Gujarat High Court
Brahmkshatriya Bhagvatiben ... vs Nimuben Jayantibhai Bambhaniya on 30 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 5 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
Yes
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BRAHMKSHATRIYA BHAGVATIBEN KHETSINHBHAI
Versus
NIMUBEN JAYANTIBHAI BAMBHANIYA & ORS.
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Appearance:
MR PV PATADIYA(5924) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 30/04/2025
ORAL JUDGMENT
1. The present petition is filed under section 80 and 81 of
the Representation of People Act, 1851 challenging the
general election 2024 of 15 Bhavnagar, Parliamentary
Constituency and prayed to declare the election of the
respondent No.1 namely Nimuben from Bhavnagar is
void.
2. Initially the petition was filed by the party in person in
vernacular language, however, thereafter, through the
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Gujarat High Court Legal Aid Service Authority, learned
advocate Mr.P.V.Patadiya was appointed to represent
the party in person. The petition is filed mainly on the
ground that the affidavit alongwith the nomination form
is not filed in English language, and, the same is filed in
Gujarati language and therefore, there is violation of
Article 84(a) of the Constitution of India and on that
ground the election is sought to be declared void.
3. This Court has heard learned advocate Mr.Patadiya at
length and perused the evidence placed on record with
the memo of the petition.
4. It emerges that on raising the objections the District
Election Officer, Bhavnagar has dealt with the said
objections in detail and rendered his findings which is
reproduced herein below:
(1) Objection-1: - As per section-7 of the Gujarat Stamp Act-1958,
some part of the affidavit is not written on the stamp paper as it
should be written.
Conclusion: - The Electoral Officer's Handbook (RO Handbook) -
2023 of Para No. 5.16.1 The affidavit shall be on a stamp paper
of the prescribed value as prescribed under the State law of the
concerned State and Form-26 provides that the decision on the
validity of the affidavit has to be taken by the Returning Officer.
Affidavit is submitted in the prescribed format from the side since
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it is submitted by stamp paper of Rs. 50/- or more, this point is
not taken into account.
(2) Objection-2 - Additional Chief Electoral Officer, Office of the
Chief Electoral Officer, State of Gujarat. The letter number of
Gandhinagar is ELC/1-13-623 (2)chh. In addition to the affidavit in
Form-26 dated 5/02/2016, a non- payment certificate from the
agencies providing electricity, water and telephone service to the
government accommodation of the candidate for the last 10 years
is to be obtained and another affidavit is to be submitted along
with it and if the candidate does not submit the non-payment
certificate on the basis of such affidavit within the stipulated time,
it will be considered as an error as per Section-36 of the
Representation of the People Act, 1951.
Conclusion: Electoral Officer's Handbook (RO Handbook) - Details
of Para No. 5.16.7 Provisions for additional expenditure in respect
of the amount, if any, to be charged for Government
accommodation allotted to candidates have been included in Form
No. 26 in respect of Public Financial Institutions and Government
liabilities. The candidate is, therefore, required to furnish the
requisite declaration / particulars in this regard in Form:26,
provided that no separate additional affidavit is required to be
furnished for the purpose.
(3) objection-3. Latter of candidature no.1 to 27 and No. 29and 30
in the heading of his nomination paper for which election he
contested for the details of the nomination papers submitted are
not indicated in the electoral roll for the General Elections-2014 to
the 15-Bhavnagar Parliamentary Constituency.) It is mandatory to
mention this in the heading of the nomination paper and the
voter's division is not mentioned in the fields of nomination papers
Nos. 1 to 27 and Nos. 29. 30. Therefore as per the Representation
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of the People Act-1951, Nomination papers of application nos. 1
to 27 and 29 to 30 are liable to be rejected.
Conclusion: - Considering the sample-2 (A) of the nomination
paper and the prescribed form-26 of the affidavit prescribed by the
Election Commission of India, you have objected Generalized Sense
in this regard. Sample-2 (A) and form-26 are duly received from
the candidates. The candidature has been accepted or rejected in
accordance with the legal provisions / orders of the Hon'ble
Supreme Court / latest instructions of the Election Commission of
India. The matter is not maintainable.
(4) Objection: Candidates from 1st to 27th and 29, 30 they have
kept two blank spaces between para 8 (3) and 8 (4) of the
affidavit of the form- 26 of the attachment of the nomination
paper. The paragraph below the affidavit is not signed as an
affidavit and is signed as a declaration. Hence, they have not filed
the Statutory form-26 affidavit. are defective. The first column of
para 8 (2) is blank for all candidates and the third column does
not contain additional words. Therefore, their claims are flawed.
Don't approve. We have oral and written objections against the
approval and request for cancellation on the grounds of being
defective.
Conclusion: the candidate Application No. 1st to 27th and 29,30th
have kept the two columns blank between Pace-8 (3) and 8 (4) of
the affidavit of Sample-26 related to the nomination paper and the
first column of Paragraph 8 (2) and the column after sub-
paragraph-8 of Para-11 are kept blank by all the candidates.
Accordingly, it is not necessary to fill up the aforesaid particulars
in view of the prescribed form No. 26 of the affidavit and the fact
that the candidates have signed as declarants in the prescribed
sample affidavit in person of the Notary, this point is not to be
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taken into consideration.
(5) Objection-5: - Candidate: candidature form No. 1,2,11, 13 of
shri bambhaniya nimuben jayantibhai, the first column of para 8
(2) of the affidavit of form-26 is blank. The second column is
empty. After column 7 of part-B para-11, box 1 to 6 are empty.
Below para 8-B, there are two empty box. 8-3 is empty. form-26
is not declared. I have not submitted any additional affidavit that
I have not been allotted any government accommodation in the
last 10 years. The oath / affirmation under Article 84A of the
Constitution of India has not been taken in the language / official
language (English language) of the Constitution and has been
taken only in the Gujarati language. Request to cancel his
candidature due to this defect. For which election have they filed
their nomination papers? This is happening in which election year.
It is mandatory to indicate the year of the election in the heading
of the nomination paper, but it is not indicated. The name of the
candidate was also not mentioned. This crucially important defect
is the first to be noticed so that due to this defect, her nomination
paper No. 1.2.11.13 The humble request for cancellation and the
affidavit in form-26 does not indicate the name and number of
years of the electoral constituency the election belongs. This is the
first and most important drawback. I humbly request you to
withdraw her nomination. Request to cancel his candidature as the
affidavit of form-26 is not as per the prescribed format.
Conclusion - Candidate Shri Nimuben Jayantibhai Bambhania has
submitted the nomination paper of Sample-2 (A) and affidavit of
form-26 as prescribed by the Election Commission of India and no
column of the affidavit of form- 26 submitted by the candidate
has been kept blank and the details of government dues in Para-8
(2) of the affidavit have been duly filled and there is no need to
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file a separate additional affidavit for government dues as
mentioned in the conclusion of objection-2.
As per the instructions of the Election Commission of India, a
candidate has to take oath / affirmation in English or his / her
state language. According to which the candidate has taken the
prescribed oath / affirmation in Gujarati, the official language of
the state, this issue is not worth considering.
(6) Objection-6: Candidate: Bhavanaben Raghavbhai Makwana Para
8 (2) of the affidavit of form-26 in 3, 15 is the first column is
blank. In the second column, the address of the government
residence is written as MLA Member Residence Sector 11
Gandhinagar. she is not an MLA. Therefore, the address of the
MLA's residence is wrong. Column 2 is empty. After para 8 (3),
the box is empty. Columns 1 to 6 below paragraph 7 are blank.
Para 8 (3) of the estimated current market price is blank. The
affidavit has not been filed, the sample is of -26 and the affidavit
is written and signed below the affidavit. Page No. 5 above
paragraph 7 (1) is defective as per paragraph 7 (1). Therefore, I
humbly request you to withdraw her nomination.
conclusion- The affidavit submitted by the candidate Shri
Bhavnaben Raghavbhai Makwana in the sample of form-26
prescribed by the Election Commission of India and none of the
columns of the affidavit submitted by the candidate has been kept
blank. para 6.10.1 (IV) of RO handbook-2023 clearly stipulates
that the candidate should not be disqualified if he submits an
affidavit as per the prescribed pattern but there is an allegation of
filling up of defective or incorrect information in it.
(7) Objection-7- Candidate: Nomination of Umeshbhai Naranbhai
Makwana candidature form No. 4,5,23, 24 The first column of
Paragraph 8 (2) of form-26 in is blank. So it is empty. There are
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two gaps between para 8 (3) below and 8 (4). The affidavit below
the paragraph of the affidavit is not signed by writing and the
declaration is signed by writing. Hence, it has not been filed. And
the declaration of form-26 was done. And when the verification
paragraph in form-26 is completed, the form-26 affidavit is
completed. In this affidavit, below the paragraph of the affidavit,
the notary has not notarized and on the blank page i.e. after the
completion of the affidavit of form-26, the notary has made the
notary's tickets. And the notary has been rounded up. And there is
no text of the affidavit written on the blank page. Only this blank
page is notarized. It's page no. 10 is not given and the signature
of the candidate is not there. Hence his form Affidavit No.26 is
defective.
Therefore, it should be cancelled. Page 5 of No. According to 7
(1) all are defective. Hence, his latter of candidature should be
dismissed. The second column para 8 of form 26 affidavit is not
filled in the affidavit. His application no. 4,5,23, 24 humble
request to cancel. For which election did he file his nomination
papers? It is mandatory to indicate the year in which the election
is being held in the heading of the nomination paper, but it is not
indicated and the name of the electoral constituency is also not
indicated. This is the first significant drawback. Hence, his
nomination application No. 4,5,23, 24 humble request for
cancellation and the name of the electoral constituency and the
year of election are not indicated in the heading in the affidavit of
form-26. And what kind of elections? It is not displayed. This is
the first significant drawback. Therefore, I humbly request you to
cancel his nomination. The affidavit of form-26 is not as per the
prescribed format. Please cancel it.
Conclusion: - Candidate Mr. Umeshbhai Naranbhai Makwana has
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submitted nomination paper in Sample-2 (A) and affidavit in form-
26 as prescribed by the Election Commission of India. 100/- has
been affixed on the stamp paper by the Notary and the signature
of the Notary on the last page of the affidavit and the coin
appears to be affixed on the back page and in view of the
conclusion stated in Objection-4 regarding keeping two blank
spaces between para 8 (3) and 8 (4) of the affidavit, this issue
regarding the nomination paper and affidavit is not maintainable.
(8) Objection-8: Candidate: Alkaben Umeshbhai Makwana's
nomination application No. 6,7,25, 26 The first column of affidavit
para 8 (2) of form-26 is blank. There is no signature of the
candidate on the back page of the stamp. There is no page
number. Form 26 has been started from page no. 1 has been
started. Hence the stamp is not attached to the affidavit and is left
untouched. Only the third column of para 8 (2) is to be marked as
true. And it doesn't apply. Therefore it is not in prescribe format.
In the affidavit of form-26, the notary's stamp is not affixed and
the notary's stamp is affixed on the back page of the stamp. The
notary is incorrect as the candidate has not signed on the page.
Thus there is an affidavit without a notary's ticket. Request to
cancel his candidature for it is fundamentally wrong. Thus the
affidavit of form 26 is not in the prescribed format. The oath /
affirmation has been taken in the same Gujarati language. It is
mandatory to take oath / affirmation in English language but it is
not taken in English language. Thus, the Constitution is flawed.
According to page 9 (1) of page 7, all are defective. I humbly
request you to cancel her nomination.
Conclusion: Candidate Mr. Alkaben Umeshbhai Makwana has
submitted nomination paper in Sample-2 (A) and affidavit in form-
26 as prescribed by the Election Commission of India. Rs.100/
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stamped with notarized on the affidavit and in view of the
conclusion stated in Objection-4 regarding keeping the two blanks
between para 8 (3) and 8 (4) of the affidavit, the issue regarding
the nomination paper and affidavit and the conclusion mentioned
in objection-5 regarding the oath / affirmation are not to be
considered.
9) Objection-9: Candidate: Nareshbhai Naranbhai Rathod's
nomination application No.10,17 in the affidavit of form-26, the
xerox of the Aadhaar card is affixed on the back side of used
stamp paper and the text on the back of the stamp is erased.
form-26 The box in para 4 (2) of the affidavit is blank and the
name of the wife is not written and the box of the wife is blank
and the name of dependent is not written in the form 1, 2, 3. The
first column of para 8 (2) is blank. The second column is empty.
Column 3 only has to be marked as true, although the additional
preferable words "do not apply," Не wrote. After para 8 (3), there
are two blank box. The box is empty after sub- paragraph 8 of
paragraph 11. There is a paragraph of the affidavit of form- 26,
below which there are notes 1 to 5, on which the notary has
erased the text by putting a coin and putting a red bill. Thus, the
affidavit of form-26 is not filed in the prescribed format.
Therefore, his claim is false. Request to cancel. The drawbacks
which are there in para 7 (1) page 5. As such, there are
drawbacks. Hence, his nomination should be dismissed.
Conclusion: Candidate Shri Nareshbhai Naranbhai Rathod has
submitted nomination paper in Sample-2 (A) and affidavit in form-
26 as prescribed by the Election Commission of India. has been
notarized on Rs. 50/- stamp paper and in view of the findings
mentioned in objection-4 regarding the blank of the affidavit and
the findings mentioned in objection-5 regarding the nomination
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paper and affidavit, the matter is not maintainable.
(10) Objection-10: Candidate: -Sanjaybhai Maganbhai Makwana's
nomination No. 12, The notary's stamp is affixed on the back page
of the stamp for making the affidavit of form-26. There is no
signature of the candidate. Page number is not given. In the
affidavit of form-26, in affidavit para 5 (a) is incomplete, the
clause of para 5 (b) is incomplete. Paragraph 5 c) is incomplete.
Paragraph 5 (d) is incomplete. Paragraph 5 (e) is incomplete. The
paragraph 5 (f) is incomplete. Paragraph 4 is empty. The first box
of para 8 (2) is empty. In the third column, only the true sign is
to be marked. It doesn't apply. Additional words have been added.
After para 8 (3), there are two blank box. Affidavit of form-26 is
not submitted in the prescribed format. Hence, the request for
cancellation of his nomination paper. in Page No. 5 What are the
drawbacks in para 7 (1). As such, there are drawbacks. Hence, his
petition should be dismissed.
Conclusion: Candidate Shri Sanjaybhai Maganbhai Makwana has
submitted nomination paper in Sample-2 (A) and affidavit in form-
26 as prescribed by the Election Commission of India, And has
been notarized on Rs.50/- stamp paper and considering the
findings mentioned in Objection-4 regarding the blank of the
affidavit and the findings mentioned in Objection-5 regarding the
nomination paper and affidavit, this issue is not worth
considering.
11) Objections 11 & 12: Candidate: Sagarbhai Popatbhai Kalaniya
(nomination application No. 8 and Candidate: - Harsh Jagdishbhai
Goklani nomination application no.14, Notary's tickets have been
affixed on the back page of the stamp for the affidavit of form-26
in the nomination paper. Page number is not given, The first box
of para 8 (2) is empty. In the third column, it is written that the
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words of praise do not apply only the sign of truth is to be done.
After para 8 (3), there are two boxes are blank. Thus, the affidavit
has not been filed in the prescribed form-26. Request to cancel.
box is empty after para 11 (8). Request to cancel.
Conclusion: - Candidate Shri Sagarbhai Popatbhai Kalania and
Candidate Shri Harsh Jagdishbhai Goklani have filed nomination
papers in Sample-2(A) and form-26 prescribed by the Election
Commission of India and no column of the prescribed form-26
affidavit submitted by the candidate has been kept blank. Also,
the candidates will have to pay Rs. 50/- has been notarized on the
stamp paper and taking into account the findings mentioned in
Objection-4 regarding the blank of the affidavit and the findings
mentioned in objection-5 regarding the nomination paper and
affidavit, this issue is not worth considering.
(12) Objections-13- Candidate: - Dineshbhai Lakhabhai Rathod
nomination application no.9, the stamp used for the affidavit of
the form - 26 does not have a back page and the notary's tickets
are insufficiently affixed. Therefore, the affidavit of 26 is not in
the prescribed format. Request him to withdraw his candidature.
Conclusion: - Candidate Mr. Dineshbhai Lakhabhai Rathod and
Candidate Shri Harsh Jagdishbhai Goklani have filed nomination
papers in Sample- 2(A) and form-26 prescribed by the Election
Commission of India and no column of the prescribed form-26
affidavit submitted by the candidate has been kept blank. Also,
the candidates will have to pay Rs. 50/ - has been notarized on
the stamp paper and taking into account the findings mentioned in
Objection-4 regarding the blank of the affidavit and the findings
mentioned in objection-5 regarding the nomination paper and
affidavit, this issue is not worth considering.
(13) Objection-14 to 18: The candidature of (1) Shri
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Mulshankarbhai Raghurambhai Chauhan application No. 16 (2)
Anilbhai Narendrabhai Chavda's application No. 19 (3) Parmar
Rajesh Kumar Premjibhai's application No. 20 (4) Bhupatbhai
Mohanbhai Vala's application No. 21 (5) Tidabhai Devashibhai
Boricha's application form No. 27 along with the nomination
papers of form-26 is not in the prescribed format. Therefore there
nomination applications are defective hence cancel the same.
Conclusion: Objections No. 14 to 18: Candidature in Sample-2 (A)
and affidavit in form-26 as prescribed by the Election Commission
of India by the candidates and no column of the prescribed form-
26 affidavit submitted by the candidate is left blank and the
affidavit by the candidate is notarized on the prescribed stamp
paper. the findings mentioned in Objection-4 regarding the blank
of the affidavit and the findings mentioned in objection-5
regarding the nomination paper and affidavit, this issue is not
worth considering.
(14) Objection-19: Candidate: Baraiya Kishore Kumar Bhikhabhai's
nomination No.18 The affidavit of the form-26 is not in the
prescribed format. Request him to cancel his nomination for being
defective.
Conclusion: - The candidature of Mr. Baraiya Kishore Kumar
Bhikhabhai has been declared invalid at the end of scrutiny of his
nomination paper as part number and serial number of his
electoral roll have been incorrectly mentioned in part-2 of his
nomination paper and the details of sufficient 10 proposers have
not been filled in as well as he himself has been shown as the
proposer and the affidavit of the prescribed sample has not been
submitted by the notary.
(15) Objection-19: Candidate: Anaghan Hasmukhbhai Hirabhai's
nomination No. 22, affidavit form 26 defective therefore
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Requesting for cancellation.
Conclusion: Candidate Shri Anaghan has a great reputation
submitted an affidavit in form-26 prescribed by the Election
Commission of India but the candidature of the candidate has
been declared invalid at the end of scrutiny as one of the 10-
proposers mentioned in Part-2 of the nomination paper by the
candidate belongs to the Parliamentary Constituency outside 15-
Bhavnagar Parliamentary Constituency.
(16) Objection-20: Candidate: - Anantsinh prabhatsinh solanki
nomination No. 29, affidavit form 26 defective therefore
Requesting for cancellation.
Conclusion. - Since the columns in the form-26 affidavit submitted
by the candidate Shri Anantsinh Prabhatsinh Solanki along with
his nomination paper are blank, we have submitted the date of
verification in the checklist prescribed by the Returning Officer.
New affidavit to be submitted by 20/04/2024. Accordingly, the
candidate has to appear before the Returning Officer for
verification. New affidavit filed on 20/04/2024. In the new
affidavit also, since all the columns / blanks have not been filled
by the candidate, his nomination paper has been declared invalid
at the end of the scrutiny.
(17) Objection-21: Candidate: - -Trivedi Bhavnaben Manojbhai
nomination No. 30, affidavit form 26 defective therefore
Requesting for cancellation.
Conclusion: - As the candidate Shri Trivedi Bhavnaben Manojbhai
has not submitted the affidavit of the prescribed form-26 along
with his nomination paper, we have included the affidavit of
form-26 in the checklist prescribed by the Returning Officer. It
was informed to submit by 15-00 hours on 19/04/2024 but due to
non-submission of affidavit by the candidate within the stipulated
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time, his candidature has been declared invalid at the end of
scrutiny.
Thus, on the basis of the objections raised by you during the
scrutiny of nomination papers as detailed above, it has been
decided to accept / reject the nomination papers in your presence.
Which is to be taken into account."
5. This Court has also referred the decision rendered by
the Apex Court in the case of Vashist Narain Sharma
vs Dev Chandra And Others reported in (1954) 2
SCC 32 wherein, the Apex Court has held as under:-
"6. Before an election can-be declared to be wholly void under
section 100(1) (c), the Tribunal must find that "the result of the
election has been materially affected. " These words have been the
subject of much controversy before the Election Tribunals and it is
agreed that the opinions expressed have not always been uniform
or consistent. These words seem to us to indicate that the result
should not be judged by the mere increase or decrease in the total
number of votes secured by the returned candidate but by proof of
the fact that the wasted votes would have been distributed in such
a manner between the contesting candidates as would have
brought about the defeat of the returned candidate. The next
question that arises is whether the burden of proving this lies
upon the petitioner who objects to the validity of the election. It
appears to us that the volume of opinion preponderates in favour
of the view that the burden lies upon the objector.
8. The language of section 100(1)(c), however, clearly places a
burden upon the objector to substantiate the objection that the
result of the election has been materially affected. On the contrary
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under the English Act the burden is placed upon the respondent to
show the negative, viz., that the result of the decision has not
been affected. This view was expressed in Rai Bahadur Surendra
Narayan Sinha v. Amulyadhone Roy & others (1), by a Tribunal
presided over by Mr. (later Mr. Justice) Roxburgh. The contention
advanced in that case was that the petitioner having established
an irregularity it was the duty of the respondent to show that the
result of the election had not been materially affected thereby.
The Tribunal referred to the provisions of section 13 of the Ballot
Act and drew a distinction between that section and the provisions
of paragraph 7(1) (c) of Corrupt Practices Order which was more
or lesson the same lines as section 100(1) (c). They held that the
onus is differently placed by the two provisions. While under the
English Act the Tribunal hearing an election petition is enjoined
not to interfere with an election if it appears to it that non-
compliance with the rules or mistake in the use of forms did not
affect the result of the election, the provision of paragraph 7(1) (e)
placed the burden on the petitioner. The Tribunal recognized the
difficulty of offering positive proof in such circumstances but
expressed the view that they had to interpret and follow the rule
as it stood.
9. In C. M. Karale v. -Mr. B. K. Dalvi etc. (2), the Tribunal held
that the onus of proving that the result had been materially
affected rests heavily on the petitioner of proving by affirmative
evidence that all or a large number of votes would have come to
the returned candidate if the person whose nomination had been
improperly accepted had not been in the field.
10. In Babu Basu Sinha v. Babu Rajandhari Sinha etc. it was
emphasized that it is not enough for the petitioner to show that
the result of the election might have been affected but he must
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show that it was actually affected thereby.
11. The case of Jagdish Singh v. Shri Rudra Deolal etc. was one
under section 100(1) (c) of the Representation of the People Act. It
was held that the question should always be decided on the basis
of the material on the record and not on mere probabilities. The
Tribunal distinguished between an improper rejection and an
improper acceptance of nomination observing that while in the
former case there is a presumption that the election had been
materially affected, in the latter case the petitioner must prove by
affirmative evidence, though it is difficult, that the result had
been materially affected.
12. The learned counsel for the respondents concedes that the
burden of proving that the improper acceptance of a nomination
has materially affected the result of the election lies upon the
petitioner but he argues that the question can arise in one of
three ways:
(1) where the candidate whose nomination was improperly
accepted had secured less votes than the difference between the
returned candidate and the candidate securing the next highest
number of votes,
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly
accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not
materially affected because if all the wasted votes are added to
the votes of the candidate securing the highest votes, it will make
no difference to the result and the returned candidate will retain
the seat. In the other two cases it is contended that the result is
materially affected. So far as the third case is concerned it may be
readily conceded that such would be the conclusion. But we are
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not prepared to hold that the mere fact that the wasted votes are
greater than the margin of votes between the returned candidate
and the candidate securing the next highest number of votes must
lead to the necessary inference that the result of the election has
been materially affected. That is a matter which has to be proved
and the onus of proving it lies upon the petitioner. It will not do
merely to say that all or a majority of the wasted votes might
have gone to the next highest candidate. The casting of votes at
an election depends upon a variety of factors and it is not possible
for any one to predicate how many or which proportion of the
votes will go to one or the other of the candidates. While it must
be recognised that the petitioner in such a case is confronted with
a difficult situation, it is not possible to relieve him of the duty
imposed upon him by section 100(1)(c) and hold without evidence
that the duty has been discharged. Should the petitioner fail to
adduce satisfactory evidence to enable the' Court to find in his
favour on this point, the inevitable result would be that the
Tribunal -would not interfere, in his favour and would allow the
election to stand.
15. The Tribunal in the present case rightly took the view that
they were not impressed with the oral evidence about the
probable fate of votes wasted on Dudh Nath Singh, but they went
on to observe : "Considering that Dudh Nath respondent No. 4
received more votes than the margin of votes by which respondent
No. 1 was returned we are constrained to hold that there was
reasonable possibility of respondent No. 2 being elected in place
of respondent No. 1, had Dudh Nath not been in the field." We
are of opinion that the language of section 100(1)(c) is too clear
too any speculation about possibilities. The section clearly lays
down that improper acceptance is not to be regarded as fatal to
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the election unless the Tribunal is of opinion that the result has
seen materially affected. The number of wasted votes was 111. It
is impossible to accept the ipse dixit. of witnesses coming from
one side or the other to say that all or some of the votes would
have gone to one or the other on some supposed or imaginary
ground. The question is one of fact and has to be proved by
positive evidence. If the petitioner is unable to adduce evidence in
a case such as the present, the only inescapable conclusion to
which the Tribunal can come is that the burden is not discharged
and that the election must stand. Such result may operate harshly
upon the petitioner seeking to set aside the election on the ground
of improper acceptance of a nomination paper, but neither the
Tribunal, nor this Court is concerned with the inconvenience
resulting from the operation of the law. How this state of things
can be remedied is a matter entirely for the Legislature to
consider. The English Act to which we have referred presents no
such conundrum and lays down a. perfectly sensible criterion upon
which the Tribunal can proceed to declare its opinion. It directs
the Tribunal not to set aside the election if it is of opinion that
the irregularity has not materially affected the result."
6. This Court has also referred the decision rendered by
the Apex Court in the case of Shambhu Prasad
Sharma vs Charan Das Mahant & Ors reported in
2012 11 SCC 390 wherein, Apex Court has held as
under:-
"15. Suffice it to say that the case pleaded by the appellant was
not one of complete failure of the requirement of filing an
affidavit in terms of the judgment of this Court and the
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instructions given by the Election Commission but a case where
even according to the appellant the affidavits were not in the
required format. What is significant is that the election petition
did not make any averment leave alone disclose material facts in
that regard suggesting that there were indeed any outstanding
dues payable to any financial institution or the government by the
returned candidate or any other candidate whose nomination
papers were accepted. The objection raised by the appellant was
thus in the nature of an objection to form rather than substance
of the affidavit, especially because it was not disputed that the
affidavits filed by the candidates showed the outstandings to be
nil.
16. . The directions issued by this Court, and those issued by the
Election Commission make the filing of an affidavit an essential
part of the nomination papers, so that absence of an affidavit may
itself render a nomination paper non-est in the eye of law. But
where an affidavit has been filed by the candidate and what is
pointed out is only a defect in the format of the affidavit or the
like, the question of acceptance or rejection of the paper shall
have to be viewed in the light of sub-section (4) to Section 36 of
the Act which reads:
"36 (4): The returning officer shall not reject any
nomination paper on the ground of any defect which is not
of a substantial character."
18. From the above it is evident that the form of the nomination
papers is not considered sacrosanct. What is to be seen is whether
there is a substantial compliance of the requirement as to form.
Every departure from the prescribed format cannot, therefore, be
made a ground for rejection of the nomination paper.
19. In the case at hand, the appellant alleges that the affidavit did
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not in the prescribed format state whether the candidates had any
outstanding liabilities qua financial institutions or the government.
Now a departure from the format may assume some importance if
the appellant alleged that there were such outstanding liabilities
which were concealed by the candidates. That, however, is not
the case of the appellant. Any departure from the prescribed
format for disclosure of information about the dues, if any,
payable to the financial institutions or the government will not be
of much significance, especially when the declaration made by the
returned candidate in his affidavit clearly stated that no such dues
were recoverable from the deponent. The departure from the
format was not, in the circumstances, of a substantial character on
which the nomination papers of the returned candidate could be
lawfully rejected by the returning officer.
20. Coming to the allegation that other candidates had also not
submitted affidavits in proper format, rendering the acceptance of
their nomination papers improper, we need to point out that the
appellant was required to not only allege material facts relevant to
such improper acceptance, but further assert that the election of
the returned candidate had been materially affected by such
acceptance. There is no such assertion in the election petition.
Mere improper acceptance assuming that any such improper
acceptance was supported by assertion of material facts by the
appellantpetitioner, would not disclose a cause of action to call for
trial of the election petition on merit unless the same is alleged to
have materially affected the result of the returned candidate."
7. This Court has referred to Section 100 of the
Representation of People's Act, 1951 which provides
ground for declaring the election duty void which is
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reproduced herein below:-
"100. Grounds for declaring election to be void.
1. Subject to the provisions of sub-section (2) if the High Court is
of opinion--
(a)that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under
the Constitution or this Act or the Government of Union
Territories Act, 1963 (20 of 1963); or
(b)that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the
consent of a returned candidate or his election agent; or
(c)that any nomination has been improperly rejected; or
(d)that the result of the election, in so far as it concerns a
returned candidate, has been materially affected--
(i)by the improper acceptance or any nomination, or
(ii)by any corrupt practice committed in the interests of the
returned candidate 5by 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 8without the
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consent, of the candidate or his election agent;
***
(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."
8. Having considered the provisions of the Representation
of People Act, 1851 and the decision rendered by the
Apex Court in the above cases, this Court is of the view
that the petitioner failed to establish that such improper
acceptance of the nomination form have been materially
affected on the election of written candidates. Mere non
compliance or breach of the constitution or statutory
provisions as alleged above by itself does not result in
invalidating the result of the written candidates under
section 100(1)(d)(IV), the sine qua known for declaring
the election of written candidates to be void on the
ground under clause 4 of section 100(1)(d)(IV) is further
proof of the fact that such a breach or non observance
has resulted in materially affecting the result of the
written candidates. In other words the violation of
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breach or non observance or non compliance with the
provisions of constitution or the act, 1951 or the rules or
the orders made thereunder, by itself does not render
the election of written candidates void under section
100(1)(d)(IV). For the election petition to succeed on
such ground, he has not only to plead and prove the
grounds but also that the result of election in so far as it
is concerned, the written candidates has been materially
affected. The language of section 100(1)(c) clearly
places the burden upon the objector to substantiate the
objection that the result of the election has been
materially affected.
8.1. As the petitioner fails to establish that improper
acceptance is fatal to the elections, this Court did not
find any merits in the submission of the petitioner, hence
this petition deserves to be dismissed.
9. Resultantly, this petition is dismissed.
(M. K. THAKKER,J)
NIVYA A. NAIR
