Delhi High Court
Ashok Shankarrao Chavan vs Madhavrao Kinhalkar & Ors. on 30 September, 2011
Author: Dipak Misra,Chief Justice
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 3rd August, 2011
% Judgment pronounced on: 30th September, 2011
+ WRIT PETITION (CIVIL) No. 2511/2011
Ashok Shankarrao Chavan ..... Petitioner
Through: Dr.A.M. Singhvi, Sr.Adv. with
Mr.Abhimanyu Bhandari, Mr.Anubhav
Singhvi & Mr.Samanvya Dhar Dwivedi,
Advs.
versus
Madhavrao Kinhalkar and ors. ..... Respondents
Through: Mr.K.K. Venugopal, Sr.Adv. with Mr.Dilip
Annasaheb Taur, Adv. for Resp. 1
Mr.Saurabh Shyam Shamshery &
Mr.Bhupender Yadav, Advs. for Resp. 2&3
Mr.P.R. Chopra, Adv. for Resp.4.
Mr.A.S. Chandhiok, ASG with Ms.Sonia
Sharma, Mr.Mirza Aslam Beg, Mr.Ritesh
Kumar, Mr.Piyush Sanghi and Mr.Sumit
Goyal, Advs. for Resp.-5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
WP (C) No.2511/2011 page 1 of 18
DIPAK MISRA, CJ
Invoking the jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India, the petitioner has called in question the legal substantiality of
the order dated 2nd April, 2001 passed by the Election Commission of India (for
short „the Commission‟) wherein the Commission has expressed the view that it
has jurisdiction under Section 10A of the Representation of People Act, 1951 (for
brevity „the 1951 Act‟) to embark upon the issue of alleged incorrectness or falsity
of the return of election expenses maintained by the respondent, a candidate in
election, under Section 77(1) and 77(2) lodged by him in exercise of power under
Section 78 of the 1951 Act.
2. As a pure question of law arises, we shall refer in brief to the facts of the
case. The petitioner was a returned candidate at general election to the Maharashtra
Legislative Assembly held in September-October, 2009 from 85, Bhokar Assembly
constituency and at that point of time he was the Chief Minister of Maharashtra.
Certain complaints were filed before the Commission stating, inter alia, that the
account submitted by the petitioner is not correct and there should be an enquiry
against him under Section 10A of the 1951 Act. After notice, the present petitioner
entered contest and raised a preliminary issue with regard to the maintainability of
the nature of complaints before the Commission on the foundation that the
WP (C) No.2511/2011 page 2 of 18
Commission has no jurisdiction to go into the truthfulness or falsity of the
expenditure. The Commission thought it appropriate to advert to the preliminary
objection raised by the petitioner to address to the same and placing reliance on the
decision in L.R. Shivaramgowda v. T.M. Chandrashekar, AIR 1999 SC 252 and
interpreting various provisions of the 1951 Act and the Rules, namely, the Conduct
of Elections Rules, 1961 (hereinafter referred to as „the 1961 Rules‟) has opined, as
we have indicated hereinbefore.
3. We have heard Dr.A.M. Singhvi, learned senior counsel along with
Mr.Abhimanyu Bhandari, learned counsel for the petitioner and Mr.K.K.
Venugopal, learned senior counsel along with Mr.Dilip Annasaheb Taur;
Mr.Saurabh Shyam Shamshery; Mr.P.R. Chopra; and Mr.A.S. Chandhiok, the
learned Additional Solicitor General along with Ms.Sonia Sharma, learned counsel
for the respondents.
4. Dr.A.M. Singhvi, the learned senior counsel appearing for the petitioner has
submitted that the Election Commission can only make an enquiry with regard to
the filing of the accounts, as contemplated under the Act, and while doing so, he
has to be guided by the rules which are prescribed under the Act. It is urged by
him that the Rule 89 has to be appositely appreciated in the context of Section 10A
and Sections 77 and 78. It is urged by him that Section 100 of the 1951 Act
WP (C) No.2511/2011 page 3 of 18
confers power on the High Court to set aside the election and if the said
jurisdiction is conferred on the Election Commission to enter into the veracity of
the truth and falsity of the accounts, there will be a dual adjudicatory process.
Dr.Singhvi, learned senior counsel has also submitted that the decision rendered in
L.R. Shivaramgowda (supra) has not taken note of the Constitution Bench decision
in Sucheta Kripalani v. Shri S.S. Dulat, ICS, Chairman of the Election Tribunal,
Delhi & Ors., AIR 1955 SC 758. He has commended us to paragraph 13 of the
said decision.
5. Mr.Venugopal, learned senior counsel, Mr.Saurabh Shyam Shamshery,
Mr.Chopra and Mr.Chandhiok, the learned Additional Solicitor General, learned
counsel for the respondents have submitted that there has been a change in the
provision when the decision in Sucheta Kripalani (supra) was delivered by the
Constitution Bench and hence, the ratio laid down therein would not be applicable.
The learned counsel appearing for the respondents would further submit that the
decision in L.R. Shivaramgowda (supra) lays down the law clearly and the same
being a binding precedent, the Commission has correctly appreciated the ratio laid
down therein and held that it has jurisdiction to conduct an enquiry.
6. To appreciate the rivalised submission raised at the Bar, it is appropriate to
refer to Section 10A of the 1951 Act. It reads as under: -
WP (C) No.2511/2011 page 4 of 18
"10A. Disqualification for failure to lodge account of
election expenses. - If the Election Commission is satisfied
that a person -
(a) has failed to lodge an account of election expenses,
within the time and in the manner required by or
under this Act, and
(b) has no good reason or justification for the failure,
the Election Commission shall, by order published in the
Official Gazette, declare him to be disqualified and any such
person shall be disqualified for a period of three years from the
date of the order."
[Underlining is ours]
7. Sections 77 and 78, which occur in Chapter 8 that deals with Election
Expenses, are as follows: -
"77. Account of election expenses and maximum thereof. -
(1) Every candidate at an election shall, either by himself or
by his election agent, keep a separate and correct account of all
expenditure in connection with the election incurred or
authorized by him or by his election agent between the date on
which he has been nominated and the date of declaration of the
result thereof, both dates inclusive.
Explanation 1. - For the removal of doubts, it is hereby
declared that -
(a) the expenditure incurred by leaders of a political party on
account of travel by air or by any other means of
transport for propagating programme of the political
party shall not be deemed to be the expenditure in
connection with the election incurred or authorised by a
WP (C) No.2511/2011 page 5 of 18
candidate of that political party or his election agent for
the purposes of this sub-section;
(b) any expenditure incurred in respect of any arrangements
made, facilities provided or any other act or thing done
by any person in the service of the Government and
belonging to any of the classes mentioned in clause (7) of
section 123 in the discharge or purported discharge of his
official duty as mentioned in the proviso to that clause
shall not be deemed to be expenditure in connection with
the election incurred or authorised by a candidate or by
his election agent for the purposes of this sub-section.
Explanation 2.- For the purposes of clause (a) of
Explanation 1, the expression "leaders of a political party", in
respect of any election, means, -
(i) where such political party is a recognised political
party, such persons not exceeding forty in number,
and
(ii) where such political party is other than a
recognised political party, such persons not
exceeding twenty in number,
whose names have been communicated to the Election
Commission and the Chief Electoral Officers of the States by
the political party to be leaders for the purposes of such
election, within a period of seven days from the date of the
notification for such election published in the Gazette of India
or Official Gazette of the State, as the case may be, under this
Act:
Provided that a political party may, in the case where any of the
persons referred to in clause (i) or, as the case may be, in clause
(ii) dies or ceases to be a member of such political party, by
further communication to the Election Commission and the
Chief Electoral Officers of the States, substitute new name,
WP (C) No.2511/2011 page 6 of 18
during the period ending immediately before forty-eight hours
ending with the hour fixed for the conclusion of the last poll for
such election, for the name of such person died or ceased to be
a member, for the purposes of designating the new leader in his
place.
(2) The account shall contain such particulars, as may be
prescribed.
(3) The total of the said expenditure shall not exceed such
amount as may be prescribed.
78. Lodging of account with the district election officer. -
(1) Every contesting candidate at an election shall, within
thirty days from the date of election of the returned candidate
or, if there are more than one returned candidate at the election
and the dates of their election are different, the later of those
two dates, lodge with the district election officer an account of
his election expenses which shall be a true copy of the account
kept by him or by his election agent under section 77."
[Emphasis supplied]
8. Section 100, which deals with grounds for declaring election to be void, 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
WP (C) No.2511/2011 page 7 of 18
(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 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.
(2) If in the opinion of the High Court, a returned candidate
has been guilty by an agent other than his election agent, of any
corrupt practice but the High Court is satisfied -
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and
every such corrupt practice was committed
contrary to the orders, and without the consent, of
the candidate or his election agent;
xxx
WP (C) No.2511/2011 page 8 of 18
(c) that the candidate and his election agent took all
reasonable means for preventing the commission
of corrupt practices at the election; and
(d) that in all other respects the election was free from
any corrupt practice on the part of the candidate or
any of his agents,
then the High Court may decide that the election of the returned
candidate is not void."
[Emphasis added]
9. In this context, we may refer to Rule 86 of the 1961 Rules which reads as
follows:
"86. Particulars of account of election expenses. -
(1) The account of election expenses to be kept by a
candidate or his election agent under section 77 shall
contain the following particulars in respect of each item
of expenditure from day to day, namely: -
(a) the date on which the expenditure was incurred or
authorised;
(b) the nature of the expenditure (as for example,
travelling, postage or printing and the like);
(c) the amount of the expenditure -
(i) the amount paid;
(ii) the amount outstanding;
(d) the date of payment;
(e) the name and address of the payee;
WP (C) No.2511/2011 page 9 of 18
(f) the serial number of vouchers, in case of amount
paid;
(g) the serial number of bills, if any, in case of amount
outstanding;
(h) the name and address of the person to whom the
amount outstanding is payable.
(2) A voucher shall be obtained for every item of
expenditure unless from the nature of the case, such as
postage, travel by rail and the like, it is not practicable to
obtain a voucher.
(3) All vouchers shall be lodged along with the account of
election expenses, arranged according to the date of
payment and serially numbered by the candidate or his
election agent and such serial numbers shall be entered in
the account under item (f) of sub-rule (1).
(4) It shall not be necessary to give the particulars mentioned
in item (e) of sub-rule (1) in regard to items of
expenditure for which vouchers have not been obtained
under sub-rule (2)."
10. In this context, we may profitably refer to Rule 89 of the 1961 Rules. It is as
follows: -
"89. Report by the district election officer as to the lodging
of the account of election expenses and the decision of the
Election Commission thereon. -
(1) As soon as may be after the expiration of the time
specified in section 78 for the lodging of the accounts of
WP (C) No.2511/2011 page 10 of 18
election expenses at any election, the district election officer
shall report to the Election Commission -
(a) the name of each contesting candidate;
(b) whether such candidate has lodged his account of
election expenses and if so, the date on which such
account has been lodged; and
(c) whether in his opinion such account has been
lodged within the time and in the manner required
by the Act and these rules.
(2) Where the district election officer is of the opinion that
the account of election expenses of any candidate has not been
lodged in the manner required by the Act and these rules, he
shall with every such report forward to the Election
Commission the account of election expenses of that candidate
and the vouchers lodged along with it.
(3) Immediately after the submission of the report referred to
in sub-rule (1) the district election officer shall publish a copy
thereof affixing the same to his notice board.
(4) As soon as may be after the receipt of the report referred
to in sub-rule (1) the Election Commission shall consider the
same and decide whether any contesting candidate has failed to
lodge the account of election expenses within the time and in
the manner required by the Act and these rules.
(5) Where the Election Commission decides that a contesting
candidate has failed to lodge his account of election expenses
within the time and in the manner required by the Act and these
rules it shall by notice in writing call upon the candidate to
show cause why he should not be disqualified under section
10A for the failure.
WP (C) No.2511/2011 page 11 of 18
(6) Any contesting candidate who has been called upon to
show cause under sub-rule (5) may within twenty days of the
receipt of such notice submit in respect of the matter a
representation in writing to the Election Commission, and shall
at the same time send to district election officer a copy of his
representation together with a complete account of his election
expenses if he had not already furnished such an account.
(7) The district election officer shall, within five days of the
receipt thereof, forward to the Election Commission the copy of
the representation and the account (if any) with such comments
as he wishes to make thereon.
(8) If, after considering the representation submitted by the
candidate and the comments made by the district election
officer and after such inquiry as it thinks fit, the Election
Commission is satisfied that the candidate has no good reason
or justification for the failure to lodge his account, it shall
declare him to be disqualified under section 10A for a period of
three years from the date of the order, and cause the order to be
published in the Official Gazette."
11. In the case of L.R. Shivaramgowda (supra), a three-Judge Bench of the
Apex Court has opined thus -
"17. Learned counsel for the first respondent made an attempt
to show that the pleading contains the relevant material facts.
According to him, paragraph 39 of the election petition sets out
the expenses incurred by the appellant per vehicle per day and
the total number of vehicles used by him. It was also contended
that the price of the newspaper Nagamangala Mitra per copy
was mentioned and the total number of copies purchased for
distribution to the voters was also mentioned. It was argued that
those were the material facts and by themselves they proved
that the appellant had incurred an expenditure exceeding the
prescribed limit. We are unable to accept this contention. After
WP (C) No.2511/2011 page 12 of 18
setting out those figures, the averment found in the election
petition is only to the effect that the said cost incurred by the
appellant had not been furnished in his statement of account.
The fact that in the last part of the said sentence, it was alleged
that there was on contravention of Section 123(6) of the Act,
would not come to the aid of the first respondent to contend that
the relevant material fact of excessive expenditure over and
above the prescribed limit had been pleaded. We must also refer
to the fact that for the purpose of Section 100(l)(d)(iv), it is
necessary to aver specifically that the result of the election
insofar as it concerns a returned candidate has been materially
affected due to the said corrupt practice. Such averment is
absent in the petition.
18. We shall now proceed to the second limb of the argument
of the appellant‟s counsel. The High Court has held that the
appellant had not maintained true and correct account of
expenditure incurred or authorised and the same amounted to
corrupt practice. „Corrupt practices‟ have been set out in
Section 123 of the Act. According to the first respondent, the
appellant is guilty of a corrupt practice described in sub-section
(6) of Section 123. Under that sub-section the incurring or
authorising of expenditure in contravention of Section 77 of the
Act is a corrupt practice. Section 77 provides that every
candidate at an election shall keep a separate and correct
account of all expenditure in connection with the election
incurred or authorised by him or by his election agent and that
the accounts shall contain such particulars as may be
prescribed. Rule 86 of the Conduct of Election Rules, 1961 sets
out the particulars to be contained in the account of election
expenses. Sub-sections (1) & (2) of Section 77 deal only with
the maintenance of account. Sub-section (3) of Section 77
provides that the total of the election expenses referred to in
sub-section (1) shall not exceed such amount as may be
prescribed. Rule 90 of the Conduct of Election Rules prescribes
the maximum limit for any Assembly Constituency. In order to
declare an election to be void, the grounds were set out in
Section 100 of the Act. Sub-section (l)(b) of Section 100 relates
WP (C) No.2511/2011 page 13 of 18
to any corrupt practice 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. In order to bring a
matter within the scope of sub-section (l)(b), the corrupt
practice has to be one defined in Section 123. What is referred
to in sub-section (6) of Section 123 as corrupt practice is only
the incurring or authorising of expenditure in contravention of
Section 77. Sub-section (6) of Section 123 does not take into
its fold, the failure to maintain true and correct accounts. The
language of sub-section (6) is so clear that the corrupt practice
defined therein can relate only to sub-section 3 of Section 77
i.e. the incurring or authorising of expenditure in excess of the
amount prescribed. It cannot by any stretch of imagination be
said that non-compliance with Section 77(1) & (2) would also
fall within the scope of Section 123(6). Consequently, it cannot
fall Under Section 100(1)(b). The attempt here by the first
respondent is to bring it within Section 100(l)(d)(iv). The
essential requirement under that sub-section is that the result of
the election insofar as it concerns the returned candidate has
been materially affected. It is needless to point out that failure
on the part of the returned candidate to maintain accounts as
required by Section 77(1) & (2) will in no case affect, and much
less materially, the result of the election.
19. This view has been expressed by this Court in Dalchand
Jain v. Narayan Shankar Trivedi, (1969) 3 SCC 685. A Bench
of three Judges held that it is only sub-section (3) of Section 77
which can be invoked for a corrupt practice under Section
123(6) and the contravention of Section 77 sub-section (1) &
(2) or the failure to maintain correct accounts with the
prescribed particulars does not fall under Section 123(6). The
Bench has referred to several earlier decisions of the High
Court and the decision of this court in C.A. No. 1321 of 1967
dated 22-3-1968.
xxx xxx xxx
WP (C) No.2511/2011 page 14 of 18
22. It was argued by learned counsel for the first respondent
that the aforesaid view would enable any successful candidate
at an election to snap his fingers at the law prescribing the
maximum limit of expenditure and escape from the provisions
of Section 77(3) by filing false accounts. According to him, if
the aforesaid construction of Sections 77 and 123(6) is to be
adopted, there will be no sanction against a candidate who
incurs an expenditure exceeding the maximum prescribed limit.
Referring to Section 10(A) of the Act, which enables the
Election Commission to disqualify a person who had failed to
lodge an account of election expenses within the time and in the
manner required by or under the Act and had no good reason or
justification for the failure, he contended that the said Section
provides only for a situation arising out of failure to lodge an
account and not a situation arising from a failure to maintain
true and correct accounts. We are unable to accept this
contention. In our opinion, sub-section (a) of Section 10(A)
takes care of the situation inasmuch as it provides for lodging
an account of election expenses in the manner required by or
under the Act. Section 77(2) provides that the accounts shall
contain such particulars as may be prescribed. Rule 86 of the
conduct of Election Rules provides for the particulars to be set
out in the account. The said Rule prescribes that a voucher shall
be obtained for every item of expenditure and for lodging all
vouchers along with the account of TC election expenses. Rule
89 provides that the District Election Officer shall report to the
Election Commission, the name of each contesting candidate,
whether such candidate has lodged his account of election
expenses and if so the date on which such account has been
lodged and whether in his opinion such account has been
lodged within the time and in the manner required by the Act
and the Rules. That Rule enables the Election Commission to
decide whether a contesting candidate has failed to lodge his
account of election expenses within the time and in the manner
required by the Act after adopting the procedure mentioned
therein. If an account is found to be incorrect or untrue by the
Election Commission after enquiry under Rule 89, it could be
held that the candidate had failed to lodge his account within
WP (C) No.2511/2011 page 15 of 18
the meaning of Section 10(A) and the Election Commission
may disqualify the said person. Hence, we do not find any
substance in the argument of learned counsel for the first
respondent."
[Underlining is ours]
12. In the case of Sucheta Kripalani (supra), in paragraph 13 it has been held
thus -
"It is a question of form and not of substance. If the return is in
proper form no question of falsity can arise unless somebody
raises the issue. If it is raised, the allegations will be made in
some other document by some other person and the charges so
preferred will be enquired into by the Tribunal."
13. What is urged by learned counsel for the petitioner that Section 100(1)(d)(iv)
confers exclusive power on the High Court to express an opinion with regard to
non-compliance of the provisions of the Act and such non-compliance must
materially affect the election and if the power is vested with the Commissioner to
go into the truth or falsity of the accounts, it will bring an anomalous situation.
The learned counsel would contend that it will create a dent in a democracy and
bring the election law to jeopardy. It is also propounded with immense vehemence
that the Rule 89 really provides the time factor and format but it does not confer
any power on the Commission to get into the truth or falsehood of the accounts.
We have reproduced the provisions of the Act and the Rules and extensively
WP (C) No.2511/2011 page 16 of 18
quoted from the decision in L.R. Shivaramgowda (supra). We find as the three-
Judge Bench was specifically dealing with the language employed in Section 10A
and in that context opined in a categorical manner that sub-section (a) of Section
10A takes care of the situation inasmuch as it provides for lodging an account of
election expenses in the manner required by or under the Act. Their Lordships
have analysed the scope and ambit of Rule 89 and clearly laid down that the Rule
enables the Election Commission to decide whether a contesting candidate fails to
lodge the account of election expenses within the time and in the manner required
by the Act and if an account is found to be incorrect or untrue by the Election
Commission after enquiry under the Rule, it could be held that the candidate had
failed to lodge his account within the meaning of Section 10A of the Act. Be it
noted, their Lordships have said so when a contention was raised that a successful
candidate at an election can snap his fingers at the law by filing false accounts. If
the decision is read as a whole and not in a disjointed manner the principle is clear
that the Commission can go into the truthfulness or untruthfulness of the accounts.
How far the Commission can go will be a question of degree. It will be in the
realm of exercise of power. It is extremely difficult to say that Rule 89 basically
has nothing to do with the provisions of the Act and deals with adjective sphere
totally discarding the substantive part. If Sections 77 and 78 and Rules 86 and 89
WP (C) No.2511/2011 page 17 of 18
are appositely construed, it would be clear that there is a check with regard to the
conduct of the contesting candidates as well as the elected candidates. A
distinction has to be drawn for setting aside an election by the court and causation
of an enquiry by the Commission.
14. In view of our aforesaid analysis, we are of the considered opinion that the
decision in L.R. Shivaramgowda (supra) is a precedent in the field and the
Commission has correctly appreciated and understood the law laid down therein
and, therefore, we concur with the view expressed by it.
15. Consequently, the writ petition, being devoid of merit, stands dismissed.
There shall be no order as to costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
SEPTEMBER 30, 2011
kapil
WP (C) No.2511/2011 page 18 of 18
