Bombay High Court
Rajan Baburoa Vichare vs Naresh Ganpat Mhaske on 9 September, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-OS:14621
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jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally
signed by
APPLICATION IN E.P. (L) NO.30947 OF 2024
JITENDRA
JITENDRA SHANKAR
SHANKAR NIJASURE
NIJASURE Date:
IN
2025.09.09
15:10:13
+0530
ELECTION PETITION NO.3 OF 2024
Naresh Ganpat Mhaske ...Applicant /
Respondent No.1
In the matter between
Rajan Baburao Vichare ...Petitioner
Versus
Naresh Ganpat Mhaske & Ors. ...Respondents
WITH
APPLICATION IN E.P. (L) NO.31834 OF 2024
Gurudev Narsingh Suryavanshi ...Applicant /
Respondent No.14
In the matter between
Rajan Baburao Vichare ...Petitioner
Versus
Naresh Ganpat Mhaske & Ors. ...Respondents
----------
Mr. Darius Khambata, Senior Counsel, Mr. Pankaj Savant, Senior
Counsel, Ms. Shreenandini Mukhopadhyay, Ms. Joshna D'Souza i/b.
Mr. Sanjay Gawde for the Petitioner.
Mr. Vikram Nankani, Senior Counsel, Mr. Chirag Shah, Mr. Vishal
Acharya, Mr. Shyamsundar Jadhav, Mr. Bhavya Shah and Mr. Mehul
Talera i/b. Mr. Chirag Shah for Respondent No.1 / Applicant in AEP
No.30947 of 2024.
Mr. Hare Krishna Mishra i/b. Law Global for Respondent No.14 and
Applicant in AEP No.31834 of 2024.
----------
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CORAM : R.I. CHAGLA J.
Reserved on : 13TH JUNE, 2025
Pronounced on : 9TH SEPTEMBER, 2025
J U D G M E N T:
-
1. By these Applications, the Respondent Nos.1 and 14 have
sought rejection of the Election Petition under Order VII Rule 11 of
the Code of Civil Procedure, 1908 as not being maintainable on the
ground that the same does not disclose any cause of action.
2. The case of the Petitioner in the Election Petition is that
in terms of Sr. No.6 of Form 26 as amended by Notification No. SO
5196 (E) dated 10th October, 2018, the Respondent No.1 ought to
have disclosed his conviction in a criminal offence in which he has
been convicted and his failure to disclose his conviction has rendered
his election liable to be set aside.
3. The Respondent No.1 had been convicted by an Order
dated 29th February, 2016 passed by the learned Chief Judicial
Magistrate, Thane which Order was upheld in Appeal vide Order
dated 9th February, 2017 passed by the learned Additional District
Judge - II, Thane but despite the same, the Respondent No.1 put a
tick mark against Sr. No.6(i) and stated "Not Applicable'' against Sr.
No.6(ii) of Form 26. Sr.No.6(ii) requires details of cases in which the
candidate has been convicted for the offences as required thereunder.
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4. The case of Respondent No.1 is that only if his conviction
resulted in imprisonment of one year or more, is he required to make
a disclosure in Form 26. Accordingly, the disclosure of Respondent
No.1 in Form 26 is true and correct since Respondent No.1 was
released on the basis of good conduct under the Probation of
Offenders Act, 1958 with no imprisonment.
5. Mr. Vikram Nankani, the learned Senior Counsel
appearing for the Respondent No.1 has submitted that Rule 4A of the
Election Rules, 1961 ("the 1961 Rules" or "Election Rules") was
inserted on 3rd September, 2002 vide Notification No.SO 935(E)
issued by the Central Government in exercise of powers conferred by
Section 169 of the Representation of People Act, 1951 ("1951 Act'').
He has submitted that Form 26 is in the form of an Affidavit to be
filed at the time of delivering nomination paper and which has also
been referred to in Section 33A (2) of the 1951 Act. He has
submitted that Section 33A was introduced with effect from 24th
August, 2002, first by an Ordinance, which was replaced by
Amendment Act, 1972. He has submitted that in case of conviction of
a candidate of an offence and he being sentenced to imprisonment
for one year or more then the candidate shall furnish the information
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under Section 33A (1) (ii). Section 33A (ii) provides that where a
candidate has been convicted of an offence (other than any offence
referred to in sub-section (I) or sub-section (2), or covered in sub-
section (3) of Section (8)) and sentenced to imprisonment for one
year or more then the candidate is required to furnish the
information. Under Section 33A (2), this shall be by way of Affidavit
sworn by the candidate in a prescribed form verifying the
information as above. Further, under Section 33-A (3), the Returning
Officer shall as soon as may be after the furnishing of information to
him under sub-section (1), display the aforesaid information by
affixing a copy of the Affidavit delivered under sub- section (2), at a
conspicuous place at his office for the information of the electors
relating to a constituency for which the nomination paper is
delivered. The same procedure is to be followed as provided in
Section 33A (1)(i) for a pending case where the candidate is accused
of an offence punishable with imprisonment of two years or more
and in which a charge has been framed by the Court of competent
jurisdiction.
6. Mr. Nankani has submitted that Section 33A is based on
the principle that a voter has a right to information about the
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candidate, and that such a right is enshrined in Article 19(1)(a) of
the Constitution, which deals with freedom of speech and expression.
7. Mr. Nankani has submitted that the first judgment on the
subject is in the case of Union of India Vs. Association for Democratic
Reform, (ADR Judgment)1, which arose out of a Writ Petition filed
under Article 226 of the Constitution of India before the Delhi High
Court, for direction to implement the recommendation made in the
170th Report of the Law Commission and make necessary change in
Rule 4 of the 1961 Rules. The Delhi High Court had dismissed the
Writ Petition holding that it was the function of Parliament to make
necessary amendments in the 1951 Act including the nomination
papers in prescribed Forms 2-A to 2-E. The Delhi High Court directed
the Election Commission to secure to voters certain information
pertaining to each candidate, which inter alia included whether the
candidate is accused of an offence punishable with imprisonment.
The Supreme Court had framed the following questions :-
(i) Whether the Election Commission is empowered to issue
directions as Ordered by the High Court?
1 (2002) 5 SCC 294
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(ii) Whether right to know exists about the candidates
contesting elections?
8. Mr. Nankani has submitted that on the first question, the
Supreme Court held that the Constitution has made comprehensive
provisions under Article 324 and it operates in areas left unoccupied
by legislation and that the only limitation of plenary character of the
power of the Election Commission is when the Parliament or the
State Legislature has made a law relating to or in connection with
elections. The Supreme Court has further held that where the law is
silent, the Election Commission can issue orders under Article 324(1)
of the Constitution. The Supreme Court has thereafter modified the
directions given by the High Court and directed the Election
Commission to call for information on Affidavit by giving necessary
Orders under Article 324 of the Constitution.
9. Mr. Nankani has in particular referred to paragraphs 48
and 49 of the aforementioned ADR Judgment, where the Supreme
Court has directed the Election Commission to call for information on
Affidavit by issuing necessary Order in exercise of powers under
Article 324 of the Constitution of India. One such information on the
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aspect in relation to his / her candidature is, ''Whether the candidate
is convicted / acquitted / discharged of any criminal offence in the
past - if any, whether he is punished with imprisonment or fine".
Another information is that, prior to six months of filing of
nomination, whether the candidate is accused in any pending case, of
any offence punishable with imprisonment for two years or more,
and in which charge is framed or cognizance is taken by the Court of
law. If so, the details thereof.
10. Mr. Nankani has submitted that following the directions
of the Supreme Court in the ADR Judgment, the Election Commission
issued an Order dated 28th June, 2002, whereby the Election
Commission prescribed the format in which an Affidavit was to be
furnished by a candidate along with the nomination paper. The
format of the Affidavit prepared by the Election Commission required
the candidate to disclose the past conviction with imprisonment
and / or quantum of fine imposed, and insofar as pending criminal
cases were concerned, the Election Commission required disclosure
of cases in the period ending six months prior to the filing of the
nomination paper, where the candidate was accused of an offence
punishable with imprisonment with two years or more and in which
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a charge had been framed or cognizance taken by the Court. Insofar
as past convictions are concerned, the Affidavit prescribed by the
Election Commission required disclosures of those cases where the
candidate was convicted with punishment in the form of
imprisonment or fine imposed.
11. Mr. Nankani has submitted that on 24th August, 2002,
the Representation of People (Amendment) Ordinance, 2002 was
issued whereby, as aforesaid, Section 33-A and Section 33-B were
inserted. This ordinance was replaced by the Representation of the
People (Third Amendment) Act, 2002 on 28th December, 2002.
12. Mr. Nankani has submitted that vide Notification dated
3rd September, 2002, the Central Government inserted Rule 4-A in
the Election Rules and prescribed the format of the Affidavit in Form
26. As far as past convictions are concerned, Form 26 as prescribed
then, required the candidate to disclose cases where the candidate
was convicted of an offence (other than those under Section 8) and
sentenced to imprisonment for one year or more. As far as pending
criminal cases are concerned, the prescribed Form 26, required the
candidate to disclose those cases where the offence was punishable
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with imprisonment for two years or more and in which the charges
have been framed by the Court of competent jurisdiction. He has
submitted that Form 26 as prescribed by the Central Government, did
not require disclosure of pending criminal cases in which cognizance
was also taken by the competent Court, although that was the
requirement in the Affidavit as prescribed by the Election
Commission. This meant that the candidate had to file two separate
Affidavits, one in the format prescribed by the Election Commission
vide Order dated 28th June, 2002 and the other prescribed by the
Central Government in Form 26 as notified on 3rd September, 2002.
13. Mr. Nankani has submitted that the next landmark case
decided by the Supreme Court was the case of the People's Union for
Civil Liberties Vs. Union of India2 (referred to as ''PUCL Judgment'') .
He has submitted that the Supreme Court in the PUCL Judgment was
considering challenge to the constitutional validity of Section 33A
and Section 33B of the 1951 Act. The Supreme Court delivered three
separate opinions of their Lordships Mr. Justice M.B. Shah, Mr.
Justice Venkatarama Reddi and Mr. Justice D.M. Dharmadhikari. The
Supreme Court by a unanimous verdict of all the three Hon'ble
2 (2003) 4 SCC 399.
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Judges struck down Section 33-B being violative of Article 19(1)(a)
of the Constitution. He has submitted that it is pertinent to note that
Justice Venkatarama Reddi in paragraph 116 expressly upholds the
validity of Section 33-A (1)(ii). He has submitted that in the
conclusions, as recorded in paragraph 123 of the PUCL Judgment,
Justice Reddi in sub paragraph (6) held that Right to Information
provided for by Parliament under Section 33-A in regard to the
pending criminal cases and past involvement in such cases is
reasonably adequate to safeguard the Right to Information vested in
the voter / citizen. However, there is no good reason for excluding
the pending cases in which cognizance has been taken by the Court
from the ambit of disclosure.
14. Mr. Nankani has submitted that Justice Dharmadhikari
agreed with the conclusion of Justice Reddi recorded in the aforesaid
paragraph 123(6) of the PUCL Judgment (Supra). He has submitted
that it therefore, follows that the PUCL Judgment (Supra) expressly
upholds the constitutional validity of Section 33A(1)(ii).
Significantly, insofar as pending criminal cases are concerned, the
Supreme Court added that there is no reason to exclude the pending
cases in which cognizance has been taken by the Court of competent
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jurisdiction from the ambit of disclosures required as a Right to
Information provided under Section 33A (1)(i). However, no
additional requirement was imposed by the Supreme Court in the
PUCL Judgment insofar as disclosures relating to past convictions
under Section 33A (1)(ii) is concerned.
15. Mr. Nankani has submitted that the Election Commission
issued Notice dated 24th August, 2012 proposing amalgamation of
the two Affidavits into one form, the first being the form prescribed
by the Election Commission on 28th June, 2012 and the other being
the form prescribed by the Central Government under Rule 4A of the
1961 Rules. Acting on the proposal of the Election Commission, the
Central Government issued a Notification dated 1st August, 2012 in
exercise of powers under Section 169 of the 1951 Act. Insofar as past
convictions are concerned, Sr. No.6 of Form 26 as revised in 2012
was in conformity with Section 33-A(I) (ii) viz. the candidate had to
disclose whether he has been or not been convicted of an offence
(other than any offence referred to in sub-section (1) or sub- section
(2) or cover in sub-section (3) of Section 8 of the Representation of
the People Act, 1951) and sentenced to imprisonment for one year or
more.
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16. Mr. Nankani has submitted that changes were made in
Form 26 on 10th October, 2018. The Election Commission in its Press
Release also dated 10th October, 2018 attributed the changes in Form
26 to two judgments of the Supreme Court. The first is the judgment
in Krishnamoorthy Vs. Sivakumar3 and the second judgment is in the
case of Lok Prahari Vs. Union of India4. He has submitted that none
of these cases had anything to do with past convictions.
17. Mr. Nankani has submitted that the observations in
paragraph 91 of Krishnamoorthy (Supra) which has been relied upon
by the Petitioner to the effect that once the candidate is held to have
made an incorrect disclosure, the same would deem to be a corrupt
practice under Section 123 of the 1951 Act, are not applicable in the
present case, at least at this stage, when the corrupt practice is yet to
be proved in the trial. Insofar as past convictions are concerned, as
aforementioned, the requirement under Section 33A (1)(ii) of the
1951 Act has been upheld as constitutional by the Supreme Court in
PUCL Judgment (Supra).
18. Mr. Nankani has submitted that the second case, which
3 (2015) 3 SCC 467.
4 (2018) 4 SCC 699.
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led to the revision of Form 26 on 10th October, 2018, is the judgment
in Lok Prahari (Supra). It dealt with the disclosures in relation to the
financial condition or financial status of the candidate and his
dependents. He has submitted that this is a two Judge Bench which
heard a Writ Petition filed under Article 32 of the Constitution. He
has submitted that all observations and the findings of the Supreme
Court are purely and only in the context of non-disclosure of assets
and sources of income. Shortly put, Lok Prahari (Supra) did not deal
with the disclosures of past convictions.
19. Mr. Nankani has submitted that the judgments of the
Supreme Court in Krishnamoorthy (Supra) and Lok Prahari (Supra)
must be read harmoniously with the judgments of the Supreme Court
in ADR (Supra) and PUCL Judgment (Supra).
20. Mr. Nankani has submitted that the judgment cannot be
read as Euclid's Theorem. A small factual difference will also result in
the judgment not being a precedent. He has submitted that it is
settled law that the Courts should not place reliance on the decisions
without discussing as to how the factual situation fits in with the
factual situation of the decision on which reliance has been placed.
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21. Mr. Nankani has submitted that after the revision of
Form 26, came the judgment of the Supreme Court in Public Interest
Foundation Vs. Union of India5. In the said judgment, the Supreme
Court considered whether the conditions of disqualification /
disclosure can be laid down by the Supreme Court beyond Article
102(a) to (d) and the law made by Parliament under Article 102 (e).
After referring to the judgment in Lily Thomas Vs. Union of India6,
the Supreme Court held that ''We have no hesitation in saying that
the view expressed above in Lily Thomas (Supra) is correct, for
Parliament has the exclusive power to lay down disqualification for
membership" (Paragraph 8).
22. Mr. Nankani has submitted that the Supreme Court was
dealing with pending cases as is evident from the directions in
paragraph 116 of the said judgment. He has submitted that the
Supreme Court in Public Interest Foundation (Supra) issued
directions insofar as pending criminal cases are concerned, relating
the concerns which were highlighted by the Law Commission in its
244th Report exclusively referred to therein. No directions with
regard to past convictions were given.
5 (2019) 3 SCC 224.
6 (2013) 7 SCC 653.
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23. Mr. Nankani has submitted that the Petitioner has heavily
relied upon the judgment of the Supreme Court in Satish Ukey Vs.
Devendra Gangadhar Fadanvis7. He has submitted that although it is
true that the Supreme Court in paragraph 23 of Satish Ukey (Supra)
gave a wide meaning to the word 'information' as contained in
Section 33A, but these findings have to be restricted to the facts of
the case before the Supreme Court. In Satish Ukey (Supra) the
Supreme Court was concerned with the disclosures relating to
pending criminal cases and not past convictions. He has submitted
that it is in this context the Supreme Court held that information
relating to pending cases would go beyond the requirements of
Clause (i) of sub-section (1) of Section 33A. He has submitted that
this finding must be read on the same lines as contained in the ADR
Judgment (Supra) and the PUCL Judgment (Supra).
24. Mr. Nankani has submitted that the findings in
paragraph 24 of the judgment in Satish Ukey (Supra) must be read as
confined only to Entry 5(ii) of Form 26, as prescribed prior to 10th
October, 2018. He has submitted that in the last sentence of
paragraph 24, the Supreme Court has only reiterated the contents of
7 2019 9 SCC 1.
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Entry 5(i) and 6 without directing disclosure of any additional
information. He has submitted that the judgment of the Supreme
Court in Satish Ukey (Supra) supports the Applicant / Respondent
No.1's case herein.
25. Mr. Nankani has submitted that the PUCL Judgment
(Supra) was noticed and considered in Satish Ukey (Supra). He has
submitted that the Supreme Court in Satish Ukey (Supra) in
paragraphs 12, 13 and 14 has reproduced paragraphs 114, 115 and
paragraph 123 sub-paragraphs (4), (6) and (9) all from the opinion
of Justice Venkatarama Reddi, to the extent relevant to pending
criminal cases. This was in the context of there being no reason for
excluding pending cases in which cognizance has been taken by the
Court from the ambit of disclosure. He has submitted that it is
therefore, exfacie apparent that the entire focus in Satish Ukey
(Supra) was with reference to pending criminal cases.
26. Mr. Nankani has submitted that the PUCL Judgment
(Supra) and Satish Ukey (Supra) are both decisions of three Judges
Bench. He has submitted that it is impermissible to read Satish Ukey
(Supra) as taking a view contrary to and / or overturning PUCL
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Judgment (Supra). He has submitted that PUCL Judgment (Supra)
and Satish Ukey (Supra) must be read in harmony and reconciled
with the latter judgment in Satish Ukey (Supra) being confined only
to pending criminal cases in which cognizance had been taken by the
Court.
27. Mr. Nankani has submitted that the Petitioner has failed
to comply with the mandatory provisions in Section 83 (a) of the
1951 Act by failing to plead the necessary and material particulars /
facts qua concise statement to support his grounds for alleged corrupt
practice by Applicant / Respondent No.1. He has submitted that as
per Section 83(b) of the Act, the onus is put on the party alleging the
corrupt practice to set forth full particulars of the corrupt practice.
However, the Petitioner in his Petition has merely made bald and
vague statements against the Applicant / Respondent No.1 without
corroborating them with complete chain of events / documents.
28. Mr. Nankani has submitted that except for vague
averment of alleged violation of Section 123 (2) of the 1951 Act, the
Petitioner has failed to disclose and aver any violation and particulars
of so-called corrupt practice under Section 100(1) (b), Section
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100(d)(i), (ii) and (iv) of the 1951 Act against the Respondent No.1
as alleged in the Affidavit filed by the Petitioner in compliance of
proviso to Section 83(1) of the 1951 Act (Form 25 of Rule 94-A of the
Conduct of Election Rules, 1961).
29. Mr. Nankani has submitted that the Petitioner has failed
to state as to which facts led to undue influence i.e. direct or indirect
interference or attempt to interfere in election by the Applicant /
Respondent No.1, under Section 123(2) of the 1951 Act. The
Petitioner has also failed to state as to how there was non-compliance
of the provisions of the Constitution or of the 1951 Act or the Rules
made thereunder, which had materially affected the result of the
election. He has submitted that the Petitioner fails to make out any
ground / fact material to the cause of action in favour of the
Petitioner to file the present Petition to declare the election to be
void.
30. Mr. Nankani has submitted that the material facts are
required to be stated as those facts can be considered as material
supporting the allegations made. Failure to plead "material facts" is
fatal to the Election Petition and no amendment of the pleadings is
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permissible to introduce such material facts after the time limit
prescribed for filing the Election Petition. He has in this context
placed reliance upon the judgment of the Supreme Court in Hari
Shankar Jain Vs. Sonia Gandhi8. He has submitted that the Supreme
Court while dealing with similar allegations raised in Election
Petition for suppression of information under Form 26, reiterated the
relevance of material facts in Kanimozhi Karunanidhi Vs. A. Santhana
Kumar9. He has submitted that the election and result cannot be set
aside merely on bald and vague allegations raised by the Petitioner,
who had lost the election by margin of more than two lakh vote. He
has in this context placed reliance upon the judgment in the case of
C.P. John Vs. Babu M Palissery10, at paragraphs 18, 19, 20, 21 and 38.
31. Mr. Nankani has submitted that the Supreme Court in a
catena of decisions has held that in the absence of any proper
pleading that the result of the election, insofar as it concerns a
returned candidate, has been materially affected, the Election
Petition cannot be allowed to proceed further and deserves to be
rejected at the threshold itself. This is a fatal and incurable defect
8 (2001) 8 SCC 233.
9 (2023) SCC OnLine SC 573.
10 (2014) 10 SCC 547.
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which goes to the root of the matter.
32. Mr. Nankani has submitted that it is imperative that an
election petitioner taking the ground of Section 100(1) (d)(iv) of the
1951 Act has to necessarily aver that the result of the election of the
returned candidate has been materially affected. He has placed
reliance upon the judgment of the Supreme Court in Karikho Kri Vs.
Nuney Tayang11.
33. Mr. Nankani has submitted that the Supreme Court while
allowing the Appeal of the returned candidate and consequently
allowing the application under Order VII Rule 11 of the CPC held
that in the absence of any pleading in the Election Petition that the
result of the election of the returned candidate was materially
affected by improper acceptance of nomination under Section 100(1)
(d)(i) of the 1951 Act, the Election Petition cannot go to trial. ( Karim
Uddin Barbhuiya Vs. Aminul Haque Laskar12; paragraphs 22 and 23).
34. Mr. Nankani has submitted that where there is an
allegation that candidates other than the returned candidate had not
11 (2024) SCC OnLine SC 519.
12 (2024) SCC OnLine SC 509.
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submitted their Affidavits in a proper format, the Election Petitioner
had to necessarily assert that, the election of the returned candidate
had been materially affected by such acceptance. Non assertion of
that material fact has been held to 'not disclose a cause of action to
call for a trial of Election Petition on merits". ( Shambhu Prasad
Sharma Vs. Charandas Mahant13; paragraph 20).
35. Mr. Nankani has submitted that for the purpose of
invalidating an election under 100(1)(d)(iv) of the 1951 Act, it is
essential for the Election Petitioner to aver by pleading material facts
that the result of the election insofar as it is concerned the returned
candidate has been materially affected. ( Mangani Lal Mandal Vs.
Bishnu Deo Bhandari14 at paragraphs 10 - 12).
36. Mr. Nankani has submitted that upshot of all the relevant
judgments starting with the Judgment in ADR to the Constitutional
Bench Judgment of the Public Interest Foundation (Supra) is that the
sources of the law in relation to disclosures by the candidate are as
under-
13 (2012) 11 SCC 390.
14 (2012) 3 SCC 314.
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(i) Law made by the Parliament as contemplated under Article
102(e) of the Constitution;
(ii) Orders and directions issued by the Election Commission
under Article 324 of the Constitution;
(iii) Directions given by the Constitutional Courts i.e. the
Supreme Court under Article 32 and the High Court under Article
226 of the Constitution.
37. Mr. Nankani has submitted that the Election Rules have
been made by the Central Government in exercise of powers under
Section 169 of the 1951 Act. These Election Rules are therefore, in
the nature of subordinate or delegated legislation.
38. Mr. Nankani has submitted that the Rules made by the
Central Government in exercise of rule making powers under Section
169 of the 1951 Act are amenable to challenge not only if the same
violates the constitutional provisions, but also if the rules go beyond
the rule making powers conferred by the Parliament on its delegatee,
i.e. the Central Government in the present case. He has in this
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context placed reliance upon the Supreme Court judgments in Indian
Express Newspaper (Bombay) Pvt. Ltd. Vs. Union of India 15 and
Cellular Operations' Association of India Vs. Telecom and Regulatory
Authority of India16.
39. Mr. Nankani has submitted that the law made by the
Parliament under Article 102(e) must conform to other constitutional
safeguards. The Election Commission must also act in conformity
with the law made by the Parliament. This legal position has been
laid down in paragraph 71 of Public Interest Foundation (Supra).
40. Mr. Nankani has submitted that a challenge to the law as
contained in Section 33A (1)(ii) was rejected in the PUCL Judgment
(Supra). Form 26, as it stands, even post the 2018 amendment
cannot, therefore, be read wider than what is provided in Section
33A (1)(ii) of the 1951 Act.
41. Mr. Nankani has submitted that the revised and / or
amended Form 26 as changed on 10th October, 2018 does not
enlarge the scope of disclosures as compared to the disclosures
required in Form 26 as amended on 1st August, 2012 or prior
15 (1985) 1 SCC 641.
16 (2016) 7 SCC 703.
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thereto. He has submitted that Sr. No.6 of Form 26, as amended in
2018, must be read in sync and / or harmony with the law laid down
by the Supreme Court as well as the statutory provisions contained in
Section 33A(1)(ii) of the 1951 Act. There is absolutely no reason or
warrant or justification for enlarging the meaning of the disclosure
required under Sr. No.6 of Form 26 as amended in 2018, when there
is no change whatsoever in law either as declared by the Supreme
Court or as enacted by the Parliament.
42. Mr. Nankani has submitted that Form 26 is part of
subordinate legislation and has been referred to in Rule 4-A of the
Election Rules. He has submitted that the Subordinate Legislature
cannot travel beyond the main or the parent legislation. The Election
Rules, including Rule 4A, must be given a meaning which
corresponds to Section 33A (1)(ii). Entry 6 of Form 26, which comes
under Rule 4A, cannot transgress or breach the provisions of Section
33A (1)(ii). Entry 6 of Form 26 must be read to mean only those
cases of past conviction, where there is a sentence of imprisonment of
one year or more, must be disclosed by the candidate. Any other
meaning or interpretation given to Entry 6 of Form 26 would result in
making Entry 6 of Form 26 unconstitutional and violative of not only
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Section 33A (1)(ii) of the 1951 Act, but also the law laid down by the
Supreme Court in ADR Judgment (Supra) and PUCL Judgment
(Supra). He has submitted that the doctrine of reading down is well
known and the Courts have often resorted to reading down the
provisions to avoid the same from being rendered unconstitutional.
He has placed reliance upon the judgments of the Supreme Court in
Bhim Singhji Vs. Union of India 17 at paragraph 17 and Delhi
Transport Corporation Vs. DTC Mazdoor Congress 18 at paragraph
255.
43. Mr. Nankani has submitted that it is settled law that the
Form must invariably yield to the substantive provision of law. The
Form cannot go beyond the provisions of the statute. This has been
held in following judgments:-
(i) Ramchandra Shelat Vs. Pranlal Jayanand Thakkar 19 at
paragraph 15;
(ii) CIT Vs. Tulsyan NEC Ltd.20 at paragraph 20;
(iii) Ghaziabad Zila Sahakarni Bank Ltd. Vs. Addl. Labour
Commissioner21 at paragraph 72.
17 (1981) 1 SCC 166.
18 (1991) Supp (1) SCC 600.
19 (1974) 2 SCC 323.
20 (2011) 2 SCC 1.
21 (2007) 11 SCC 756.
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(iv) Pramod Prabhakar Kulkarni Vs. Balasaheb Desai Sahakari
Sakhar Karkhana Ltd.22 at paragraph 22.
44. Mr. Nankani has submitted that Form 26, as amended in
2018, must be read harmoniously with Section 33A (1)(ii). He has
submitted that this is in view of Section 33A (1)(ii) having received
the imprimatur of the Supreme Court.
45. Mr. Nankani has submitted that there is no breach of
Section 100 and / or Section 123 of the 1951 Act as Respondent No.1
has correctly filed Form 26. Since there was no conviction with
imprisonment of one year or more, there is no violation or breach of
the provisions of Section 100(1)(b) and (d)(i), (ii) and (iv) of the
1951 Act.
46. Mr. Nankani has submitted that Form 26 has been
correctly filed by Respondent No.1 and there being no corrupt
practice committed under Section 100(1)(d)(ii), the question of
corrupt practice as defined in Section 123(2) of the 1951 Act also
does not arise at all.
47. Mr. Nankani has submitted that Section 12 of the
Probation of Offenders Act provides for removal or disqualification
22 (2000) SCC OnLine Bom.875.
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attaching to conviction. It is provided that the offender shall not
suffer disqualification, if any, attaching to a conviction of an offence
under such law. This makes it evident that no person shall suffer any
consequence if probation is granted to such person under the
Probation of Offenders Act. The conviction of the Applicant /
Respondent No.1 by the learned Chief Judicial Magistrate, Thane
vide Order dated 29th February, 2016 will have to be disregarded for
the purpose of any enactment, particularly under the 1951 Act, or the
regulations under which any disqualification is imposed upon
convicted persons. He has submitted that the Supreme Court has
observed that Section 12 of the Probation of Offenders Act evidently
directs that the offender shall not suffer disqualification attaching to
a conviction. He has placed reliance upon the judgment of the
Supreme Court in Union of India Vs. Bakshi Ram23 at paragraph 13.
48. Mr. Nankani has submitted that the present Election
Petition has been filed with malafide intention to gain political
mileage by the Petitioner. He has submitted that the Petitioner being
aware that the Applicant / Respondent No.1 is not liable to disclose
the information of conviction where Applicant / Respondent No.1
23 (1990) 2 SCC 426.
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was not sentenced with any imprisonment willfully chose to not raise
objection or file any representation till lapse of 43 days after
announcing the results of election. He has submitted that the present
Election Petition filed by the Petitioner is sheer waste of precious
judicial time, which is evident from the fact that the Petitioner even
after having the knowledge about conviction of the answering
Respondent chose not to take any action by raising objection /
representation to the returning officer under Section 36 of the 1951
Act.
49. Mr. Nankani has submitted that the Applicant has made
out a very good case on merits which entitles the Respondent No.1 to
the reliefs qua dismissal of the present Election Petition based on
preliminary objections raised by the Applicant / Respondent No.1
with respect to maintainability of the Petition on the grounds inter
alia non compliance of the mandatory requisitions contained in the
1951 Act. He has submitted that the balance of convenience lies in
favour of the Applicant / Respondent No.1 and against the Petitioner.
He has accordingly submitted that the present Application under
Order VII Rule 11 of the CPC should be allowed in terms of the
prayer clauses as set out therein and Election Petition be rejected.
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50. Mr. Darius Khambata, the learned Senior Counsel
appearing for the Petitioner has submitted that the present
Applications filed by Respondent Nos.1 and 14 under Clause(a) and
(d) of the Order VII Rule 11 of the CPC does not plead nor
demonstrate any incurable defect in the above Election Petition to
reject if at the threshold.
51. Mr. Khambata has submitted that the scope of inquiry of
this Court in an application under Order VII Rule 11 is limited. He
has placed reliance upon the judgment of the Supreme Court in T.
Arivandandam Vs. T. V. Satyapal & Anr. 24 at paragraph 5. The Petition
can be rejected on a meaningful, not formal, reading of the Plaint if it
is found to be manifestly vexatious and meritless.
52. Mr. Khambata has further placed reliance upon F.A. Sapa
Vs. Union of India25 at paragraph 19 where the Supreme Court held
that under election law, an Election Petition can be dismissed under
Clause (a) of Order VII Rule 11 of the CPC only for an incurable
defect i.e. for non-disclosure of material facts.
53. Mr. Khambata has further placed reliance upon Roop
24 (1977) 4 SCC 467.
25 (1991) 3 SCC 375.
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Lala Sathi Vs/. Nachhattar Singh Gill26 at paragraph 24 where the
Supreme Court has held that the application must proceed on a
demurrer and accept all averments in the Petition.
54. Mr. Khambata has submitted that in order to satisfy
Clause (d) of Order VII Rule 11 of the CPC, this Application ought to
demonstrate a bar by law on the face of the Petition. He has placed
reliance upon Pawan Kumar Vs. Babulal27 at paragraph 13. He has
submitted that this cannot arise in case of disputed questions of law
as has been held by the Supreme Court in Popat and Kotecha
Property Vs. SBI Staff Association28 at paragraph 10. Accordingly, the
present Election Petition faces no such bar in law.
55. Mr. Khambata has submitted that it has been held by the
Supreme Court in Bhim Rao Baswanath Rao Patil Vs. K. Madan
Mohan Rao & Ors.29 at paragraph 29, that in an Election Petition the
legal effect of non complying with statutory regulations on
disclosures under the 1951 Act cannot be gone into at the stage of
Order VII Rule 11 of the CPC.
26 (1982) 3 SCC 487.
27 (2019) 4 SCC 367.
28 (2005) 7 SCC 510.
29 2023 SCC OnLine SC 871.
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56. Mr. Khambata has submitted that the standard of
disclosure pertaining to criminal antecedents under the 1951 Act
cannot be examined at this stage. It is only whether the Petition is
manifestly meritless ought to be considered. It is submitted that the
Petition sets out a clear cause of action to challenge Respondent
No.1's election under the 1951 Act.
57. Mr. Khambata has submitted that the Petition alleges that
Form 26 Affidavit as referred to in Rule 4A of the 1961 Rules and
applicable to the 2024 Lok Sabha Elections wherein the Petitioner
and Respondent No.1 were contesting candidates from the 25 -
Thane Parliamentary Constituency was not duly complied with by
Respondent No.1, which under Section 100 of the 1951 Act voids his
election as the returned candidate from the Thane Constituency.
58. Mr. Khambata has submitted that the Petition complies
with all required pleadings under the Act. He has placed reliance
upon Section 83(1) which lays down the requirements of contents of
an Election Petition, requiring the pleadings under the sub-sections
thereto. Further, as per the Proviso to Section 83(1), in case the
Petition alleges a corrupt practice, the Petition shall also be
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accompanied by an Affidavit in the prescribed form i.e. as per Rule
94-A in the format of Form 25. He has submitted that the Petition
challenges the Respondent No.1's election under Section 100(1)(b)
read with Section 123(2) and / or Section 100(1)(d)(i) and / or
Section 100(1)(d)(ii) and / or Section 100(1)(d)(iv) of the 1951 Act.
He has submitted that the Petition complies with all the requirements
of Section 83 (1) of the 1951 Act.
59. Mr. Khambata has submitted that the Petition pleads a
concise statement of material facts complying with Section 83(1)(a)
of the 1951 Act. He has placed reliance upon the material facts which
have been stated in paragraph 5, page 11 of the Petition. He has
submitted that from the averments in the Petition it is clear that the
Petition sets out an elaborate statement of facts including particulars
not mandated under the Act. Such particulars have been pleaded out
of abundant caution and to aid Respondent No.1 in meeting the case
brought against him. He has submitted that the grounds set out in
inter alia paragraphs 5 and 9 of the application alleging that the
Petition does not plead material facts is wholly unfounded and ought
to be dismissed by this Court.
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60. Mr. Khambata has submitted that the Petition complies
with the requirements of Section 83(1)(b) of the Act by pleading a
corrupt practice under Section 100(1)(b) and 100(1)(d)(ii) of the
1951 Act. The particulars of defining the corrupt practice, date of
corrupt practice, name of person committing corrupt practice have
been pleaded in the Election Petition. He has submitted that there is
an express pleading that the Respondent No.1 filed a false Form 26
Affidavit suppressing his criminal antecedents which amounts to
undue influence under Section 123(2) of the 1951 Act which is
defined as the "said corrupt practice".
61. Mr. Khambata has submitted that the Petition also seeks
to set aside the Respondent No.1's election under Section 100(1)(d)
(ii) of the 1951 Act on the basis of members of Respondent No.1's
election team committing / abetting in the said corrupt practice who
were present during the scrutiny of Respondent No.1's false Form 26
Affidavit.
62. Mr. Khambata has submitted that the Petition fulfils all
requirements to bring a case under Section 100(1)(d)(i) of the 1951
Act.
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63. Mr. Khamabta has submitted that the Election Petition
also fulfills all requirements to bring a case under Section 100(1)(d)
(iv) of the 1951 Act.
64. Mr. Khambata has submitted that the Election Petition
sets out a clear cause of action challenging Respondent No.1's
election. He has submitted that the Petitioner alleges that Form 26
Affidavit was not duly complied with by Respondent No.1, for which
his election is void under certain grounds under Section 100 of the
1951 Act. He has submitted that Clause 6 of the Form 26 Affidavit
required candidates to disclose all past convictions. However, the
Respondent No.1 inspite of being convicted under Section 147, 143,
323 and Section 506 read with Section 149 of the Indian Penal Code
by the Chief Judicial Magistrate, Thane vide its Order dated 29th
February, 2016 and Appeal against the same being rejected by the
Sessions Court, Thane on 9th February, 2017, did not disclose this in
his Form 26 Affidavit. He has submitted that the Petition alleges that
the Respondent No.1 made a false statement declaring that he has
not been convicted of any criminal offence.
65. Mr. Khambata has submitted that the Supreme Court in
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Krishnamoorthy (Supra) has held that if the requisite information
relating to criminal antecedents is not given by a candidate, this
suppression is undeniably undue influence under Section 123(2) of
the 1951 Act, which amounts to corrupt practice. Once corrupt
practice is established, the election has to be declared void. No other
condition is attached to it. He has submitted that the Petition is
squarely covered by this decision, as well as decisions wherein this
logic has been extended and applied to non-disclosure of other
information i.e. assets and sources of income, namely, Lok Prahari
(Supra). He has accordingly submitted that the Petition discloses a
clear cause of action.
66. Mr. Khambata has submitted that the Petition pleads the
material effect of Respondent No.1's suppression on the election of
the returned candidate i.e. Respondent No.1. He has submitted that it
has been held that this pleading is not required and for which he has
placed reliance upon the judgment of this Court in Arun Dattatray
Sawant Vs. Kisan Shankar Kathore, Election Petition No.10 of 2004
decided on 16th August, 2007, Bom. which holds, that the corollary
of the finding that the nomination of the returned candidate has been
improperly accepted on the account of an invalid Affidavit, is that his
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election has been materially affected. Therefore, there is no
requirement to plead or prove that the returned candidate's election
has been materially affected. The Appeal against this judgment was
dismissed by the Supreme Court in Kisan Shankar Kathore Vs. Arun
Dattatray Sawant & Ors. (2014) 14 SCC 162. Further, the Supreme
Court in Amrit Lal Ambalal Patel Vs. Himathbhai Gomanbhai Patel &
Anr. 1968 SCC OnLine SC 262 held that the consequence of improper
acceptance of the nomination of the returned candidate is that the
result of the election was materially affected.
67. Mr. Khambata has submitted that under Section 100(1)
(b) of the 1951 Act, the corrupt practice committed by the returned
candidate, does not require material effect on the election of the
returned candidate to be shown. In the context of non-disclosure of
criminal antecedents amounting to a corrupt practice, the Supreme
Court has held in Krishnamoorthy (Supra) that the question whether
the election has been material affected or not will not arise. Hence,
the Petition did not need to plead material effect on the election.
68. Mr. Khambata has submitted that inspite of the Petition
not requiring to plead material effect on the returned candidate,
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there is a pleading in conformity with Section 100(i) (d) (ii) of the
1951 Act that by the corrupt practice committed in the interest of the
returned candidate, the entire voter demographic of the Thane
constituency has been misinformed about Respondent No.1's criminal
record thereby affecting their right to make an informed decision.
69. Mr. Khambata has submitted that there is pleading on
the material effect on the election of Respondent No.1 by stating that
Respondent No.1's Form 26 Affidavit suppresses information leading
to the misinformation of voters. The Respondent No.1's suppression
of his criminal antecedents is a direct / indirect interference with
right to vote of the electorate as they exercised this right with a
misinformed mind. He has in this context placed reliance upon
Section 100(1)(d)(iv) and has submitted that it has been violated
thereby.
70. Mr. Khambata has submitted that the contention of
Respondent No.1 that the scope of disclosure laid down by Section
33A has never been challenged is irrelevant. He has submitted that
the text of Section 33A of the Act contains two portions, (i) A
substantive portion in Section 33A (1) stating, "A candidate shall,
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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..." and (ii) The indicative portion requiring specific
disclosure as per Section 33A (1)(i) and (ii) of the Act. He has
submitted that while Section 33A (1)(i) and (ii) lays down specific
requirements, the broad ambit of Section 33A (1) cannot be
restricted by it.
71. Mr. Khambata has submitted that Form 26 Affidavit is in
consonance with the 1951 Act and Rules, therefore, Respondent
No.1's contention that Form 26 Affidavit cannot travel beyond 1951
Act is misconceived.
72. Mr. Khambata has submitted that the disclosure of
criminal antecedents are not confined to Section 33A (1)(i) and (ii)
of the 1951 Act. He has in this context placed reliance upon the
judgment of the Supreme Court in ADR Judgment (Supra) which has
directed that every candidate ought to be called to make substantive
disclosures covering his / her criminal antecedents (not fettered by
any thresholds of imprisonment or fines, as even acquittals had to be
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disclosed) income, liabilities and education qualifications. He has
submitted that these directions were carried out by the Election
Commission of India by prescribing an Affidavit dated 28th June,
2008 requiring candidates to disclose details of not only past
convictions but also acquittal or discharge cases.
73. Mr. Khambata has submitted that the Supreme Court in
PUCL (Supra) while recognizing the dynamic nature of citizen's right
to information on candidates, observed that there is no good reason
for which disclosing pending cases wherein cognizance has been
taken was not required by Section 33A (1)(i). It observed the need
for additional information to be required from candidates in the
future and held Section 33B to be unconstitutional for placing a
blanket ban on the same. It also noted that Section 33B was
unconstitutional for restricting disclosures in the ambit of Section
33A, which concerned criminal antecedents alone, as it ignored a
crucial aspect of disclosure on income, assets and liabilities.
74. Mr. Khambata has submitted that the Election
Commission of India under Article 324 powers issued a new format
of an Affidavit dated 27th March, 2003 stating that all candidates to
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disclose details of pending offences wherein cognizance has been
taken as well as to disclose information on assets and liabilities. He
has submitted that this shows even the Election Commission of India
at the helm of governing elections, interpreted that disclosure
requirements under the 1951 Act could not be confined to merely
Section 33A (1)(i) and (ii).
75. Mr. Khambata has submitted that in 2012 when Central
Government felt it necessary to amalgamate the two formats i.e.
2002 Form 26 Affidavit and Election Commission of India Affidavit
dated 27th March, 2003, it introduced a new format which mandated
disclosure of pending offences for those offences which are not only
punishable with imprisonment of two year or more and wherein the
charges have been framed but also pending offences where
cognizance has been taken, irrespective of the punishment. It further
required disclosure from all candidates of their income, assets,
liabilities etc. He has submitted that these entries thus go beyond the
express entries of Section 33A (1)(i) and (ii).
76. Mr. Khambata has submitted that the Supreme Court in
Lok prahari (Supra) recognized the fundamental right of voters to
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know while observing that candidates have no fundamental right to
contest. The Supreme Court observed that since there cannot be an
embargo placed on the voter's right to know, even stipulations laid
down by Section 33A and Form 26 are inexhaustive and no legal bar
can be placed on the Central Government rule making power to
make additional information available to the public. Following this
interpretation, 2012 Form 26 Affidavit was amended, as the Central
Government introduced the following changes to the disclosures on
pending and convicted cases on 10th October, 2018: (i) Disclosure of
all pending cases, instead of those wherein charges have been framed
/ cognizance has been taken / imprisonment term under Clause 5;
(ii) Disclosure of all convicted cases irrespective of punishment /
sentence under Clause 6.
77. Mr. Khambata has submitted that Form 26 Affidavit go
beyond the express requirements of Section 33A (1)(i) and (ii) but
are nevertheless required to be filled out by all candidates.
78. Mr. Khambata has submitted that the 2012 Form 26
Affidavit has been upheld by the Supreme Court in Krishnamoorthy
(Supra). It has been held that the amended Form 26 Affidavit is in
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consonance with Section 33A of the 1951 Act as information given as
per Section 33A (1) is in addition to the information furnished under
Section 33A (1)(i) and (ii) of the 1951 Act.
79. Mr. Khambata has submitted that it is completely
erroneous for Respondent No.1 to contend that disclosures on past
convictions ought to be only as per Section 33A (1)(i) and (ii)
requirements and not as the Form 26 Affidavit had stipulated.
80. Mr. Khambata has submitted that the view in
Krishnamoorthy (Supra) was upheld by a three bench judgment of
the Supreme Court in Satish Ukey (Supra) which dealt with the
question squarely covering the primary question before this Court. It
considered whether the information required by 2012 Form 26
Affidavit has to be confined to requirements under Section 33A (1)
(i) alone. He has submitted that the Supreme Court upheld the
additional requirement imposed by Clause 5(ii) of the 2012 Form 26
Affidavit on the basis of a cumulative reading of Section 33A, Rule 4A
and the 2012 Form 26 Affidavit. He has submitted that the ratio of
Satish Ukey (Supra) that disclosure requirements are not limited to
the scope of Section 33A (1)(i) and (ii) is squarely applicable to the
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present case. The present case concerns a change in disclosure
requirements of merely another type i.e. from the 2012 Form 26
Affidavit requiring disclosure of past convictions wherein the
candidate has been sentenced to imprisonment for one year, as
compared to the amendment brought on 10th October, 2018
requiring disclosure of all past convictions.
81. Mr. Khambata has submitted that Respondent No.1's
attempt to distinguish Satish Ukey (Supra) is misconceived and
untenable. He has submitted that the Supreme Court expressly
considered convictions in Satish Ukey (Supra) holding that
information is not confined to Section 33A (1)(i) and (ii), thereby
prescribing a 'cumulative reading' of Section 33A, Rule 4A, Form 26
and letters issued by the Election Commission of India.
82. Mr. Khamabta has submitted that the 2012 Form 26
Affidavit required candidates to disclose information on pending
cases, wherein the cognizance has been taken irrespective of the
quantum of punishment. He has submitted that the 2012 Form 26
Affidavit in addition to Section 33A (1)(i) and (ii) of the 1951 Act
also requires candidates to disclose pending offences wherein the
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cognizance has been taken. Thus, the 2012 Form 26 Affidavit as
interpreted by the Supreme Court requires additional disclosures
beyond offences punished with imprisonment. Similarly, the 2018
Form 26 Affidavit requires candidates to disclose information on all
criminal convictions, in addition to offences punished with
imprisonment of one year or more. He has submitted that the ratio in
Satish Ukey (Supra) i.e. information required under Section 33A of
the 1951 Act includes not only information under Section 33A (1)(i)
and (ii) but also information under the Act, Rules and Form 26 is
clearly applicable to the present case. Further, it is also a binding
interpretation on the 2018 Form 26 Affidavit, for being similar to the
2012 Form 26 Affidavit in terms of requiring disclosures in addition
to Section 33A (1)(i) and (ii) of 1951 Act.
83. Mr. Khambata has submitted that the judgment of the
Supreme Court in Satish Ukey (Supra) has made no reference to
PUCL (Supra) or ADR (Supra) and instead refers to the view taken by
the Supreme Court in Krishnamoorthy (Supra) holding that Section
33A envisages information to be given in accordance with the Rules,
this is in addition to the information to be provided as per Section
33A (1)(i) and (ii). He has submitted that the interpretation of
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Respondent No. 1 on the judgment of the Supreme Court in Satish
Ukey (Supra) that it considers only pending cases wherein
cognizance has been taken is wholly misconceived. He has referred to
the question framed in paragraph 17 of the said judgment and the
answer given therein that information is not confined to Section 33A
(1) (i) and (ii) and prescribes 'cumulative reading' of Section 33A,
Rule 4A, Form 26 and letters issued by the Election Commission of
India. He has submitted that the Supreme Court considers the
meaning of the term 'information' under Section 33A opening and
substantive part and not merely Section 33A (1) (i).
84. Mr. Khambata has submitted that the 2018 amendment
has neither been struck down nor challenged. The 2018 amendment
has been in force for seven years since and was further amended in
2019 wherein the requirement on disclosures of criminal cases
remained unchanged. Further, the Respondent No.1 has not
challenged the constitutionality of the 2018 amendment or Form 26.
85. Mr. Khambata has submitted that challenging the validity
or legal effect of the 2018 amendment or Form 26 is not a ground
under Order VII Rule 11 of the CPC and thereby immaterial to the
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present case. He has submitted that the Petitioner's case is in line
with the judgment in ADR (Supra) wherein the Supreme Court
directed the Election Commission of India to require candidates to
disclose not only information on all convicted cases but also
acquittals and discharge cases. The Petitioner's case is also in line
with PUCL (Supra) where although the Supreme Court found that
Section 33A (1)(ii) was adequate, the ratio of the judgment was to
strike down Section 33B of the 1951 Act as it imposed a blanket ban
on requiring information from candidates other than that spelt out in
the enactment. He has submitted that Respondent No.1's submission
to restrict disclosure on conviction only to Section 33A (1)(ii) i.e.
convictions punished with imprisonment of one year or more, despite
the 2018 amendment requiring information on all cases of
conviction, goes against the ratio of PUCL (Supra) of the Supreme
Court.
86. Mr. Khambtata has submitted that the Respondent No.1's
contention that disclosure on pending offences and conviction are
subject to distinct judicial treatment is flawed. He has submitted that
the sequitur to Respondent No.1's contention is untenable for
submitting that pending offences wherein only charges have been
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framed / cognizance has been taken requires higher disclosure as
compared to cases resulting in a conviction. A case resulting in a
conviction is a final finding of criminal guilt unlike at the stage
wherein cognizance is taken. This goes against Respondent No.1's
submission that politicians often face false criminal cases due to party
rivalry therefore, disclosure on criminal antecedents ought to be
qualified.
87. Mr. Khambata has submitted that the Respondent No.1's
contention that disclosure on convictions without imprisonment has
no judicial sanction is erroneous in law. He has submitted that the
Supreme Court in ADR (Supra) had directed the Election
Commission of India to require candidates to disclose information on
all convictions, including cases of acquittals / discharge. Further, the
Supreme Court in Lok Prahari (Supra) held that stipulations laid
down by Section 33A are not exhaustive. This judgment led to the
2018 Form 26 Affidavit. Therefore, the requirement of disclosure of
all convictions has judicial sanction.
88. Mr. Khambata has submitted that the disclosure
requirements under Section 33A of the 1951 Act and Form 26
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Affidavit are not exhaustive. He has submitted that there cannot be
an embargo placed on the voter's right to know, even stipulations laid
down by Section 33A and Form 26 have been held to be
inexhaustive. He has placed reliance on Lok Prahari (Supra) in this
context.
89. Mr. Khambata has submitted that the Petitioner has not
brought a case of disqualification but of setting aside the Respondent
No.1's election under Section 100 of the 1951 Act which incurs a
distinct legal consequence under the Act. He has submitted that the
Respondent No.1's reliance on Section 12 of the Probation of
Offenders Act, 1958 is accordingly misplaced. He has submitted that
there is a difference in law between corrupt practice and
disqualification. This has been held by the Supreme Court in
Krishnamoorthy (Supra) at paragraph 91. Further, the Supreme
Court in Raja Ram Pal Vs. Hon'ble Speaker, Lok Sabha 30 at paragraph
144 highlighted the difference between the terms 'expulsion' and
'disqualification' observing that 'disqualification' operates to prevent
a candidate from re-election, but expulsion places no such bar on re-
election and can only terminate an elected candidate's term.
30 (2007) 3 SCC 184
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90. Mr. Khambata has submitted that Section 12 of the
Probation of Offenders Act, 1958 is inapplicable in the present case.
Section 12 is only applicable to statutory disqualification. The
Petitioner's case under Section 100 of the Act, i.e. grounds to set
aside an election does not concern a statutory disqualification under
the 1951 Act, but legal consequences of non-disclosure of criminal
antecedents which can set aside Respondent No.1's election which
can only be a result of a trial conducted by this Court.
91. Mr. Khambata has submitted that without prejudice to
the above submissions, the Petitioner was unable to raise an
objection at the time of scrutiny as he did not have access to
Respondent No.1's nomination forms at the time of scrutiny on 4th
May, 2024. However, the Petitioner had no mandatory obligation
under any provision of the Act, direction, or rules to raise an
objection before the returning officer. There is nothing which
prevents the Petitioner from raising these objections in the present
Petition and has no bearing on the Petitioner's right to bring an
Election Petition under Section 81 of the 1951 Act.
92. Mr. Khambata has submitted that the Respondent No.1's
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suppression of his past conviction has affected the democratic will of
the voters in the Thane Constituency. This affects their right to make
a free and informed choice while voting. Such a suppression has been
recognized to mean undue influence under Section 123(2) of the
1951 Act, amounting to defrauding the voter demographic in
Krishnamoorthy (Supra).
93. Mr. Khambata has submitted that the Respondent No.1's
application demonstrates full knowledge of the case brought against
him for which the Petition passes the test of pleadings.
94. Mr. Khambata has submitted that the grounds in the
application are not grounds demonstrating a lack of cause of action
in the Petition or incurable infirmities in the Petition. Instead, the
above mentioned grounds are defences taken by Respondent No.1
which would be open for him to take even at the stage of trial. This
demonstrates that Respondent No.1 understands the case as brought
against him by the Petition and the issues at the stage of trial. He has
submitted that the Petition is complete and cannot be dismissed in
limine under Order VII Rule 11 of the CPC. He has submitted that for
the above reasons, it is clear that the Application satisfies no grounds
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under Order VII Rule 11 of the CPC and the Application ought to be
dismissed by this Court with costs.
95. Having considered the submissions in the present
Application under Order VII Rule 11, it would be necessary to
determine whether the Election Petition discloses a cause of action.
The cause of action as pleaded by the Petitioner is that the
Respondent No.1 by failing to disclose his conviction of a criminal
offence has rendered his election liable to be set aside. This is in the
context of Sr. No.6 From 26 as amended vide Notification No. SO
5196 (E) dated 10th October, 2018. Sr. No.6(i) of Form 26, reads as:
"I declare that I have not been convicted for in any criminal offence."
The Respondent No.1 has put a tick mark against Sr. No.6 (i) and
stated "Not Applicable" against Sr. No6(ii), which requires details of
cases in which the candidate has been convicted for the offences as
required thereunder.
96. In order to consider whether the Election Petition at all
discloses a cause of action, it is necessary to consider whether the
Respondent No.1 was at all required to make the disclosure in terms
of Sr. No.6 (i) of Form 26 and / or whether the said Sr. No.6 (i) of
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Form 26 went beyond the purview of the 1951 Act read with the
orders and directions issued by the Election Commission of India
under Article 324 of the Constitution of India and the directions
given by the Supreme Court under Section 32 of the Constitution.
97. Considering the judgments of the Supreme Court which
have been relied upon by the Petitioner as well as Respondent No.1
during their submissions, it is apparent that the sources of Election
Law in relation to disclosures to be made by a candidate are as
under:-
(i) the law made by Parliament as contemplated under Article
102E of the Constitution;
(ii) Orders and directions issued by the Election Commission
under Article 324 of the Constitution;
(iii) Directions given by the Constitutional Courts i.e. the
Supreme Court under Article 32 and the High Court under Article
226 of the Constitution.
98. In PUCL (Supra), the Supreme Court had considered the
constitution validity of Section 33A and 33B of the 1951 Act. It is
pertinent to refer to the opinion of Justice Reddi who was one of the
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three Judges of the Supreme Court who delivered three separate
opinions. In paragraph 116, Justice Reddi expressly upholds the
validity of Section 33A (1)(ii) of the 1951 Act by holding as under:
"116. Coming to clause (ii) of Section 33-A(1),
Parliament broadly followed the pattern shown by
the Court itself. This Court thought it fit to draw a
line between major/serious offences and
minor/non-serious offences while giving Direction
2 (vide para 48). If so, the legislative thinking that
this distinction should also hold good in regard to
past cases cannot be faulted on the ground that the
said clause fails to provide adequate information
about the candidate. If Parliament felt that the
convictions and sentences of the long past relating
to petty/non-serious offences need not be made
available to the electorate, it cannot be definitely
said that the valuable right to information becomes
a casualty. Very often, such offences by and large
may not involve moral turpitude. It is not
uncommon, as one of the learned Senior Counsel
pointed out that the political personalities are
prosecuted for politically related activities such as
holding demonstrations and visited with the
punishment of fine or short imprisonment.
Information regarding such instances may not be of
real importance to the electorate in judging the
worth of the relative merits of the candidates. At
any rate, it is a matter of perception and balancing
of various factors, as observed supra. The
legislative judgment cannot be faulted merely for
the reason that the pro tempore directions of this
Court have not been scrupulously followed. As
regards acquittals, it is reasonable to take the view
that such information will not be of much
relevance inasmuch as acquittal prima facie
implied that the accused is not connected with the
crime or the prosecution has no legs to stand. It is
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not reasonable to expect that from the factum of
prosecution resulting in acquittal, the
voters/citizens would be able to judge the
candidate better. On the other hand, such
information in general has the potential to send
misleading signals about the honesty and integrity
of the candidate."
99. The conclusions of Justice Reddi have been recorded
in paragraph 123 of the said judgment and the relevant
conclusions are as under:
"(4) The Court has to take a holistic view and adopt
a balanced approach in examining the legislation
providing for right to information and laying down
the parameters of that right.
(6) The right to information provided for by
Parliament under Section 33-A in regard to the
pending criminal cases and past involvement in such
cases is reasonably adequate to safeguard the right
to information vested in the voter/citizen. However,
there is no good reason for excluding the pending
cases in which cognizance has been taken by the
Court from the ambit of disclosure.
(9) The Election Commission has to issue revised
instructions to ensure implementation of Section 33-
A subject to what is laid down in this judgment
regarding the cases in which cognizance has been
taken. The Election Commission's orders related to
disclosure of assets and liabilities will still hold good
and continue to be operative. However, Direction 4
of para 14 insofar as verification of nomination
paper on the ground of furnishing wrong
information or suppressing material information
should not be enforced."
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100. Justice Dharmadhikari has agreed with the
conclusion of Justice Reddi recorded in the aforesaid paragraph
123(6) of the judgment. Thus, PUCL (Supra) has expressly
upheld the constitutional validity of Section 33A (1)(ii) of the
1951 Act. In conclusion at paragraph 123 (6), Justice Reddi held
that insofar as Section 33A (1)(i) of the 1951 Act is concerned,
there is no good reason for excluding the pending criminal cases
in which cognizance has been taken by the Court from the ambit
of disclosure. The Supreme Court although keeping the
disclosure relating to past conviction under Section 33A (1)(ii)
intact, has included cognizance taken by the Court within the
ambit of disclosures of pending cases required as the Right to
Information provided under Section 33A (1)(i).
101. The Petitioner has placed reliance on the first
judgment of the Supreme Court on the present subject, viz. ADR
(Supra). The Supreme Court had directed the Election
Commission of India to call for information on Affidavit by
issuing necessary order in exercise of its power under Article 324
of the Constitution from each candidate seeking election to
Parliament or a State Legislature as a necessary part of the
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nomination paper, and which inter alia included whether the
candidate is convicted / acquitted /discharged of any criminal
offence in the past - if any, whether he is punished with
imprisonment or fine. This is in support of his contention that
the disclosure required under the Sr. No.6 of Form 26 as
amended vide Notification dated 10th October, 2018 is in
conformity with the said judgment.
102. The aforesaid contention of the Petitioner is in my
view misconceived. This upon considering that the additional
requirement of imprisonment in such cases of past conviction of
an offence has not been dispensed with. Further, after the ADR
judgment, Sections 33A and 33B were inserted on 24th August,
2002 vide the issuance of the Representation of People
(Amendment) Ordinance, 2002. This Ordinance was replaced by
the Representation of the People (Third Amendment) Act, 2002
on 28th December, 2002. Under Section 33A (1)(ii) the
disclosure insofar as past convictions are concerned was
provided. The candidate was required to disclose those offences
(other than those under Section 8), where the candidate was
convicted and sentenced to imprisonment for one year or more.
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This provision has as aforementioned been upheld by the
Supreme Court in PUCL (Supra).
103. Subsequently, by merger of the two Affidavits i.e.
Affidavit prescribed by the Central Government and Affidavit
prescribed by the Election Commission into one Form 26 as
prescribed by Central Government under Rule 4A of the Election
Rules, the Form 26 insofar as past convictions are concerned was
brought in conformity with Section 33A (1) (ii) of the 1951 Act.
Thus, there had been no additional requirement under Section
33A (1)(ii) which was imposed either by the Parliament as
contemplated under Article 102 (e) of the Constitution and / or
by the Orders and directions issued by the Election Commission
under Article 324 of the Constitution; and / or by the directions
given by the Constitutional Courts i.e., the Supreme Court under
Article 32 and the High Court under Article 226 of the
Constitution.
104. The judgment in PUCL (Supra) has thereafter held
the field. The subsequent judgments of the Supreme Court in
Krishnamoorthy (Supra), Lok Prahari (Supra); Public Interest
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Foundation (Supra) and Satish Ukey (Supra) have in my
considered view not diluted the ratio of the Supreme Court in
PUCL (Supra) i.e. in the context of the requirement of disclosure
under Section 33A (1)(ii). The judgment in Lok Prahari (Supra),
was concerned with the assets and source of income of the
candidates required to be disclosed. Whereas the other
judgments concerned pending criminal cases. Thus, the
observations of the Supreme Court in these cases have to be read
in the light of those facts decided therein which concerned either
pending criminal cases and / or assets and sources of income
required to be disclosed by the candidate.
105. I further find much merit in the submission on
behalf of the Respondent No.1 that the subordinate legislature
cannot travel beyond the main or the parent legislation. The
Election Rules, including Rule 4A, must be given a meaning
which must correspond to Section 33A (1)(ii). Further, Entry 6
of Form 26 as amended in 2018, which comes under Rule 4A,
cannot transgress or breach the provisions of Section 33A (1)(ii).
Accordingly, it must be read down to mean only those cases of
past conviction, where there is a sentence of imprisonment of
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one year or more and which must be disclosed by the candidate.
Any other meaning or interpretation given to Entry 6 of Form 26
would result in making Entry 6 of Form 26 unconstitutional and
violative of not only Section 33A (1)(ii) of the 1951 Act, but also
the law laid down by the Supreme Court in PUCL (Supra). The
judgments relied upon by the Respondent No.1 in this context
are apposite.
106. It is settled law that a Form must invariably yield to
the substantive provision of law. Thus, in the present case Form
26 must yield to Section 33A (1)(ii) of the 1951 Act. The
judgments relied upon by the Respondent No.1 on the Form not
going beyond the provisions of the statute are apposite. I do not
find merit in the submission of the Petitioner that Section 33
A(1), which provides that "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..." is required to be given a meaning beyond that
provided in Section 33A (1) (ii) of the 1951 Act. This would run
contrary to the judgment of the Supreme Court in PUCL (Supra),
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which has upheld the law made by Parliament under Article
102(e) of the Constitution i.e. Section 33 A (1)(ii) of the 1951
Act.
107. In view thereof, the Respondent No.1 was not
required to disclose his conviction of a criminal offence,
particularly where the conviction had not resulted in
imprisonment of one year or more. The Election Petition
accordingly fails to disclose a cause of action. The Election
Petition would suffer from an incurable defect and is barred by
law on the face of the Petition. This having considered that the
Petitioner's cause of action being failure on the part of the
Respondent No.1 to disclose that he has been convicted of a
criminal offence.
108. The contention of the Petitioner that the present
Petition complies with all required pleadings under the 1951 Act
would be irrelevant, particularly when the Election Petition is
itself not maintainable on the ground that it fails to disclose a
cause of action.
109. I also do not find merit in the submission on behalf
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of the Petitioner that it is always open for the Respondent No.1
to take as defences at the stage of trial, the grounds raised in the
present Applications. These grounds i.e. lack of cause of action
and / or incurable infirmities can be raised in an Application
under Order VII Rule 11 for rejection of Petition as given such
grounds it would be an exercise in futility to allow the parties to
go to trial. I am of the considered view that the Respondent No.1
has made out a case for dismissal of the Election Petition under
Order VII Rule 11. The balance of convenience also lies in favour
of the Respondent No.1 and against the Petitioner, considering
that Respondent No.1 is the successful candidate in the elections.
Thus, the present Applications under Order VII Rule 11 of the
CPC are required to be allowed and the Election Petition
rejected.
110. Accordingly, the Application (L) No.30947 of 2024
and Application (L) No.31834 of 2024 are allowed and the
Election Petition is rejected on the ground that it fails to disclose
any cause of action.
111. The Election Petition is disposed of in the above
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terms.
112. The Applications, if any, which are pending in the
Election Petition do not survive and are disposed of accordingly.
[ R.I. CHAGLA J. ]
