Arun Kumar vs Dr. Harsh Vardhan
2019 Latest Caselaw 6214 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      EL.PET. 7/2019
                                         Reserved on: 22.10.2019
                                         Date of decision : 04.12.2019
       ARUN KUMAR                                         ..... Petitioner
                             Through:    Dr.S.S. Hooda, Adv.

                             versus

       DR. HARSH VARDHAN                                  ..... Respondent
                    Through:             Mr.Nikhil Goel, Mr.Dushyant
                                         Sarna & Mr.P. Harold, Advs.

CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
I.A. No.12439/2019

1.     This petition arises out of the election for Chandni Chowk
Parliamentary Constituency, which took place in May, 2019 for the
17thLok Sabha, wherein the respondent was declared as the successful
candidate from the said constituency.

2.     The petitioner, who claims to be a registered voter from the
Chandni Chowk constituency, has challenged the election of the
respondent alleging „Corrupt Practice‟ under Section 123(2) of The
Representation of the People Act, 1951(hereinafter referred to as the
Act), on the following grounds:

       (i)       Suppression of the actual Purchase Price of the property
                 bearing flat no. 122, 2nd Floor, Delhi Apartment CGHS Ltd.
                 Plot No. 15-C, Sector-22, Dwarka, New Delhi-78.




EL.PET. 7/2019                                                         Page 1
         (ii)     Non- declaration of the source of income of the spouse.

3.      It is the case of the petitioner that the respondent, who was also the
returned candidate in the 2014 Lok Sabha elections, revealed the
Purchase Price of the above stated property as Rs. 62,50,000/- in the
affidavit filed in that election year, while the Purchase Price of the same
property in the affidavit of 2019 Lok Sabha elections is shown as Rs.
70,73,673/-. The said property being in the name of the respondent‟s
wife.

4.      The petitioner submits that in the affidavit filed in the election year
2014, it is shown that the wife of the respondent never filed an Income
Tax Return. Relying upon the Income Tax Returns filed by the
respondent‟s wife during the years 2014-2019, as shown in the affidavit
filed in 2019, the averments made in the petition further questions the
source of her income and seeks an explanation as to her ownership of the
immovable assets.

5.      The petitioner submits that an incorrect disclosure of the Purchase
Price of the property and the non-declaration of the source of income of
the spouse amounts to „Corrupt Practice‟ under Section 123(2) of the Act
and that these grounds spell out a cause of action for setting aside the
election of the respondent.

6.      The petitioner places reliance on the decision of the Supreme Court
in Lok Prahari Vs. Union of India & Ors. (2018) 4 SCC 699, wherein
the Supreme Court has held as under:

        "Information to the voter



EL.PET. 7/2019                                                             Page 2
        55. The information regarding the sources of income of the
       candidates and their associates, would in our opinion, certainly
       help the voter to make an informed choice of the candidate to
       represent the constituency in the legislature. It is, therefore, a part
       of the fundamental right under Article 19(1)(a) as explained by
       this Court in ADR case [Union of India v. Assn. for Democratic
       Reforms, (2002) 5 SCC 294.]
       xxxxx
       72. We have already taken note of (i) the fact that increase in the
       assets of the legislators and/or their associates disproportionate to
       the known sources of their respective incomes is, by compelling
       inference, a constitutionally impermissible conduct and may
       eventually constitute offences punishable under the PC Act, and
       (ii) "undue influence" within the meaning of Section 123 of the
       1951 RP Act. In order to effectuate the constitutional and legal
       obligations of legislators and their associates, their assets and
       sources of income are required to be continuously monitored to
       maintain the purity of the electoral process and integrity of the
       democratic structure of this country. Justice Louis D. Brandeis,
       perceptively observed: "the most important political office is that
       of the private citizen".
       xxxxxx

       79. We shall now deal with Prayer 2 which seeks a declaration
       that non-disclosure of assets and sources of income would amount
       to "undue influence" -- a corrupt practice under Section 123(2)
       of the 1951 RP Act. In this behalf, heavy reliance is placed by the
       petitioner      on      a     judgment        of     this    Court
       in Krishnamoorthy v. Sivakumar (2015) 3 SCC 467. It was a case
       arising under the Tamil Nadu Panchayats Act, 1994. A
       notification was issued by the State Election Commission
       stipulating that every candidate at an election to any panchayat is
       required to disclose information, inter alia, whether the candidate
       was accused in any pending criminal case of any offence
       punishable with imprisonment for two years or more and in which
       charges have been framed or cognizance has been taken by a




EL.PET. 7/2019                                                          Page 3
        court of law. In an election petition, it was alleged that there were
       certain criminal cases pending falling in the abovementioned
       categories but the said information was not disclosed by the
       returned candidate at the time of filing his nomination. One of the
       questions before this Court was whether such non-disclosure
       amounted to "undue influence" -- a corrupt practice under the
       Panchayats Act. It may be mentioned that the Panchayats Act
       simply adopted the definition of a corrupt practice as contained in
       Section 123 of the 1951 RP Act.

       80. On an elaborate consideration of various aspects of the
       matter, this Court in Krishnamoorthy case held as follows:
                 "91. ... While filing the nomination form, if the requisite
                 information, as has been highlighted by us, relating to
                 criminal antecedents, is not given, indubitably, there is an
                 attempt to suppress, effort to misguide and keep the people
                 in dark. This attempt undeniably and undisputedly is undue
                 influence and, therefore, amounts to corrupt practice. ..."
     81. For the very same logic as adopted by this Court
       in Krishnamoorthy , we are also of the opinion that the non-
       disclosure of assets and sources of income of the candidates and
       their associates would constitute a corrupt practice falling under
       heading "undue influence" as defined under Section 123(2) of the
       1951 RP Act. We, therefore, allow Prayer 2.

7.     The respondent has filed the present application seeking summary
dismissal of the above Election Petition of the petitioner.           In the
application, it is contended that even assuming that there was a
discrepancy in the declaration of the Purchase Price of the above referred
flat in the affidavits filed by the respondent in the years 2014 and 2019,
the same cannot be presumed as „Undue Influence‟ or as a „Corrupt
Practice‟.   It is further submitted that the Election Petition fails to




EL.PET. 7/2019                                                          Page 4
 disclose „Material Facts

‟ and „Material Particulars‟ in support of the petition.

8. The respondent submits that in the election, out of 15,62,268 registered voters in the Chandni Chowk Parliamentary Constituency, 9,80,390 voters turned out to vote and out of these votes, the respondent secured 5,19,055 votes, that is, 52.94% of the total votes polled; the next highest votes were polled in favour of the candidate who secured 2,90,910 votes, which is only 29.67% of the total votes. It is submitted by the respondent that the above fact would show that the allegations raised in the petition are frivolous and merely intended to initiate a fishing and roving inquiry.

9. The learned counsels for the parties have made submissions in line of their pleadings.

10. Section 123(2) of the Act is reproduced hereinbelow:

"123. Corrupt Practices- The following shall be deemed to be corrupt practices for the purposes of this Act: xxxx "(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--

EL.PET. 7/2019 Page 5

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

11. As noted hereinabove, in Lok Prahari (supra), the Supreme Court has held that non-disclosure of assets and sources of income of the candidates and their associates would constitute a „corrupt practice‟ falling under heading „undue influence‟ as defined in Section 123(2) of the Act. At the same time, the Supreme Court declined to issue direction in nature of mandamus to consider the amendment of the Act to provide for rejection of nomination paper of the candidates and disqualification of MPs/MLAs/MLCs deliberately furnishing wrong information of their assets in Form-26 at the time of filing of the nomination.

12. The Supreme Court in R.P.Moidutty v. P.T. Kunju Mohammad and Ors., (2000) 1 SCC 481, observed that:

EL.PET. 7/2019 Page 6 "It is basic to the law of elections and election petition that in a democracy, the mandate of the people as expressed at the Hastings must prevail and be respected by the Courts and that is why the election of a successful candidate is not to be set aside lightly".

13. In Rahim Khan v Khurshid Ahmed and Ors., (1974) 2 SCC 660, the Supreme Court observed as under:

"9. However, we have to remember another factor. An election once held is not to be treated in a light-hearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded."

14. On the above touchstone the allegations made in the present petition are to be tested.

15. As noted hereinabove, the allegation of the petitioner is that the respondent in the affidavit filed in 2014 had declared the Purchase Price of the flat as Rs.62,50,000/- while in the 2019 affidavit has disclosed the same as Rs.70,73,673/-. It is not denied that the wife of the respondent

EL.PET. 7/2019 Page 7 owned this flat so disclosed. The petition, however, does not disclose as to how this difference in the Purchase Price would and has in fact had any direct or indirect interference with the free exercise of the electoral right of any person.

16. In Lok Prahari (supra), the Supreme Court was concerned with the non-disclosure of assets and sources of income of the candidates and their associates. The Court held that the effective increase in the assets of the legislator and/or their associates, disproportionate to the known sources of their respective income is a constitutionally impermissible conduct and the citizen is entitled to be informed of the same so as to enable/empower him to make rational choices of the record of those holding or aspiring to hold public office of the State. Therefore, the primary purpose of such disclosure is for the citizen to be informed of the increase in wealth of the candidate disproportionate to the known sources of his income.

17. In the present case, though the disclosure of the asset was duly made, the allegation is that it carries a different value in the two affidavits. It was for the petitioner to have thereafter also shown as to how this difference in valuation/purchase price would adversely affect the choice made by the citizen and therefore, amount to an „undue influence‟. The petition is completely silent on this aspect.

18. Equally, apart from making a statement of fact that in the affidavit filed by the respondent in 2014 he had asserted that the wife of the respondent has never filed an Income Tax Return, while in the 2019 affidavit it is stated that the wife of the respondent has filed Income Tax Return in the intervening period and it is not disclosed how she has come

EL.PET. 7/2019 Page 8 to have purchased immovable assets of total purchase price of Rs.85,35,673/-, there again is no averment showing how the said information given in the affidavit falls foul of Section 123 of the Act.

19. In Lalit Kishore Chaturvedi vs. Jagdish Prasad Thada and Others, (1990) Supp SCC 248, the Supreme Court emphasised on the Election Petition containing concise statement of the material facts on which the petitioner relies as an Election Petition has the effect of declaring an election void. It is a serious remedy and therefore, it is vital that the corrupt practice charge against the respondent should be full and complete statement of material facts to clothe the petitioner with a complete Cause of Action to be stated in the same. In the present case, barring making the allegation regarding the valuation of the property and trying to raise suspicion on the income of the spouse declared by the respondent, the petition is lacking any other material particulars to show as to how the same, in any manner, effected the outcome of the election in question.

20. I, therefore, find that the petition does not disclose any Cause of Action. Consequently, the application filed by the respondent is allowed.

EL.PET.7/2019

In view of the order passed above in I.A. No.12439/2019, the Election Petition is dismissed. The parties shall bear their own cost.

                                                     NAVIN CHAWLA, J
DECEMBER 04, 2019/Arya




EL.PET. 7/2019                                                         Page 9