Madhu Kora vs Election Commission Of India
2011 Latest Caselaw 4877 Del

*      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. 4662/2011

       Madhu Kora                                                   ..... Petitioner
                            Through:         Mr.Sunil Kumar, Sr.Adv. with Mr.Himanshu
                                             Shekhar, Mr.Abhay Prakash Sahay &
                                             Mr.Sandeep Nagora, Advs.

                                    versus

       Election Commission of India                      ..... Respondent

Through: Mr.P.R. Chopra, Adv. for ECI.

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

DIPAK MISRA, CJ

By this writ petition, the petitioner has prayed for the following reliefs: -

"A. Issue appropriate writ, order or direction for quashing the notices dated 07.10.2010 and 22.01.2011 issued by the Election Commission of India and declaring that the said notices to be ultra-vires and without any authority of law and/or

WP (C) No.4662/2011 page 1 of 8 B. Issue a writ of prohibition restraining the Election Commission from assuming the jurisdiction to decide an issue regarding excessive expenditure in violation of Section 77(3) of the Representation of People Act being the foundation for an action under Section 10A.

C. Or in the alternate hold that the learned Election Commission has no jurisdiction to decide on the issue of alleged falsity of accounts.

D. Hold and declare that Section 10A is ultra-vires Article 329(b) of the Constitution, vis-à-vis returned candidates.

E. Pass such further order/s as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice."

2. This Court today in WP (C) No. 2511/2011, while dealing with the similar

issue, after referring to the provisions of Sections 10(A), 77, 78 and 100 of the

Representation of the People Act, 1951 and Rules 86 and 89 of the Conduct of

Elections Rules, 1961 had held thus -

"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

WP (C) No.4662/2011 page 2 of 8 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 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

WP (C) No.4662/2011 page 3 of 8 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 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-

WP (C) No.4662/2011 page 4 of 8 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

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

WP (C) No.4662/2011 page 5 of 8 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 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

WP (C) No.4662/2011 page 6 of 8 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 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 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.

WP (C) No.4662/2011 page 7 of 8

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."

3. In view of the aforesaid decision, the present writ petition has to pave the

path of dismissal and, accordingly, we so direct. There shall be no order as to

costs.

CHIEF JUSTICE

SANJIV KHANNA, J.

SEPTEMBER 30, 2011
kapil




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