
modified the said order. It was a case under
Section 100(1)(d)(iii) and not under Section 100(1)(a) or
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Section 100(1)(d)(i) of the said Act. This decision is not an
authority for the proposition that in case of improper acceptance
of the nomination paper of the returned candidate, the
requirement of pleading and proof that the result of the election
insofar as it concerns a returned candidate is materially affected,
as contained in Section 100(1)(d)(i) of the said Act, is attracted.
On the contrary, though separate, but concurring
judgment delivered by Shri N. Rajagopala Ayyangar, J. (as he
then was the Member of the Bench) in the case of Jabar Singh, is
heavily relied upon by Shri Manohar, in which it is held as under:
"For instance, let me take a case within
S. 100(1)(d)(i) where there has been an improper
acceptance of any nomination. The question arises as
to whether the election of the returned candidates has
been materially affected by the improper acceptance.
Obviously, a nomination which is alleged to have
been improperly accepted and which is the subject of
the charge under S. 100(1)(d)(i) is not the acceptance
of the nomination either of the election petitioner
where he has been one of the candidates or of the
returned candidates but only of one of the other
defeated candidates.(emphasis supplied). If after
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inquiry the nomination is found to have been
improperly accepted and the Tribunal proceeds to
inquire as to its effects on the election, I take it, it
would necessarily have to consider the votes received
by that candidate. If this is not to be done it would
either mean that in every case of an improper
acceptance of a nomination the election is to be
declared void or that in no case can such a
declaration be made. Now, if the vote cast in favour
of that candidate whose nomination was improperly
accepted have to be counted, necessarily there has to
be a scrutiny and the Tribunal would have to inquire
and ascertain the number of valid votes cast for that
candidate in order to determine whether the improper
acceptance of votes in favour of that candidate has
materially affected the result of the election i.e has
resulted in the election of the "returned candidate".
In that context the scrutiny of the improper reception
of the votes in favour of such candidate would
obviously have to take place and that could be done
only by virtue of the provision in S. 100(1)(d)(iii).
This would at least show that the expression of "any
vote" in the clause has to be read as meaning 'any
vote cast in the election with which the petitioner is
concerned' and not 'any vote cast in favour of the
"returned candidate"', to take the illustration merely
of the improper reception of a vote." (Emphasis
supplied)
The Apex Court has answered the question as to whether the
election of the "returned candidate" has been materially affected
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by improper acceptance and it is held that obviously a nomination
paper, which is alleged to have been improperly accepted and
which is the subject of the challenge on the ground under
Section 100(1)(d)(i), is not the acceptance of the nomination,
either of the election-petitioner, where he has been one of the
candidates or of the "returned candidate", but only of one of the
other defeated candidates. Though Shri Manohar has relied upon
this decision in support of his contention, in fact the decision is
an authority for the proposition of law that the requirement of
Section 100(1)(d)(i) of the said Act is not attracted in case of
improper acceptance of the nomination paper of a returned
candidate, which runs contrary to his own arguments.
39. The aforesaid view gets reinforced from the further
observation of the Apex Court that while deciding the question of
materially affecting the result of election, insofar as it concerns a
"returned candidate", the Court will have necessarily to
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scrutinize the votes of the candidate, who is defeated, and not the
votes of the candidate, who is declared to be elected. The Court
will have to make an enquiry to ascertain the number of valid
votes caste for the candidate whose nomination was improperly
accepted, to determine whether such votes have materially
affected the result of the election of a returned candidate.
In the case of Kisan Shankar Kathore, cited supra,
replied upon by Shri Satish Uke, the petitioner in person, it was a
case where the appellant before the Division Bench of two Judges
of the Apex Court, was the "returned candidate" whose election
was declared as null and void by the High Court on the ground
that there was non-disclosure of dues of the Government and
Public Undertakings and also of movable and immovable
properties owned by his wife and the partnership firm, in which
he was a partner. The High Court held that it was a material
defect and the nomination form filed along with the affidavit was
tainted, which resulted in improper acceptance of nomination
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paper, within the meaning of Section 100(1)(d)(i) of the said Act.
41. In Kisan Shankar Kathore, it was a petition filed under
Section 100 (1)(d)(i) and (iv) of the said Act and the High Court
framed an issue as to whether on account of acceptance of the
nomination paper, the election result is materially affected? This
issue was answered as under, by the High Court in para 137 of its
judgment, which is reproduced below:
"137. In my opinion, it is not necessary to elaborate
on this matter beyond a point, except to observe that
when it is a case of improper acceptance of nomination
on account of invalid affidavit or no affidavit filed
therewith, which affidavit is necessarily an integral
part of the nomination form; and when that challenge
concerns the returned candidate and if upheld, it is not
necessary for the Petitioner to further plead or prove
that the result of the returned candidate has been
materially affected by such improper acceptance."
(Emphasis supplied)
The High Court held that when the challenge on the ground of
improper acceptance concerns the returned candidate and it is
upheld, it is not necessary for the petitioner to further plead and
ep1.14.odt
prove that the result of the returned candidate has been materially
affected. The Apex Court dismissed the appeal under
Section 116-A of the said Act and held in para 33 that the finding
of the High Court on non-disclosure of information qua all
aspects, is without blemish and the information contained in the
affidavit cannot be treated as sufficient/substantial compliance.
The Apex Court observed in Kisan Shankar Kathore's
case that when the objections are raised to the correctness of the
information or alleging that there is non-disclosure of certain
important information in the affidavit filed along with the
nomination paper, it may not be possible for the Returning
Officer at that time to conduct a detailed examination and to
reject the nomination paper. Where such a detailed enquiry is
needed, would depend upon the outcome thereof in an election
petition, as to whether the nomination was properly accepted or it
was a case of improper acceptance. Once it is found that it was a
case of improper acceptance, as there was misinformation or
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suppression of material information, one can state that question
of rejection in such a case was only deferred to a later date.
When the Court gives such a finding, which would have resulted
in rejection, the effect would be same, namely, such a candidate
was not entitled to contest and the election is void.
43. This decision in Kisan Shankar Katore's case is,
therefore, clearly an authority for the proposition that when the
challenge on the grounds under Section 100(1)(d)(i) and (iv)
concerns a returned candidate and if upheld, it is not necessary
for the petitioner to further plead and prove that the result of the
returned candidate has been materially affected by such improper
acceptance. It supports the contention of the petitioner. The
High Court and the Apex Court in fact considered this case as
one on the ground under Section 100(1)(a) of the said Act,
although it is not so specifically stated in the decision. The
contention of Shri Manohar that in this case the Courts have not
considered the aspect of pleading and proof of materially
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affecting the result of the election of the returned candidate, is,
therefore, rejected.
44. In view of the aforesaid decisions, the position of law
can be summarized as under:
(i) Mere quoting of wrong sections in the election
petition will not prevent the court from treating
the petition challenging the election of the
respondent No.1 on the ground under
Section 100(1)(a) of the said Act. Though the
present petition is filed on the grounds
mentioned in Section 100(1)(d)(i) and (iv) of
the said Act it can be treated as the petition
challenging the election of the respondent No.1
on the ground under Section 100(1)(a) of the
said Act, namely that on the date of his election,
the respondent No.1 was not qualified to be
chosen to fill the seat under the Constitution or
the Representation of People Act, 1951.
[Paras 25 and 41 to 43]
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(ii) The requirement of Section 100(1)(d)(i) of the
said Act to establish that the election of the
returned candidate has materially affected is not
attracted in a case, where there is improper
acceptance of nomination paper of the returned
candidate. [Paras 38, 40 and 41]
(iii) In order to show that the election of a returned
candidate is materially affected, as stipulated
under Section 100(1)(d)(i), the votes secured by
a candidate who is defeated and whose
nomination paper was improperly accepted, are
required to be counted. [Para 39]
(iv) Once it is found that it is a case of improper
acceptance of nomination paper of a returned
candidate on the ground of suppression of
material information, it would result in rejection
of nomination paper and the declaration would
be that the returned candidate was not entitled
to contest and his election is void.
[Paras 41 to 43]
(v) Necessary corollary of improper acceptance of
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nomination paper of a returned candidate would
be that all the votes secured by him at the
election in question have to be ignored. The
only consequence would be that the result of his
election automatically gets materially affected.
45. Shri Manohar could not point out any authority in
support of his proposition that mere proof of improper
acceptance of nomination of a returned candidate will not, by
itself or ipso facto or per se entitled to a declaration claimed in
the petition. He also could not point out any authority for the
proposition that the requirement of pleading and proof that the
election of the returned candidate has materially affected, as
contemplated by Section 100(1)(d)(i) and (iv), is attracted in a
challenge on the ground of improper acceptance of the
nomination paper of a returned candidate. His contention that in
the present case, the petitioner shall not be entitled to any relief
unless it is pleaded and proved, as contemplated by Section
100(1)(d)(i) and (iv) of the said Act, and the result of the election
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insofar as it concerns the returned candidate was materially
affected by such improper acceptance, is completely
misconceived and, therefore, rejected. Consequently, it is held
here that the said requirement of Section 100(1)(d)(i) and (iv) of
the said Act is not attracted in case of improper acceptance of the
nomination paper of the returned candidate. It is further held that
upon proof of the fact that the nomination paper of the
respondent No.1 carried the defect of a substantial character
requiring the Returning Officer to reject the nomination under
Section 36(2) of the said Act, the petitioner shall be entitled to a
declaration claimed in the petition.
46. Presently, I am dealing with the application under
Order VII, Rule 11(a) of the Civil Procedure Code claiming
rejection of the petition at the threshold on the ground that it fails
to disclose the cause of action for want of pleading of material
facts. Section 83(1)(a) of the said Act inter alia provides that an
election petition shall contain a concise statement of the material
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facts, which is analogous to Order VI, Rule 2(1) of the Civil
Procedure Code. This provision states that every pleading shall
contain a concise form of the material facts on which the party
relies for the reliefs claimed. It is well-settled that all the facts,
which are essential to clothe the petition with complete cause of
action must be pleaded and failure to plead even a single material
fact would amount to disobedience of the mandate of
Section 83(1)(a) of the said Act, resulting in dismissal of the
election petition at the threshold under Order VII, Rule 11(a) of
the Civil Procedure Code for failure to disclose complete cause of
action. The entire chain of material facts leading to a relief
claimed in the petition should be complete and any missing in the
link shall result in failure to disclose the cause of action.
47. The cause of action is a bundle of all primary facts,
which, if proved, would entitle to a relief claimed in the petition.
Shri Manohar, the learned Senior Advocate does not dispute the
position of law that for the purpose of deciding the application
ep1.14.odt
under Order VII Rule 11(a) of the Code of Civil Procedure, the
court has to proceed on the assumption that the contents of the
petition are true and correct. What are the material facts, would
depend upon the facts and circumstances of each case. These are
all the principles of law laid down in the decisions of the Apex
Court in cases of (i) Charan Dass v. Surinder Kumar and others,
reported in 1995 Supp.(3) SCC 318, (ii) Anil Vasudeo Salgaonkar
v. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310, and
(iii) Jitu Patnaik v. Sanatan Mohakud and others, reported in
(2012) 4 SCC 194, relied upon by Shri Manohar.
48. Now, the question is about the pleading of the material
facts in respect of non-disclosure of information as required
under Column (5)(i) and (ii) of the affidavit in Form No.26,
resulting in failure to comply with the provisions of
Section 33-A(1)(i) of the said Act, making the respondent No.1
not qualified to be chosen to fill the seat under the provisions of
the Constitution and Representation of People Act. The
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petitioner has to make out a case in the pleading that the
nomination paper of the respondent No.1 suffered from a defect
of a substantial character and, therefore, it was required to be
rejected under Section 36(2)(b) of the said Act.
49. The provision of Section 33-A(1)(i) of the said Act,
which is relevant in this case, is attracted, if it is shown that prior
to the date of delivery of nomination paper under Section 33(1)
of the said Act -
(a) the respondent No.1 was an accused of any
offence punishable with imprisonment for
two years or more in a case pending against
him; and
(b) the Court of Competent jurisdiction had
framed a charge against him in respect of
such offence.
In order to enable the voters to effectively exercise the right of
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franchise with well informed mind, the material information
considered to be the bare minimum, to form an opinion to choose
the candidate to be voted at an election, is called from every
candidate in Column (5)(i) in the affidavit in Form No.26 is
under Rule 4-A of the Conduct of Election Rules.
50. If the petitioner is coming with a case of failure to
disclose or non-disclosure or concealment or suppression of such
information by the respondent No.1 in Column (5)(i) in the
affidavit in Form No.26, the petition must contain the following
material facts based upon the information called, viz. -
(i) the fact that the respondent No.1 is an accused
in the offences under specific Section/s of
specific Act/s with short description of such
offence/offences together with Cases/FIR
number with the details of the concerned Police
Station,
(ii) the fact that the offence/offences alleged against
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the respondent No.1 is/are punishable with
imprisonment for a period of two years or more,
(iii) the fact that such case/cases were pending
against the respondent No.1 on the date of
delivery of nomination paper under Section 33
of the said Act, alongwith the Case No./Nos.
and the name of the Court, where the matter is
pending,ig
(iv) the fact that the charge/charges were framed
against the respondent No.1 prior to the date of
delivery of nomination paper under Section 33
of the said Act in respect of the
offence/offences alleged against him alongwith
the specific date of framing of charge/charges
by the court of competent jurisdiction, and
(v) the fact that there is a failure to disclose or
non-disclosure or concealment or suppression
of the aforesaid material facts by the respondent
No.1 in his affidavit in Form No.26 delivered
along with the nomination form under
Section 33A(2) of the said Act to the Returning
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Officer.
If all the aforesaid facts are pleaded or found in the petition, then
it can be said that a cause of action is made out to attract the
provision of Section 33-A(1)(i) of the said Act and to claim
rejection of the nomination paper under Section 36(2) therein. It
is thereafter the Court can proceed further to complete the trial.
51. The petitioner has pleaded that the respondent No.1
has concealed the information that he is an accused in Regular
Criminal Case No.343 of 2003 for the offences under
Sections 109, 217, 218, 220, 420, 425, 466, 467, 468, 469, 471,
474 and 506-B read with Section 34 of the Indian Penal Code,
which is pending in the Court of Judicial Magistrate First Class at
Nagpur. The petitioner has also pleaded that the respondent No.1
is also an accused in Summary Criminal Case No.231 of 1996 for
the offence punishable under Section 500 of the Indian Penal
Code, which is pending in the Court of Judicial Magistrate First
ep1.14.odt
Class, Nagpur (Court No.6). Thus, the petitioner has given the
complete details of the cases, which are not disclosed by the
respondent No.1.
52. The petitioner has not pleaded in the petition that the
offences alleged against the respondent No.1 are punishable with
imprisonment for a period of two years or more. It is possible
that if the offences punishable are with imprisonment for a period
of less than two years, then the provision of Section 33-A(1)(i) of
the said Act would not be attracted. However, in my opinion such
failure to plead would not make any difference for the reason that
the particular provisions in respect of the offences in which the
respondent No.1 is an accused are specifically stated and it is a
mater of law to go to the said provisions to find out whether the
offences are punishable with imprisonment for a period of two
years or more, so as to attract the said provision. It cannot be said
that it is a case of absence of pleading of material facts stated in
Items No.(i) to (iii) above.
ep1.14.odt
53. Coming to the Item No.(iv), it is necessary for the
petitioner to plead the material fact that prior to the date of
delivery of nomination paper under Section 33(1) of the said Act,
the charge/charges were framed against the respondent No.1 in
respect of the offences which are not disclosed in Column (5)(i)
in the affidavit in Form No.26 by the Court of competent
jurisdiction. The date of framing of charge/charges becomes a
material fact. Such pleading is significant to make out a case
under Section 33-A(1)(i) of the said Act. Shri Manohar is right
in urging that in the present case, neither a specific date of
framing such charge is pleaded nor the pleading is that the charge
was framed prior to the date of delivery of nomination paper by
the respondent No.1. Such pleadings are completely absent in the
petition.
54. When the charge is framed prior to the date of
submitting nomination paper, it raises a presumption about the
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knowledge of the pendency of such proceedings to the respondent
No.1 and the statutory obligation to disclose it in Form No.26
arises. If the charge is framed subsequently to the delivery of
nomination paper under Section 33 of the said Act, it cannot be
said that there was any such statutory obligation upon the
respondent No.1 to disclose such information in Form No.26. A
specific question was put to the petitioner Shri Satish Uke as to
whether the charge/charges were framed against the respondent
No.1 prior to the delivery of nomination paper under
Section 33(1) of the said Act in respect of the offences not
disclosed, his response is that such charges were not so framed.
There is no case made out in the pleadings to attract the provision
of Section 33-A(1)(i) of the said Act and to reject the nomination
paper of the respondent No.1 under Section 36(2) therein. The
period of limitation has expired and the petitioner cannot be
permitted to cure this defect by incorporating such pleadings. No
amount of evidence can be permitted to be led. The lack of
pleading of such material facts becomes fatal for the Court to
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proceed on the trial of the election petition.
55. Faced with the situation that there is no pleading that
the charge/charges was/were framed against the respondent No.1
prior to the date of delivery of nomination paper under
Section 33(1) of the said Act, Shri Satish Uke, the petitioner
appearing in person, has urged that it is a case of clear
non-compliance of the requirement of information contained in
Column (5)(ii) in the affidavit in Form No.26 which require
furnishing of information of cases pending against the respondent
No.1 in which cognizance has been taken by the Court of
Competent jurisdiction [other than the cases mentioned in
Column (5)(i)]. He submits that Column (5)(ii) is the part and
parcel of Section 33-A(1)(i) and (2) of the said Act and lack of
pleadings regarding framing of charge prior to the date of
nomination is not material in such case. According to him, all the
three cases were required to be disclosed at least in
Column (5)(ii) in Form No.26 by the respondent No.1 and since
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there is undisputed non-disclosure, it is a case of non-compliance
of Section 33-A(1)(i) and (2) of the said Act requiring rejection
of nomination paper under Section 36(2) of the said Act.
56. For the purpose of this application, I proceed on the
footing that Column (5)(ii) in Form No.26 is the part and parcel
of Section 33-A(1)(i) and (ii) of the said Act and all the
undisclosed three cases were required to be disclosed at least in
Column (5)(ii) of the affidavit in Form No.26 by the respondent
No.1. In order to show such failure to comply, what is required to
be pleaded in the petition as a material fact is that the cognizance
of the offences in which respondent No.1 is accused, was taken
by the Court of competent jurisdiction prior to the date of
delivery of nomination paper under Section 33(1) of the said Act.
The date of taking cognizance is a material fact which is also
required to be stated in Item (a) in Column (5)(ii) in Form No.26.
It is, therefore, required to be pleaded in the petition, the
significance of it being that it raises a presumption about the
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knowledge of the pending cases to the respondent No.1. There is
neither a specific date of taking cognizance pleaded nor the
pleading is that the cognizance was taken prior to the date of
delivery of nomination paper by the respondent No.1. Such
pleadings are completely absent in this petition. Merely because
the respondent No.1 is shown to have been released on execution
of bail bond of Rs.3000/- on 18-9-2000, that by itself does not
mean that prior to the date of delivery of nomination paper, either
the case was pending against him or the Court had taken
cognizance of the offences alleged against him. The lack of
pleading regarding such material facts becomes fatal for the
Court to proceed on the trial of the election petition.
57. The pleading in paragraph 27A in the petition is that
though the respondent No.1 has disclosed Crime No.252 of 1991
in Column (5)(i) in which he is an accused in respect of the
offences under Sections 147, 148 and 324 of the Indian Penal
Code, there is non-disclosure of the other offences under
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Sections 149, 294, 448, 324 and 336 of the Indian Penal Code.
Form No.26 delivered by the respondent No.1 shows that the date
of taking cognizance by the Court of Judicial Magistrate First
Class No.2 at Nagpur in respect of those offences is shown in
Column (5)(i) as 16-7-1991 along with the date of framing of
charge as 4-1-2006. The respondent No.1 has disclosed that he is
an accused in this case in respect of the offences under Sections
147, 148 and 324 of the Indian Penal Code for which the
punishment prescribed is of two years or more. The offences
under Sections 149, 294, 448, 324 and 336 of the Indian Penal
Code in the same case are not disclosed and they are punishable
with imprisonment for a period of less than two years. It is
therefore not a case of non-disclosure of the information required
under Section 33-A(1)(i) of the said Act. Be that as it may, there
is no pleading that the defect was of a substantial character and,
therefore, the Returning Officer was required to reject the
nomination paper of the respondent No.1 under Section 36(2) of
the said Act, on that ground alone.
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58. Though in the application filed under Order VII,
Rule 11(a) of the Civil Procedure Code an objection is raised that
the verification to the petition suffers from a defect of incurable
nature, the learned Senior Advocate Shri Manohar has conceded
to position that the defect is curable and the petitioner can be
permitted to cure such defect and the petition cannot be rejected
on that ground alone. I, therefore, need not consider this question
in detail.
59. From what has been held above, it is apparent that it is
a case of failure to plead material facts of non-disclosure of
information in Column (5)(i) and (ii) of the affidavit in Form
No.26 delivered under Section 33-A(1)(i) and (2) of the said Act
that prior to the date of delivery of nomination paper under
Section 33 of the said Act - (i) a charge was framed against the
respondent No.1 in a case pending in respect of any offence
punishable with imprisonment for a period of two years or more,
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or (ii) he was an accused in a pending case in which cognizance
was taken in respect of any offence punishable with
imprisonment for less than two years and such defect was of a
substantial character requiring the rejection of the nomination
paper under Section 36(2) of the said Act.
60. In the result, Civil Application No.993 of 2015 at
Exhibit 13 is allowed. Consequently, the election petition is
rejected under Order VII, Rule 11(a) of the Civil Procedure Code.
The security deposit is forfeited. No order as costs.
JUDGE.
PDL/NSN
