Md. Aftab Ansari vs State Election Commission
2021 Latest Caselaw 1381 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No.377 of 2018
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Md. Aftab Ansari, aged about 44 years, son of Md. Yusuf Ansari, resident of Digwadih No.10, Ward No.40, Dhanbad Nagar Nigam, P.O. Jealgora, P.S. Jora Pokhar, District Dhanbad, Jharkhand.

                              ...   ...    Petitioner/Appellant
                             Versus

1. State Election Commission, Jharkhand through its Secretary, Nirvachan Bhawan, New Market Chowk, Ratu Road, Ranchi, P.O. G.P.O., P.S. Sukhdeo Nagar, District Ranchi-834001.

2. State Election Commissioner, Nirvachan Bhawan, New Market Chowk, Ratu Road, Ranchi, P.O. G.P.O., P.S. Sukhdeo Nagar, District Ranchi-834001.

3. Md. Samsuddin son of Not known to the petitioner, Mohalla Digwadih No.10, Ward No.40, Dhanbad Nagar Nigam, P.O. Jealgora, P.S. Jora Pokhar, District Dhanbad, Jharkhand.

                          ...     ... Respondents/Respondents
                             -------
CORAM :          HON'BLE THE CHIEF JUSTICE
          HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                              ------
For the Appellant                  : Mr. R.N.Sahay, Sr. Advocate &
                                     Mr.Yashwardhan, Advocate

For the Respondent Nos. 1 & 2 : Mr. Sumeet Gadodia, Advocate

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C.A.V. on 08.10.2020 Pronounced on 18.03.2021

Per Dr. Ravi Ranjan, C.J.

With consent of the parties, hearing of the matter was

done through video conferencing and there was no complaint

whatsoever regarding audio and visual quality.

2. Before proceeding, it is relevant to mention here that the

writ petitioner/appellant had filed one interlocutory application

being I.A. No. 217 of 2020 for granting leave to make necessary

amendment to challenge the vires of Section 18(2) of the

Jharkhand Municipal Act, 2011. On 28.09.2020, learned

Senior counsel appearing for the writ petitioner/appellant

sought for leave to withdraw the aforesaid application with a

liberty to challenge the vires in an appropriate proceeding.

Accordingly, the aforesaid interlocutory application was

dismissed as withdrawn with the aforesaid liberty, however,

with an observation that the withdrawal of the aforesaid

interlocutory application will not prejudice the case of the writ

petitioner/appellant on its merit, by separate order dated

28.09.2020.

Further, another interlocutory application being I.A. No.

11151 of 2019 was also filed wherein the prayer was made to

implead one Sujit Kumar Singh who was declared elected in the

mid-term election after disqualification of the writ

petitioner/appellant but in course of argument submission has

been made on behalf of the parties that the election was held

during pendency of the connected proceeding and the said

election was not challenged and as such, the aforesaid

interlocutory application was not being pressed, accordingly the

same was disposed of by separate order dated 28.09.2020.

As prayed by the learned Senior counsel for the writ

petitioner/appellant, the instant appeal is confined only to the

issue of applicability of Section 18(2) of the Act, 2011 by which

the State Election Commission has exercised the power while

passing the impugned order and the quantum of debarment to

contest the election.

3. The instant intra-court appeal is directed against the order

dated 12.04.2018 passed by learned Single Judge of this Court

in W.P.(C) No. 1962 of 2016 whereby and whereunder the writ

petition has been dismissed by not interfering with the order

passed by the State Election Commission Jharkhand dated

25.02.2016 in Case No. 15 of 2015 whereby the writ

petitioner/appellant has been disqualified from holding the post

of Ward Councilor or Ward No.40 of Dhanbad Nagar Nigam

with immediate effect and further ordered that the

disqualification shall cease after six years of the General

Municipal Election, 2015.

4. The factual background of the case reads as hereunder:-

The petitioner/appellant was elected on the post of Ward

Councilor of Ward No.40, Dhanbad Nagar Nigam, Dhanbad in

pursuance of the election conducted in the year 2015.

The Respondent No.3 along with others made a complaint

against the petitioner/appellant before the State Election

Commission, Jharkhand alleging inter-alia therein that the

petitioner/appellant has concealed the fact about the criminal

cases against him at the time of filling of nomination form and

has contested the election by changing his name.

Pursuant thereto, a notice dated 24.08.2015 was issued by

the Respondent No.1. The writ petitioner submitted his reply

dated 05.10.2015 before the State Election Commission,

Jharkhand and denied the allegations leveled against him and

also filed documents in support of his contention.

The Respondent No.2, vide order dated 25.02.2016,

disqualified the writ petitioner from holding the post of

Councilor of Ward No.40 of Dhanbad Nagar Nigam with a

further direction for his disqualification for a period of six years

after the General Municipal Election, 2015.

The aforesaid order has been challenged before this Court

invoking the extra ordinary jurisdiction conferred under Article

226 of the Constitution of India but the learned Single Judge

has refused to interfere with the said order by passing the

impugned order which is the subject matter of the instant intra-

court appeal.

5. Mr. R.N.Sahay, learned Senior counsel, representing the

writ petitioner/appellant, submits that the State Election

Commission had no jurisdiction to proceed with the case and

thereby to declare the petitioner/appellant disqualified from

being Ward Councilor of Ward No.40 of Dhanbad Municipal

Corporation.

To buttress his argument, he has taken aid of the

provision of Section 580 of the Jharkhand Municipal Act, 2011

(hereinafter to be referred to as the Act, 2011) and has

submitted that if the election to an office of a Municipal

Corporation is under dispute, the election petition would lie

before the Sub-Judge within whose jurisdiction the Municipal

Corporation is situated. He has further submitted by referring

to the provision of Section584 of the Act, 2011 which deals with

the ground for declaring the election to be void. Sub-section (1)

of Section 584 of the Act, 2011 refers to the prescribed

authority for declaring the election to be void and if the same is

read with the provision of Section 580 of the Act, 2011, the

prescribed authority can only be said to be the Sub-Judge of

competent jurisdiction. According to him, since there is

allegation in the writ petition against the writ

petitioner/appellant to have adopted corrupt practice, as such

the situation provided in Section 584 (1)(b) of the Act, 2011

would be applicable and, thus, his candidature would have only

been challenged by way of an election petition. He submits that

even after the acceptance of the nomination of the writ

petitioner/appellant for the post of Ward Councilor, the affected

party could have filed an election petition in view of the

provisions of Section 584(1)(d)(i)(ii)(iv) of the Act, 2011. It has

further been submitted that Section 586 of the Act, 2011 deals

with the corrupt practice and if the omission on the part of the

writ petitioner/appellant in filing of the nomination form is

treated to be a corrupt practice, it was under the jurisdiction of

the concerned Sub-Judge to adjudicate upon the same in an

election petition preferred by the affected person/candidate.

Learned Senior counsel further submits that the condition

of disqualification of Councilor has been provided under

Section 18 of the Act, 2011. Section 18(1)(k) of the Act, 2011

provides one of such conditions that if the Councilor has been

found guilty of corrupt practice, he would be disqualified as a

Councilor. He has further referred to the provision of Section

587 of the Act, 2011 wherefrom it is evident that the Councilor

would be disqualified on the finding of the prescribed authority

with regard to commission of corrupt practice and since the

prescribed authority in this case will be the Sub-Judge of its

jurisdiction, the State Election Commission could not have the

jurisdiction, declaring the writ petitioner/appellant disqualified

from being Ward Councilor of Ward No.40 of Dhanbad

Municipal Corporation and debarring him for six years.

He has taken aid of the provision of Article 243(V) of the

Constitution of India as also Article 243(Z)(G) of the

Constitution of India to strengthen his argument that the

election of any municipality cannot be put to question except by

way of an election petition presented to such authority in such

manner or in terms with any law made by the State Legislature.

He submits that the conditions mentioned in Sub-section (2) of

Section 18 of the Act, 2011 is for the period prior to a candidate

getting elected in any municipal election and once a candidate

is declared elected and a certificate is given to him in Form -

22, the provision of Sub-section (2) of Section 18 of the Act,

2011 would not apply, and, therefore, the order passed by the

State Election Commission is having no jurisdiction, rather, it

has acted contrary to the statutory provision as stipulated in

the Act, 2011, under Section 580 thereof.

He, with respect to the judgment of conviction in

connection with Chakradharpur P.S. Case No. 97 of 2004, has

submitted that since it was an old case and the writ petitioner

since was released on probation, therefore, the same could not

have been brought to the notice at the time of filling of the

nomination form and so far as Jora Pokhar P.S. Case No. 147

of 2014 is concerned, the writ petitioner/appellant since has

not received any summons from the competent court of

criminal jurisdiction, as such, reference of the aforesaid case

has not been made in the nomination form.

6. Per contra, Mr. Sumeet Gadodia, learned counsel

appearing for the State Election Commission, Jharkhand

submits that the power of declaring a candidate disqualified to

contest the election and the power of appropriate court to

entertain an election petition to challenge the election of a

candidate are different from each other. He submits that the

condition of disqualification as has been mentioned under

Section 18 of the Act, 2011 contains specific clause for

disqualification as also debarment for a period of six years from

the date of election.

He, by refuting the argument advanced on behalf of

learned counsel for the writ petitioner/appellant about

applicability of provision of Section 580 of the Act, 2011, has

submitted that the election petition can only lie under the

aforesaid provision if situation as provided under the provision

of Section 586 of the Act, 2011, is available treating the same

as corrupt practice but if the conditions as contained under the

provision of Section 586 of the Act, 2011 will be taken into

consideration, there is no reference about the condition of

disqualification on the ground of suppression of fact about

conviction in a criminal case by the criminal court of competent

jurisdiction and as such, election petition will not lie.

He submits that since the writ petitioner/appellant has

suppressed the material fact about conviction in a criminal

case, therefore, he has got no right to be a public representative

and when a complaint has been received to that effect before

the State Election Commission, the Commission has exercised

the power conferred under Sub-section (2) of Section 18 of the

Act, 2011 and has rightly exercised the aforesaid power by

passing order of disqualification as also order of debarment for

six years from the last election, hence, it cannot be said that

the order passed by the State Election Commission is without

jurisdiction. Therefore, the learned Single Judge by taking into

consideration the legal positions as provided under the Act,

2011 vis-à-vis factual aspect, has rightly declined to interfere

with the impugned order hence the same may not be interfered

with.

7. Heard learned counsel for the parties.

8. This Court, on appreciation of the rival submissions as

also after scrutiny of the material available on record, deems it

fit and proper to refer certain legal position which is relevant to

reach to the rightful conclusion.

So far issue on merit is concerned, it requires to refer

herein that after the 74th Amendment Act, 1992, the State of

Jharkhand, in conformity with the aforesaid amendment, has

come up with Jharkhand Act 07 of 2012, to be called as

Jharkhand Municipal Act, 2011, in order to consolidate and

amend the laws relating to the Municipal Governments in the

State of Jharkhand.

The Act, 2011 contains a provision of disqualification of

Councilors as under Section 18(1) which reads as under :-

"18. Disqualification of Councillors: (1) Notwithstanding anything contained in this Act, a person shall be disqualified for election or after election for holding the office as councilor, if such person:

(a) is not a citizen of India

(b) is so disqualified by or under any law, for the time being in force, for the purpose of elections to the Legislature of the State:

Provided no person shall be disqualified on the ground that he is less than twenty five years of age when he has attained the age of twenty one years,

(c) is in the service of the Central or State Government or any local authority;

(d) is in the service of any institution receiving aid from the Central or State Government or any local authority;

(e) has been adjudged by a competent court to be of unsound mind;

(f) applies to be adjudicated or is adjudicated as an insolvent;

(g) has been dismissed from the service of the Central or State Government or any local authority for misconduct and has been declared to be disqualified for employment in the public service;

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(h) has been sentenced by a criminal court, whether within or outside India, to imprisonment for an offence, other than a political offence for a term exceeding six months or has been ordered to furnish security for keeping good behavior under section 109 or section 110 of the Code of Criminal Procedure, 1973 and such sentence or order not having subsequently been reversed, or absconding being an accused in a criminal case for more than six months;

(i) has under any law for the time being in force become ineligible to be a member of any local authority;

(j) holds any salaried office or office of profit under the Municipality:

Provided that a person shall not be deemed to hold an office of profit under the municipality by reason only that he is a mayor or chairperson or councilor of a municipality,

(k) has been found guilty of corrupt practices: Provided that on being found guilty of corrupt practices, the disqualification shall cease after six years of general election;

(l) if he has not paid all taxes due by him to the Municipality at the end of the financial year immediately preceding that in which the election is held;

(m) has been willfully omits or refuses to perform his duties and functions or abuses the power vested in him or is found to be guilty of misconduct on the discharge of his duties or become physically or mentally incapacitated for performing his duties;

(n) if he has more than two living children: Provided that a person having more than two children on or upto the expiry of one year of the commencement of the Act shall not be deemed to be disqualified;

(o) has been absent from three consecutive meetings or sittings of the Municipality without having previously obtained permission from the council at a meeting

Section 18(2) of the Act, 2011 contains a provision that if

any question arises as whether a Member of a Municipality at

any level was before election or has become after election

subject to any disqualifications mentioned in sub-section (1),

the question shall be referred for the decision of the State

Election Commission. For ready reference the aforesaid

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provision is being referred hereinbelow :-

"(2) If any question arises as to whether a Member of a Municipality at any level was before election or has become after election subject to any disqualifications mentioned in sub-section (1), the question shall be referred for the decision of the State Election Commission. The matter of disqualification may be brought to the notice of the State Election Commission in the form of a complaint, application or information by any person or authority. The State Election Commission may also take suo-moto cognizance of such matters and decide such matters expeditiously after allowing sufficient opportunity to the affected parties of being heard."

It is, thus, evident from the provision as contained under

Sub-section (2) of Section 18 of the Act, 2011 that power to look

into the subject matter on hand and disqualification as

mentioned in Sub-section (1) of Section 18 at any level either

before election or after election, is vested with the State Election

Commission.

It is further evident, to which we are concerned in the

instant case, that the issue of criminal antecedent which has

been provided under Section 18(1)(h) stipulates that if a person

has been sentenced by a criminal court, whether within or

outside India, to imprisonment for an offence, other than a

political offence for a term exceeding six months or has been

ordered to furnish security for keeping good behavior under

section 109 or section 110 of the Code of Criminal Procedure,

1973 and such sentence or order not having subsequently been

reversed, or absconding being an accused in a criminal case for

more than six months.

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It is further evident that as per the conditions of

disqualification as referred under Sub-section (1) of Section 18

of the Act, 2011, to deal with such situation the decision

making authority is the State Election Commission as per the

provision made under Sub-section (2) of the Section 18 of the

Act, 2011.

It is further evident from the provision of Section 18(1)(k)

which contains a condition that if a persons has been found

guilty of corrupt practices, the disqualification shall cease after

six years of general election, meaning thereby, the punishment

for corrupt practice will fall with disqualification for a period of

six years of general election.

Further relevant provision which requires to be referred

herein to answer the issue as has been raised in the instant

appeal is Section 580 of the Act, 2011 under the caption

heading "Election Petition", which reads as under :-

"580. Election Petition (1) The election to any office of a municipality shall not be called in question except by an election petition as prescribed:

Provided that if an election to any office of a Nagar Panchyat is under dispute, the election petition shall lie before such Munsif within whose jurisdiction such Nagar Panchyat is situated and if the election to any office of Municipal Council and Municipal Corporation is under dispute, the election petition shall lie before such Sub- Judge within whose jurisdiction such municipality is situated."

It is evident from the provision of Section 580(1) of the Act,

2011 that election to any office of a municipality shall not be

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called in question except by an election petition as prescribed,

provided that if an election to any office of a Nagar Panchyat is

under dispute, the election petition shall lie before such Munsif

within whose jurisdiction such Nagar Panchyat is situated and

if the election to any office of Municipal Council and Municipal

Corporation is under dispute, the election petition shall lie

before such Sub-Judge within whose jurisdiction such

municipality is situated.

Section 583 of the Act, 2011 provides a provision under

the caption heading "Bar to interference by courts in

electoral matters", which reads as under :-

"583. Bar to interference by courts in electoral matters- Notwithstanding anything contained in this Act -

(a) the validity of any law relating to the delimitation of wards or the allotment of seats to such wards, made or purporting to be made under Article 243 ZA of the Constitution of India shall not be called in question in any court;

(b) no election to any municipality shall be called in question except by an election petition presented to the prescribed authority under this Act."

It is evident from the provision of Section 583(b) of the Act,

2011 which stipulates that no election to any municipality shall

be called in question except by an election petition presented to

the prescribed authority under this Act.

Section 584 of the Act, 2011 provides grounds for

declaring election to be void, which reads as under :-

"584. Grounds for declaring election to be void - (1) Subject to the provisions of sub-section (2) if the prescribed authority is of opinion -

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          (a)    that on the date of his election, a returned
                 candidate      was      not    qualified    or    was

disqualified, to be chosen as a councillor under this Act; or -

(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or

(c) that any nomination paper 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 of any
                         nomination; or
                 (ii)    by any corrupt practice committed in
                         the interests of the returned candidate
                         by an agent; or

(iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or

(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder;

the prescribed authority shall declare the election of the returned candidate to be void.

(2) If in the opinion of the prescribed authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied -

(a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate;

(b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and

(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; the prescribed authority may decide that the election of the returned candidate is not void."

It is evident from the condition stipulated under Section

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584(1)(b) of the Act, 2011 about corrupt practices if committed

by a returned candidate or his agent or by any other person

with the consent of a returned candidate or his agent.

The corrupt practice has been defined under Section 586

of the Act, 2011 which reads as under :-

586. Corrupt Practices - The following shall be deemed to be corrupt practices for the purposes of this Act-

(a) bribery as defined in clause (i) of section 123 of the Representation of the People Act, 1951 (Central Act No. 48 of 1951), for the time being in force;

(b) undue influences as defined in clause (ii) of the said section for the time being in force;

(c) that appeal by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to national symbols such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate;

(d) the promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the election of that candidate to or for prejudicially affecting the election of any candidate;

(e) the publication by a candidate or his agent or by any other person with the consent of candidate or his agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidature being statement reasonably calculated to prejudice the prospects of that candidate's election;

(f) the hiring or procuring whether on payment or otherwise, any vehicle or vessel by a candidate or his agent or by any other person with the consent of a

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candidate or his agent, or the use of such vehicle or vessel for the free conveyance of any voter (other than the candidate himself, the member of his family or his agent) to or from any polling station provided in accordance with the rules made under this Act :

Provided that the use of any public transport vehicle or vessel or railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause;

Explanation- In this clause, the word "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise whether used for the drawing of other vehicles or otherwise.

(g) the holding of any meeting at which intoxicating liquors are served;

(h) the issuing of any circular, placard or poster having reference to the election which does not bear the name and address of the printer and publisher thereof;

(i) any other practice which the Government may by rule specify to be a corrupt practice.

9. In the light of the aforesaid referred provision, we have

proceeded to examine the issue agitated by the learned Senior

counsel appearing for the writ petitioner/appellant who

vehemently has argued that save and except the election

petition, writ petitioner/appellant could not have been

disqualified and according to him, the power to disqualify is

only vested upon civil court as per the provision made under

Section 580 of the Act, 2011.

It is not in dispute that Section 580 of the Act, 2011

provides to file election petition for declaring an election to be

void by making an application before the competent court of

civil jurisdiction but it would be evident from the provision of

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Section 584 of the Act, 2011 which provides grounds for

declaring an election to be void. If we will go through the

provision of Section 18(1) vis-à-vis the provision of Section 584

of the Act, 2011, the condition stipulated for disqualification of

a candidate as provided under Section 18(1) of the Act, 2011

and grounds for declaring an election to be void as provided

under Section 584 of the aforesaid Act, it would be evident that

the condition stipulated under both the provisions are quite

different and a situation if arises to disqualify councilors on the

grounds as mentioned under Section 18(1) of the Act, 2011, the

power has been vested to take a decision by passing an

appropriate order with respect to disqualification upon the

State Election Commission as per the provision made under

Section 18(2) but if the ground as mentioned under Section 584

of the Act, 2011 for declaring an election to be void arises, in

that circumstances certainly an appropriate petition is to be

filed before the competent court of civil jurisdiction and in such

situation the State Election Commission will have got no

jurisdiction to exercise such power.

Therefore, according to our considered view, the power

which has been vested upon the State Election Commission as

per the provision of Section 18(2) of the Act, 2011 is on different

context while the power which has been vested to be exercised

by competent court of civil jurisdiction as under Section 580 of

the Act, 2011 is on different context and both cannot be

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intermingled with, rather, the same would depend upon the

reasons of disqualification of councilor or grounds for declaring

an election to be void and, as such, the question of jurisdiction

will depend upon the facts of each and every case.

It is relevant to refer herein one fact in this context that

virtually writ petitioner has also admitted the fact about

jurisdiction of State Election Commission as provided under

Section 18(2) of the Act, 2011 as because the vires of the

aforesaid provision has been challenged by filing one

interlocutory application being I.A. No. 217 of 2020. However,

the same has been withdrawn with liberty to challenge it in a

separate proceeding, but challenging the vires of Section 18(2)

of the Act, 2011 means and suggests that the writ petitioner is

also accepting the jurisdiction of State Election Commission

otherwise there was no occasion to question the vires.

10. This Court now is proceeding to examine as to whether the

jurisdiction which has been exercised by the State Election

Commission is as per the terms of the provision of Section 18(2)

of the Act, 2011 or not?

Admittedly, a complaint has been made about suppression

of fact of conviction of the writ petitioner/appellant in a

criminal case i.e., Chakradharpur P.S. Case No. 97 of 2004 in

which the writ petitioner/appellant has been convicted by the

trial court, confirmed by the appellate court. However, learned

Senior counsel appearing for the writ petitioner/appellant has

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submitted that the appellant has been extended the benefit of

the Probation of Offenders Act but we are conscious of the fact

that application of Probation of Offenders Act is only with

respect to the sentence part having got no nexus with the

conviction and if the conviction has not been stayed by any

competent court, the accused will be said to be convicted in the

aforesaid criminal case and will carry the antecedent.

In the light of the aforesaid admitted fact, we again have

travelled to the provision of Section 18(1) of the Act, 2011

wherein a condition for disqualification has been stipulated as

under Sub-section (h) which stipulates that if a person has

been sentenced by a criminal court, such person will be

required to be disqualified.

The provision of Section 18(1)(k) of the Act, 2011

stipulates that if a person has been found guilty of corrupt

practices, the quantum of disqualification to contest the

election will be six years of general election.

An issue has been raised by the learned Senior counsel

appearing for the writ petitioner that since the writ petitioner

has been disqualified on the ground of suppression of fact

about conviction in a criminal case being Chakradharpur P.S.

Case No. 97 of 2004 which contains no quantum of period of

disqualification but the State Election Commission has

incorrectly applied the ground of disqualification as stipulated

under Sub-section (k) of Section 18(1) of the Act, 2011 to the

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effect that if found guilty of corrupt practices but the said

argument is not acceptable to this Court since the Hon'ble Apex

Court has defined the corrupt practices in the judgment

rendered in the case of Krishnamoorthy v. Sivakumar and

Others reported in (2015) 3 SCC 467, upon which reliance has

also been placed by the learned Single Judge wherein at

paragraph 91 it has been held that in an election petition, the

election petitioner is required to assert about the cases in

which the successful candidate is involved as per the rules and

how there has been non-disclosure in the affidavit. Once that is

established, it would amount to corrupt practice. For ready

reference, paragraph 91 is being referred hereinbelow :-

"91. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr Salve, it is more dangerous, for the electorate is denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu v. Jagannath. 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. It is necessary to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat

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at the cost of repetition, it has to be determined in an election petition by the Election Tribunal."

We, therefore, are of the view that since the Hon'ble Apex

Court has defined the corrupt practice, the fact of the instant

case is squarely governed by the aforesaid judgment since

herein also it is the admitted fact that the writ petitioner has

been convicted in a criminal case and as such, it will come

under the fold of definition of corrupt practice and, therefore,

the argument which has been advanced in this regard by the

learned Senior counsel representing the writ petitioner will of

no avail, accordingly rejected

We have already come to finding that the State Election

Commission while exercising the jurisdiction by disqualifying

and debarring the writ petitioner cannot be said to have

exceeded its jurisdiction or cannot be said to have acted

without jurisdiction.

Further, it also requires to answer the issue of

applicability of provision of Section 580 of the Act, 2011 to file

election petition before a competent court of civil jurisdiction

since, according to learned Senior counsel appearing for the

writ petitioner, the election petition is also to be filed with

respect to corrupt practices as stipulated under Section 586 of

the Act, 2011.

We, on careful consideration of the provision of Sections

580, 584 and 586 of the Act, 2011, are of the view that the said

argument is having no substance it is for the reason that the

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grounds for declaring election to be void have been mentioned

under Section 584 of the Act, 2011 and if such grounds would

be available, it is only then an election petition is to be filed

before a competent court of civil jurisdiction as provided under

Section 580 of the Act, 2011.

Further, with respect to the corrupt practices as defined

under Section 586 of the Act, 2011, when we have considered

the allegations leveled against the writ petitioner about using a

different name at the time of filling up of the nomination form

by suppressing the fact about criminal antecedent, the

aforesaid condition is not available either for declaring the

election to be void as provided under Section 584 of the Act,

2011 or under the fold of corrupt practices as stipulated under

Section 586 of the Act, 2011.

According to our considered view, in the facts and

circumstances of the instant case, the election petition will not

be a proper remedy.

Mr. R.N.Sahay, learned Senior counsel appearing for the

writ petitioner/appellant, at this juncture, has submitted that

debarring the writ petitioner/appellant for a period of six years

is harsh and not incommensurate with the nature of allegation

leveled against him which has seriously been disputed by the

learned counsel appearing for the State Election Commission.

We, after appreciating the arguments, are of the view that,

since it is a question of acting as a people's representative

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either by way of a Member of Legislative Assembly or by way of

a member of Parliament or by way of a Councilor or Mayer in

the local bodies, if a candidate is proposing himself to be a

representative of the people, it is his utmost duty to come

before the people with utmost integrity and clarity in character

and for that reason the nomination form is to be filled up with

the specific column to furnish the details about his candidature

and if such nomination is being filled up by way of

misrepresenting the facts, it will be nothing but an active

concealment and that cannot be accepted from a candidate who

is willing to be a people's representative. Thus, in light of the

said principle, the Hon'ble Apex Court has been pleased to lay

down the ratio in Krishnamoorthy v. Sivakumar and Others

(Supra).

Admittedly, in the case in hand, the writ

petitioner/appellant has been convicted in a criminal case

although for commission of offence under Section 498-A of the

Indian Penal Code but the question is not of gravity of offence,

it is of integrity of a candidate. If a candidate is intentionally

suppressing a fact, the same cannot be said to be proper on his

part since the misrepresentation of fact is nothing but amounts

to fraud and in such situation, since the writ

petitioner/appellant has been convicted in a criminal case, it

was his utmost duty to bring this fact to notice by filling up

nomination form but instead of doing that, he, with ulterior

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motive, has misrepresented by not disclosing his original name,

rather he has filled up his nomination form by his another

name. This further aggravates the nature of allegation and in

the circumstances. The State Election Commission has

debarred the writ petitioner/appellant for a period of six years

as provided under Section 18(1)(k) of the Act, 2011 which,

according to our considered view, cannot be said to be

unjustified and as such it is not disproportionate.

11. We, accordingly, are of the view that the learned Single

Judge has considered all aspects of the matter, both on facts

and law, and has come to conclusive finding by showing no

interference with the impugned order, which, according to us,

requires no interference.

12. In view thereof, the instant appeal fails and is dismissed.

(Dr. Ravi Ranjan, C.J.) I agree

(Sujit Narayan Prasad, J.) (Sujit Narayan Prasad, J.)

Birendra/ A.F.R.