Kerala High Court
Syriac Thomas vs Vazhoor Soman on 31 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
Election Petition No. 10 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
EL.PET. NO. 10 OF 2021
ELECTION PETITIONER:
SYRIAC THOMAS,AGED 56 YEARS,
S/O. LATE THOMAS RESIDING AT DOOR NO. EP 9/917, KALARICKAL HOUSE, ELAPPARA
PANCHAYATH, ELAPPARA P.O., ELAPPARA VILLAGE, PEERMADE TALUK, IDUKKI
DISTRICT, KERALA, PIN-685501.
BY ADVS.SRI.C.S.MANU
SRI.C.A.ANUPAMAN
SRI.C.Y.VIJAY KUMAR
SMTI.MANJU E.R.
SRI.ANANDHU SATHEESH
SRI.ALINT JOSEPH
SRI.PAUL JOSE
RESPONDENTS:
1 VAZHOOR SOMAN,AGED 68 YEARS, S/O. KUNJU PAPPAN, RESIDING AT KUTTOOS NIVAS,
PALLIPPADIBHAGAM, VANDIPERIYAR P.O., PIN-685533, PERIYAR VILLAGE,
PEERMADE TALUK, IDUKKI DISTRICT, KERALA.
2 SRINAGARI RAJAN,AGED 62 YEARS, S/O. VASU, RESIDING AT SRINAGARI HOUSE,
KATTAPPANA KARA, KATTAPPANA P.O., KATTAPPANA VILLAGE, IDUKKI TALUK, IDUKKI
DISTRICT, KERALA-685508.
3 BIJU MATTAPPALY @ BIJU THOMAS,AGED 43 YEARS, S/O. THOMAS, RESIDING AT
MATTAPPALLIL HOUSE, ATTAPPALLAM KARA, ATTAPPALLAM P.O., KUMILY VILLAGE,
PEERMADE TALUK, IDUKKI DISTRICT, KERALA-685509.
4 GOPALAKRISHNAN,AGED 54 YEARS, S/O. KUMARAVELU, RESIDING AT PUTHENPURACKAL
HOUSE, ALADY K CHAPPATH P.O., AYYAPPANKOVIL VILLAGE, UDUMBANCHOLA TALUK,
IDUKKI DISTRICT, KERALA-685505.
5 SOMAN KUNJUKUNJU,AGED 53 YEARS, S/O. KUNJUKUNJU, RESIDING AT MATTATHIL
HOUSE, PULLIKKANAM P.O., VAGAMON, VENGAMON VILLAGE, PEERMADE TALUK, IDUKKI
DISTRICT, KERALA-685509.
BY ADVS.SRI.T.KRISHNANUNNI (SR.)
SRI. DEEPU LAL MOHAN
SRI. VINOD RAVINDRANATH
SRI. MEENA.A.
SRI. K.C.KIRAN
SRI. M.R.MINI
SRI. RAVI KRISHNAN
SRI M.DEVESH
SRI ASHWIN SATHYANATH
SRI ANISH ANTONY ANATHAZHATH
SRI. THAREEQ ANVER K.
THIS ELECTION PETITION HAVING BEEN FINALLY HEARD ON 22.05.2024 THE COURT ON
31.05.2024, DELIVERED THE FOLLOWING:
Election Petition No. 10 of 2021
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MARY JOSEPH, J.
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Election Petition No. 10 of 2021
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Dated this the 31st day of May, 2024
JUDGMENT
This is a petition filed under Sections 80, 80A and 81, 82,
83, 84 read with Sections 100(1)(a), (d) and 101 of the
Representation of the People Act, 1951 (for short, 'the R.P Act').
2. Petitioner contested the general election to the Kerala
Legislative Assembly held on 06.04.2021 as a candidate of Indian
National Congress(I) with 'hand' as symbol from 092 Peermade
Assembly Constituency. The first respondent contested the
election from 092 Peermade Assembly Constituency as a
candidate of Communist Party of India with 'Ears of Corn and
Sickle" as symbol. Second Respondent contested the election as
a candidate of Bharatiya Janatha Party with "Lotus" as symbol.
Third respondent contested the election as a candidate of
Bahujan Samajwadi Party with "Elephant" as symbol.
Respondents 4 and 5 were independent candidates who
contested the election with symbol respectively as "Battery
Torch" and "Candles".
Election Petition No. 10 of 2021
3. Respondent No.1 got 1835 votes over and above the
Election Petitioner and therefore on 02.05.2021, the returning
officer declared respondent No.1 as won the election.
Respondents 2 to 5 were the other candidates contested the
election from 092 Peermade Assembly Constituency with symbol
"Battery Torch" and "Candles" respectively.
4. Votes were counted on 02.05.2021 and respondent No.1
secured 60141 votes, petitioner, 58306 votes, the 2 nd
respondent, 7126 votes, the 3rd respondent, 818 votes, the 4th
respondent, 251 votes and the 5 th respondent, 248 votes. Thus
the returning officer declared respondent No.1 as elected by
1835 votes.
5. It was contended that the 1st respondent was holding an
office of profit under the State Government as Chairman of
Kerala State Warehousing Corporation (for short ' Corporation')
at the time of his nomination and he was using a vehicle as well
as accommodation provided by the Government, but those
factums were suppressed by him in the nomination. He failed to
produce the no dues certificate alongwith the nomination.
According to him, every person contesting an election as a
candidate shall furnish full and complete information in an
Election Petition No. 10 of 2021
affidavit sworn to before a Magistrate of First Class or a Notary
Public or a Commissioner of Oaths appointed by the High Court
of State Concerned and non-furnishing of one such shall be
considered as violation of the direction issued in that regard and
the nomination filed shall be rejected by the returning officer at
the time of its scrutiny itself. Penal consequences under the
Indian Penal Code, 1860 would follow, for furnishing wrong
information to a public servant or suppression of material facts
from him.
6. Therefore, it was the duty of the returning officer to
check whether all information required is fully furnished in the
affidavit filed alongwith the nomination. According to him, the
information called for is very vital as the people voting are
entitled to be informed of those particulars while exercising their
right to vote. The returning officer shall also remind the
candidate to fill, spaces which are kept blank in the affidavit and
if the candidate failed to do so, it is open to the returning officer
to reject the nomination. According to him, there is a specific
direction in the affidavit itself that no column shall be kept
vacant.
Election Petition No. 10 of 2021
7. According to him, the affidavits submitted by respondent
Nos.1 and 3 to 5 alongwith the nomination as envisaged under
Section 33A of the R.P. Act and Rule 4(A) of the Conduct of
Election Rules, 1961 are incomplete so far as paragraph No.4, Sl.
Nos.2 to 6 of Column No.5 is concerned. The names of the
dependants of respondent Nos.1 and 3 to 5 were not mentioned
in Column No.2 of paragraph 4. In Column No.1 of the affidavit,
paragraph 7A where the money in hand of respondents 2 and 4 is
meant to be mentioned, columns were kept blank by the
respondents. Moreover, the affidavits filed by respondents 2 and
4 was not verified and correctness certified by a Notary.
8. Respondent No.1 submitted an affidavit prepared in
English on 18.03.2021. On reminding him about the defects in
that by the returning officer, he filed a fresh affidavit in
Malayalam on 19.03.2021, which also carried defects of
substantial character.
9. Sl.No.1, Column No.5 of paragraph 4 of the affidavit in
Malayalam, the gross income for one of the five financial years
viz. 2015-2016 is called upon to furnish was kept blank.
Respondent No.1 also omitted to mention in paragraph 4 the
information, called for, in Column No.4 whether his dependents
Election Petition No. 10 of 2021
had filed returns of Income Tax for any of the preceding five
financial years, "Not Applicable" was shown, against Sl.Nos.2, 4
and 5. Similarly, names of the dependents are not furnished
against Sl.Nos.4 and 5 of column No.2 of paragraph No.4. The
information called for regarding the financial year in which return
of income tax has been lastly filed by the spouse and dependents
are also shown 'as not applicable' as per Sl.Nos. 2, 4 and 5 of
column No.4 of paragraph No.4. Against Sl.No.2 of column No.3
of the affidavit, where the information meant to be furnished
regarding the PAN of Smt.Bindu Soman, the spouse of
respondent No.1 was shown, "PAN not allotted". Smt. Bindu
Soman was working as LIC Agent since ten years, the crucial
date of filing of the affidavit and was having a PAN in her favour
and income tax returns was also filed. Therefore, an incorrect
information about the spouse was furnished in Sl.No.2 of
paragraph 4 of the affidavit.
10. In Sl.No.(ii) of paragraph 7A of the affidavit, where the
particulars of deposits in the bank accounts were called for, the
number of the accounts maintained by respondent No.1 was not
shown. Likewise the LIC policy number was also not furnished in
Election Petition No. 10 of 2021
the column against Sl.No.(iv) of paragraph 7A. The amount in
deposits is shown but not the details of the deposits.
11. As per column No.(ii) respondent No.1 was also called
upon to furnish the model of the vehicle. In Sl.No.(vi) of
paragraph 7A of the affidavit, particulars, except the model of the
vehicles possessed by respondent No.1 and his dependants were
shown. Respondent No.1 has also omitted to mention the number
of the Life Insurance Certificate possessed by him and the bonus
accrued on it in Sl.Nos.(iv) and (viii) of column No.2 of paragraph
7A.
12. Respondent No.1 also suppressed the information about
holding an office of profit under the Government and use of
Government accommodation and vehicle, in paragraph 8 of the
affidavit. He also failed to obtain certificate of no dues towards
electricity charges, water charges, telephone charges and
charges arising out of use of Government vehicle from the
authority concerned where he was officiating. He also failed to
state the address of his Government accommodation and dues
towards the charges mentioned above under Sl.No.(ii) of
paragraph 8 of the affidavit. Instead, Respondent No.1 had
mentioned 'Not applicable' in column No.3. Though column No.3
Election Petition No. 10 of 2021
specifically directs production of 'no dues certificate', respondent
No.1 failed to do so. Though respondent No.1 was using the
Government vehicle allotted to him, being Chairman of the
Corporation, he had stated 'Not Applicable' in the column meant
for mentioning the particulars. Thus, he has suppressed the
information about the dues if any he had to the Government
Department dealing with official conveyance. According to the
learned counsel for the Election Petitioner, the defects to which
attention was drawn by him were of substantial character.
13. Despite the information furnished by the returning
officer through notice issued and granting of sufficient
opportunity to supply the information omitted, respondent No.1
failed to do so and therefore the nomination paper ought to have
been rejected by her. An affidavit was filed availing the
opportunity, but for failure to furnish the details called for,
respondent No.1 can only be taken to have availed the
opportunity to rectify the errors. Therefore, there was every
reason for the returning officer to reject the nomination paper
filed by respondent No.1.
14. It was urged in the backdrop that a returning officer is
supposed to discharge his duty as such with utmost fairness,
Election Petition No. 10 of 2021
impartiality and to treat all candidates equally. But the returning
officer in the case on hand by accepting the nomination paper of
respondent No.1 with all the defects pointed out as existing in it
and the affidavit filed alongwith has acted arbitrarily without
judicial detachment in a partisan manner.
15. On 20.03.2021, a statement of objection was filed by
one Mr.Sabu Thomas before the returning officer, pointing out
the defects in the affidavit in Malayalam as well as nomination
paper submitted by respondent No.1 before it. The Election
Petitioner also made oral objection through his advocate before
the returning officer regarding the nomination filed by other
respondents, pointing out that the affidavits filed by them are
incomplete in particulars called for under item No.4, Sl.No.2 to 6
of Column No.5. Columns where, the details of the dependents
of the other contesting candidates and the cash in their hand of
respondents 2 and 4 have to be mentioned, are also kept blank.
The affidavits of respondent Nos.2 and 4 were also alleged as not
verified and correctness certified by the Notary Public.
Accordingly, the Election Petitioner urged that the nomination
paper and the affidavit were filed by respondents with defects
and suppressing even informations of substantial nature.
Election Petition No. 10 of 2021
According to him, neither the objection raised by the Election
Petitioner orally on his own nor in writing, through Adv.Sabu
Thomas pointing out material defects were not considered by the
returning officer. According to him, the returning officer has
issued a reply to the Election Petitioner on 20.03.2021 stating
that the defects pointed out in the objection are not of
substantial character and thus the nomination paper was
received. According to him, the returning officer ought not to
have accepted the nomination papers of respondent No.1 and
also other respondents.
16. According to the learned counsel, if the nomination
papers of respondents 2 to 5 were rejected, the Election
Petitioner alone would remain as candidate and therefore there
was every chance for him to win the election and the returning
officer ought to have been declared him as won the election. In
the above context, the Election Petition was filed and the
following reliefs are sought:
"i) Declare that the election of the 1 st respondent from No.92
Peermade legislative Assembly Constituency, declared on 2 nd May,
2021 is null, void and inoperative and therefore set it aside.
ii) Declare that the result of election in so far as it concerns
the first respondent has been materially affected by improper
acceptance of the nominations of himself and other respondents.
Election Petition No. 10 of 2021
iii) Declare that the petitioner being the next candidate
having secured the highest number of votes and whose nomination
alone ought to have been accepted is the duly elected candidate in
the election held on 6 th April, 2021 from No.92 Peermade Legislative
Assembly constituency.
iv) Allow cost of the petitioner to the petitioner.
v) Grant such other and further reliefs as this Hon'ble Court
deems fit and proper in the circumstances of the case."
17. Alongwith the Election Petition, the relevant materials
with reference to which the allegations were made are also
produced. The learned counsel has also placed some rulings
relied on by him to support his arguments.
18. Respondent No.1 filed written statement in the Election
Petition raising contentions as follows:
The Election Petition is not properly verified in accordance
with law. Annexures I and II have also not been verified
properly. The source wherefrom those were received by the
Election Petitioner was not stated and therefore, those are
inadmissible in evidence.
19. Respondent No.1 was not holding an office of profit
under the State Government at the relevant time of submission
of nomination. He tendered resignation from the post of the
Corporation on 16.03.2021, and following it's acceptance, a
Election Petition No. 10 of 2021
Government Order was issued on 17.03.2021. Therefore, he was
not using accommodation or vehicle provided by the Government
at that point of time. It was stated that no dues certificate was
shown to the returning officer and copy of that was also
produced alongwith the written statement. He has paid income
tax only for 4 years preceding the submission of nomination and
therefore that the column with reference to the financial year
2015-16 was kept blank. In fact during 2015-16, taxable
income was not there for him and therefore tax was not paid.
PAN of dependents are shown in Sl.Nos.4 and 5 of Column No.3,
but their names were not mentioned and it was due to an
inadvertent omission. Dependents were not income tax assessees
during that period. His spouse was not an income tax assessee
during that period as she then was only an LIC agent and has no
taxable income. The contention that the spouse of respondent
No.1 has PAN and income tax was paid by her, cannot be
accepted for want of any materials to support. True that
omissions were there in the affidavit filed alongwith the
nomination, but, those are being in substantial in character,
the returning officer is justified in accepting the same.
Election Petition No. 10 of 2021
20. It was stated further that in Sl.No.(ii) of paragraph 7A
necessary particulars are mentioned. In Sl. No.iv, vi and viii also
details of investments are given. Respondent No.1 was not
receiving any bonus from LIC policies. The defects pointed out
with reference to Serial Number referred to are of in substantial
character and cannot form basis for rejection of the nomination
paper by the returning officer. Respondent No.1 was not holding
an office of profit at the relevant time when he filed the
nomination. It was contended that he was also not using any
accommodation or vehicle provided by the Government then and
he does not have any dues to be remitted or paid in connection
with the office he was holding. Necessary particulars with
reference to those being mentioned in paragraph 8, the defects
alleged are not of substantial character.
21. The returning officer had never given notices pointing
out errors in the affidavit to him. He did not submit any
additional affidavit rectifying the defects pointed out. Two sets of
nomination were submitted alongwith affidavit in English and
Malayalam.
22. At the time of scrutiny, he submitted that the
nomination accompanied by affidavit in Malayalam can be
Election Petition No. 10 of 2021
accepted by the returning officer and thus after necessary
scrutiny, it was accepted. Had the returning officer issued
notice, pointing out defects if any, he would have corrected those
and re-submitted the nomination and the affidavit. Instead, he
was not given any opportunity to correct errors if any, in the
affidavit. Thus, he denied to have suppressed any relevant
materials or information in the affidavit filed by him.
23. It was contended that the returning officer has never
acted with any prejudice as alleged. She has acted impartially
and treated everyone equally. It is incorrect to say that she was
member of a political party holding the port folio revenue. On
finding that the defects now pointed out in the Election Petition
were not of substantial character, the nomination of respondent
No.1 was accepted by the returning officer. The observations
made by the Apex Court in Kisan Shankar Kathore v. Arun
Dattatray Sawant and Others [(2014)14 SCC 162] are not
applicable in the case on hand since the alleged defects in the
affidavit to which attention was drawn by the Election Petitioner
was of insubstantial character.
24. It was contended furthermore that the particulars
constituting a complete cause of action are not pleaded in the
Election Petition No. 10 of 2021
Election Petition on hand. The materials relied on by the Election
Petitioner and appended to the Election Petition were not
properly verified and its correctness certified and therefore are
inadmissible in evidence. The Election Petition deserves to be
dismissed, invoking Order VII Rule 11 of the Code of Civil
Procedure, 1908. Accordingly he seeks for accepting the
contentions and dismissing the Election Petition. He has also
produced the letter sent by him to the Secretary, Department of
Agriculture, Government Secretariat, Thiruvananthapuram on
16.03.2021, tendering resignation from the post of Chairman,
Corporation, the proceedings dated 17.03.2021 issued by the
Additional Secretary of Government by Order of Governor
accepting the resignation, certificate dated 17.03.2021 issued by
the Managing Director of the Corporation certifying that the
respondent has no dues with the Corporation as on date,
certificate issued by the Branch Manager of the Life Insurance
Corporation Vandiperiyar certifying that neither any dividend,
nor interest was paid to respondent No.1.
25. Replication was filed by the Election Petitioner stating
that the defect noted in the verification of the Election Petition
was not stated in the written statement filed by respondent No.1
Election Petition No. 10 of 2021
and therefore the allegation is a vague one, that respondent
No.1 has stated in the affidavit (Paragraph 8) that he was not
using vehicle or accommodation of Government at the time of
submission of nomination. Whereas what actually he has to state
was whether he has used Government accommodation during the
past ten years prior to the date of submission of the nomination.
Respondent No.1 had never shown the 'no dues certificate' to
the returning officer as alleged. Respondent No.1 has not
produced the 'no dues certificate' alongwith the affidavit, which
was required to be produced. Mere showing of that to the
returning officer will not suffice. Respondent No.1 used to avail
the guestroom of the Corporation. It has been obtained by one
Mr.Biju Modiyil under the Right to Information Act, 2005 from the
State Public Information Officer, by letter dated 03.11.2021 that
respondent No.1 used to avail accommodation facility at the
Guest House of the Corporation, the letter and copy of it's
translation were appended to as (Annexure IX) and IX(a)
respectively. Having availed the Guest House of the Corporation
for accommodation, respondent No.1 was bound to state the
details of that in the affidavit and failure to state so would
Election Petition No. 10 of 2021
tantamount to suppression of relevant particulars in the affidavit
sworn to by him and that is a defect of substantial character.
26. Evenif respondent No.1 had no taxable income to pay
income tax during the financial year 2015-16 he had to state so
in the affidavit rather than keeping the Column meant for blank.
Omission of the nature is a defect of substantial character, when
viewed in the light of the directions issued by the Apex Court in
Resurgence India v. Election Commission of India and
Another [(2014) 14 SCC 189]. Likewise, omission to furnish the
names of dependents in the affidavit is also a material defect
vitiating nomination. Income tax dues have been deducted by
the LIC from the amount due to the wife of respondent No.1 by
way of LIC commission.
27. Respondent No.1 had not denied the averment of the
Election Petitioner that his wife was having a PAN and had filed
returns at the Income Tax Department in the written statement
filed. Respondent No.1 is bound to furnish the correct
information and mentioning, 'Not applicable' against a column
would not satisfy the requirement of furnishing of the actual
information. Though it was contended that necessary particulars
regarding the bank account of the respondent No.1 were
Election Petition No. 10 of 2021
furnished, it is incorrect since the bank account number, the
type of account maintained, details of Fixed Deposits, number of
the LIC certificate, name of the LIC scheme, period of the policy,
model and type of the vehicle, year of it's manufacture, bonus
obtained from the LIC and interest on deposits having not been
furnished, undoubtedly there is suppression of material facts in
the affidavit. Instead of writing 'yes' or 'No' to a query, whether
accommodation facility or vehicle provided by the Government
had been used by respondent No.1 in the column meant for
furnishing, he has written 'Not applicable' and that tantamount
to suppression of material aspects relevant in the affidavit.
28. Omission to make a mention about the dues to the
Corporation, towards Electricity, water, and telephone in the
affidavit and non-furnishing of ' no dues certificate' certified by
an officer of the Corporation concerned is also crucial.
29. The returning officer is not bound to provide an
opportunity to 1st respondent No.1 to cure substantial defects or
supplement the suppressed facts. The returning officer failed to
evaluate the mandatory directions issued by the Apex Court in
Resurgence India supra while scrutinising the nomination of
respondent No.1.
Election Petition No. 10 of 2021
30. The documents appended to the written statement filed
by respondent No.1 are devoid of basis and therefore are liable
to be discarded and the Election Petition is only to be allowed.
31. The following points are framed for consideration in the
Election Petition.
"1. Whether nomination paper of the 1 st respondent ought to
have been rejected by the Returning Officer as the 1 st respondent
did not fill up the mandatory columns and did not answer certain
mandatory columns by marking the remarks "Not Applicable", in
his affidavit filed in support of his nomination paper and whether
his election is liable to be set aside ?
2. Whether election of the 1st respondent is liable to be set aside
on the grounds that he suppressed material facts and furnished
false answers in his affidavit filed in support of his nomination
paper and that he did not produce 'no dues certificate" in respect
of his Government accommodation and usage of Government
vehicle ?
3. Whether nomination papers of the respondents 2 to 5 ought
to have been rejected by the Returning Officer as they did not fill
up the mandatory columns and did not answer certain mandatory
columns, in their affidavit of the respondents 2 and 4 were not
properly authenticated and attested by the notary public ?
4. Whether the result of the election of the 1 st respondent has
been materially affected by improper acceptance of nomination of
the 1st respondent and the respondents 2 to 5 by the Returning
Officer ?
5. Whether the election of the 1 st respondent to the
Peermedu Legislative Assembly Constituency No.092 held on
06.04.2021 is liable to be declared void and set aside and
Election Petition No. 10 of 2021
whether it is liable to be declared that the petitioner is duly
elected in the said election, the petitioner being the only
candidate who only validly submitted nomination paper ?"
32. Witnesses and the Election Petitioner were examined as
PWs 1 to 6 and documents were marked as Exts.A1 to A9, A9(a),
X1 to X3 and Ext.X1(a) to X1(k). RWs 1 to 3 were examined and
Exts.R1 to R4 were marked on the side of respondent No.1.
33. Mr.Sabu Thomas, an advocate and election agent of
the Election Petitioner was examined as PW5. According to him,
Sobin Soman and Sobith Soman are practising lawyers at
Irinjalakkuda Courts and they are children of Mrs.Vazhoor Soman
(Respondent No.1). Mr.Sobin commenced his practice in the
year 2015 and married also. Mr.Sobith Soman started his
practice in the year 2020 and concentrated mainly on labour
laws and was not in regular practice in courts. According to him,
Mr.Vazhoor Soman submitted two nomination papers and in the
affidavit filed alongwith one, defects were noticed by the
returning officer and a leading question was put, whether the
second nomination was accepted stating the defects as of
insubstantial nature, he answered, defects were there, but being
influenced by the then ruling party, the nomination alongwith the
Election Petition No. 10 of 2021
affidavit was received. According to him, he was having standing
as a lawyer for 31 years and had visited the booth not as a
representative of election, but to clarify from the returning
officer whether, the nomination is to be submitted before 3 p.m.
He overheard the above from the mouth of the Assistant
Returning Officer. According to him, objection was filed at the
time of scrutiny of nomination. According to him, he had also
signed it alongwith the Election Petitioner. According to him, an
order was also passed by the returning officer stating that the
defects found in the affidavit are not substantial ones.
34. The returning officer was examined as PW6. According
to her, during election to the Peermade Legislative Constituent
Assembly, she being the Assistant Cardamom Settlement Officer,
acted as returning officer.
35. The file relating to the above election was shown to
her. On her identification, the affidavits laid by respondent No.1,
Sri.Nagaraj, Sri.Biju Thomas, Sri.Gopalakrishnan and Sri.Soman
Kunjukunju, alongwith their nominations were identified by her
as Exts.X1(a) to X1(f) respectively. She also identified the
objection laid by Mr.Cyriac Thomas against the affidavit of
respondent No.1, through his agent, Mr.Sabu Thomas (PW5), the
Election Petition No. 10 of 2021
order passed on 20.03.2021 by herself as returning officer
discarding the objection, the result sheet of the election held on
06.04.2021 and the final result sheet of the election. Those were
marked in evidence respectively as Exts.X1(g) to X1(j).
36. According to her, column No.5 of paragraph 4 of
Ext.X1(a) is meant to furnish the total income of the candidate
for five years immediately preceding the submission of
nomination is to be shown. According to her, the last row of
column No.5 was kept blank. In Sl No.2, PAN was stated as not
allotted to Mrs.Bindu Soman and the column meant to furnish
the income of Mrs.Bindu Soman, was left blank. According to
her, 'Not applicable' is written against the row meant for writing
the last financial year in which the return was filed. According to
her, in the affidavit the particulars of the dependents of
Sri.Vazhoor Soman mainly, the names of the dependents are not
furnished. According to her, except the amount in deposit,
details of the bank account and LIC were not furnished.
According to her, the model of the vehicles as well as the year of
purchase of those were not furnished. According to her, the word
'അല്ല' was written against a query in the format of the affidavit,
whether he had availed the accommodation facility provided by
Election Petition No. 10 of 2021
the Government. According to her in the affidavit filed in English
also, the answer was in the negative.
37. According to her, the affidavit shall be submitted in the
format of form No.26, and she received the one prepared in
malayalam. She would also state that against the column where,
address, and the dues of the candidate towards water charges,
telephone charges and electricity charges, it was written as 'Not
applicable' by respondent No.1. According to her, certificate of
no dues shall also be furnished alongwith the affidavit, but was
filed. According to her, against the columns meant for furnishing
the income at the time of filing returns of income tax and
Government vehicle also 'Not applicable' was also shown.
38. The affidavit was also not authenticated by a Notary.
The amount held in possession was not shown in the affidavit.
According to her, nomination paper was accepted after examining
the handbook for returning officer, checklist for returning officer
and handbook for candidates.
39. During cross examination witnesses identified the
nomination paper submitted by respondent No.1 as Ext.X1(a)
and admitted Ext.X1(g) as the only objection received against
the nomination of Sri.Vazhoor Soman. According to her, being
Election Petition No. 10 of 2021
convinced that the defects pointed out in the objection were not
substantial ones, that an order was passed by her on
20.03.2021. In re-examination, she had gone to the extent of
stating that oral objections were raised but, the order was
passed discarding those.
40. The Assistant Cardamom Settlement Officer was
summoned to furnish the Election file and on appearance was
examined as PW1. She has produced the election file and
marked in evidence as Ext.X1. According to her, the returning
officer of the election retired from service on 31.03.2022.
41. The Joint Manager of the Corporation who was also the
Public Information Officer, was examined as PW2. According to
him, since 2016, he was working in that capacity. She identified
her signature in the reply dated 03.11.2021 sent against the
application put by one Mr.Biju Modiyil on 08.10.2021 and marked
in evidence as Ext.X2. During cross examination, he deposed
that accommodation was not earmarked by the Government for
the Chairman of Ware Housing Corporation. Guest room is only
a small room attached to the office of the Corporation and the
members of Board of Directors used to take rest there during
their official visits and no register is maintained in the office with
Election Petition No. 10 of 2021
regard to the year. According to him, Mr.Vazhoor Soman had
used the guest room for the purpose of rest as well as for stay
while he was holding the post as Chairman of the Corporation.
According to him, only when the guest room was unsuitable for
accommodation, as if, during floods, he opted to reside outside.
42. The income tax officer of Ward No.1 of Thodupuzha was
examined as PW3. According to her, she was working so since
2009. According to her, though she was asked to produce the
returns filed by Smt.Bindu Soman, she did not, for the reason
that returns were not filed by her during the period. According to
her, PAN was allotted to her, having number PAN-BRE PS 9259 K
and she was an income tax assessee also. According to her, PAN
was deducted at source from her income during 2019-2020.
According to her, as per the records available at the income tax
Office, Mrs.Bindu Soman was working as agent of the LIC as well
as in a Vodafone company and returns were also filed during the
financial years 2009-2010 and 2011 - 2012. According to her, if
the income falls excess of Rs.2,50,000/-, filing of returns are
mandatory.
43. The system generated copy of a receipt evidencing
payment of income tax for the period referred to was produced
Election Petition No. 10 of 2021
and is marked in evidence as Ext.X3. During cross examination,
it was clarified through her the allotment of PAN in the year 2008
and that income tax returns were not filed by her except for the
period stated during examination in chief. Respondent No.1
deposed as RW1. In the proof affidavit filed in lieu of
examination in chief, he reiterated the contentions raised in the
written statement filed in the Election Petition.
44. Admittedly, he held the office of Chairman of the
Corporation from 26.12.2016 till 16.03.2021. According to him,
it was a project where the Central as well as the State
Government have equal participation. According to him, the
affidavit in English and Malayalam were signed by him after being
convinced of it's contents. According to him, the affidavit
prepared in English was given first and the one in Malayalam,
later.
45. According to him, the facts sworn to in both affidavits
are true ones. According to him, the 5 th column of paragraph No.
4 of the affidavit was not filled up for the reason of not holding
the office of Chairman of the Corporation and tax was not
deducted at source for that period. According to him, where the
information sought from him appears as not applicable, he left
Election Petition No. 10 of 2021
those blank. According to him, in the column meant for showing
the PAN, it was written as not allotted, for the reason that his
wife was then out of station. According to him, the column was
filled accordingly based on the information procured by his son
over phone from his wife. According to him, the affidavit was
prepared by his son Mr.Sobin Soman who was a lawyer by
profession. According to him, the nomination paper was read in
full prior to signing and the affidavit was prepared by his son in
a hurry and when questioned on the basis of the relevant
column, whether he had put the signature in the affidavit after
being convinced of the information furnished with reference to
PAN he did not respond. He pleaded ignorance about allotment
of PAN to his wife and stated that only on questioning his wife
and son who prepared the affidavit, the incorrectness of the
information could be ascertained. According to him, he was
aware of the objection raised by the Election Petitioner against
the facts sworn to in the affidavit filed in Malayalam that PAN
card was not allotted to his wife from the Income Tax
Department. According to him, even at the time of filing of the
written statement, he did not get a clarification regarding the
factum from his wife. Due to busy schedule of life, he could not
Election Petition No. 10 of 2021
get it clarified even at the time of preparation of the proof
affidavit. Prior to proceeding to this Court for examination as a
witness in the Election Petition also, he could not get convinced
of the allotment of PAN from the Income Tax Department in
favour of his wife.
46. According to him, his wife was a member of Consumer
Dispute Redressel Forum, Idukki (for short 'CDRF') for two
terms, but could not re-collect the exact period. According to
him, the information that his wife was not allotted PAN was not a
deliberate misrepresentation, but a non-willful omission due to
his lack of knowledge. Admittedly, a Government vehicle was
allotted to him during his tenure as Chairman of the Corporation
and a Board of his official capacity was also exhibited at the time
of it's use. He had also stayed in the Government Guest House
during official visits, after obtaining sanction from the
Government. According to him, the guest room attached to the
office of the Corporation was also used by him particularly,
during times of flood. According to him, during his official visits
at the 14 Districts, he stayed at the Government Guest Houses
and the guest room which is permissible also. According to him,
the rentals prescribed by the Government was not paid by him
Election Petition No. 10 of 2021
but only by the Corporation. According to him, 'No dues
Certificate' which he was called upon by the format of affidavit
was produced before the returning officer at the time of scrutiny
after filing of the nomination. According to him, his nomination
was accepted by the returning officer since the no dues
certificate was furnished by him. After going through the
relevant part of the affidavit he deposed that against the column
meant for furnishing the above details, 'Not applicable' was
written by him. According to him, it is impossible to furnish the
details of the government accommodation made use by him and
therefore, filled with 'Not applicable'. He has also stated that
payments were made by him on all occasion of his use of
Government Guest houses of stay.
47. According to him, against the columns meant for
furnishing details of payment of dues towards water charges,
electricity charges, and telephone charges also, 'Not applicable'
was written genuinely since those are inapplicable. When the
additional written statement filed by him on 14.06.2022 was put
to him, he admitted as stated about the issuance of PAN by the
Income Tax Department, to his wife and when confronted with
the statement given by him during examination in the Court that
Election Petition No. 10 of 2021
he was unaware of the issuance of the PAN, he stated the latter
say as correct. He also clarified stating that he had stated so in
the additional written statement after getting the same clarified
from his wife.
48. Admittedly, entire details called for regarding the bank
account, deposits made there and names of dependents were
not furnished. According to him, his wife and children were not
dependent on him and therefore, information was not furnished
in that regard. But when confronted with a relevant column in
the affidavit, he admitted that the children were shown as
dependents 1 and 2. Admittedly he passed SSLC, PDC, Electrical
Engineering and Diploma in Social Sciences but in the affidavit
filed in Malayalam alongwith the nomination, the educational
qualification was shown as SSLC only.
49. According to him, due to limitation of time he could not
trace out the certificates with reference to those and therefore it
was stated so. But, when confronted with regard to the non
requirement to furnish certificates of educational qualification, he
did not respond. According to him, immovable properties held
jointly by himself and his wife were shown in the affidavit filed in
English, whereas in the affidavit filed in Malayalam, it was not
Election Petition No. 10 of 2021
stated that any immovable properties belongs to him. According
to him, 'no dues certificate' was furnished to the returning officer.
But, when confronted with his statement during examination
that the one produced alongwith his written statement is the
original, he deposed to have no idea, whether it is original or a
copy of it.
50. Admittedly, 'no dues certificate' filed before the
returning officer, could not be located from the Election file
marked in evidence as Ext.X1.According to him, the defects in
the affidavit filed in English when pointed out by the returning
officer, he has filed the one in Malayalam. He denied the
suggestion put to him that the omissions and the answers
furnished as 'not applicable' wrongly are only meant to suppress
the real facts.
51. He clarified during re-examination that official
accommodation was not earmarked and allotted to him while
holding the post of Chairman of the Corporation, and whenever
facilities of accommodation provided by the Government Guest
Houses, were availed by him, the rentals were also paid by him
then and there.
Election Petition No. 10 of 2021
52. Adv.Sobin Soman, the eldest son of respondent No.1
was examined as RW2. According to him, the affidavit was
prepared by him after being convinced of the instructions issued
by the Election Commission, but, he had not read the directions
issued by the Apex Court in the form of guidelines in
Resurgence India supra. According to him, the affidavit filed
by his father on 18.03.2021 was prepared by one
Mr.Sreekumar, his clerk in his presence. He could not recollect
whether it was read by him. He denied the suggestion that since
the defects in the affidavit filed firstly were pointed out, that the
second affidavit was filed.
53. He deposed as if it did not come to his notice that
several columns in the affidavit filed on 18.03.2021 were kept
blank and could not recollect whether any columns in the
affidavit filed in Malayalam on 19.03.2021 were kept blank. He
added by stating that as he recollects, all columns were filled up.
When confronted with the columns left blank, he took a stand
that, to his understanding, relevant columns alone need to be
filled up. According to him it was incorrect to say that the
columns were left blank with a view to suppress anything.
According to him, though he is attached to the office of his
Election Petition No. 10 of 2021
Senior, he has been doing independent work, since 2015. He
was not financially depending on his parents, since he has
earning of his own. According to him, his brother Adv.Sobith
Soman started practising under him and therefore was under his
financial support. He also has income from cases handled by
him before Gratuity Controlling Authority independently. He
started practising before that authority even prior to his
enrollment since there was no bar against. When confronted
with non-furnishing of the above aspects, his answer was that
the factum that he has independent income is stated. When
confronted with the statement in the affidavit filed that they were
dependents of respondent No.1, he clarified by stating that only
their stay together under a roof was intended thereby. He stated
precisely that, himself and his brother have no financial
dependence on their parents. Admittedly of him, himself and his
brother were not holding immovable properties. According to
him, he contacted his mother prior to the preparation of the
affidavit. According to him, she had been a member of CDRF for
two terms, that is from 2000 till 2005 and 2008 till 2013.
According to him, he has no information that while holding the
Election Petition No. 10 of 2021
office so, his mother has filed returns before the Income Tax
Department.
54. According to him, at the relevant time he has not
started practising an an Advocate. According to him, even at the
time of preparation of the affidavit, though he was an Advocate
then, was not aware that a person receiving salary needs to file
returns. According to him, his mother was receiving only
honorarium for the services rendered by her as a member of
CDRF. Admittedly, his mother was an agent of LIC. According to
him, he came to know that his mother was holding PAN only at
the time of filing of the written statement in the Election Petition
and not prior to that. The wife of respondent No.1 was examined
as RW3. According to her, she was an agent of LIC since 1994,
much prior to assuming the post of member of CDRF. On
assuming the office of the member of CDRF after 2010, she
started to file income tax returns. When confronted with the
factums sworn by her in the affidavit whether income tax returns
have been filed by her through the office of CDRF during
2000-2005 and 2008-2013, she said, what has been stated in
the affidavit is correct. Admittedly, she has PAN but could not
Election Petition No. 10 of 2021
recollect the number as well as the year in which it was received
by her.
55. She deposed from her memory that income tax return
was filed lastly in the year 2013 but denied the suggestion put to
her that income tax returns were filed even after 2013.
According to her, she was fully aware of the PAN issued to her.
When confronted with the version of RW2 about the non-issuance
of PAN based on the information obtained from her, she admitted
that and said, it is incorrect to state that her disclosure as above
was only to justify the statements made by her husband in the
affidavit filed alongwith the nomination paper. According to her,
though she was residing together with her two children and
husband they had not discussed the above aspects prior to the
preparation of the affidavit. According to her, she came to know
the falsity involved in the statement that PAN was not issued to
her, only when summons was received from the court in the
Election Petition. According to her, she informed that to her
husband and children after receiving the summons. According to
her, PAN card was given to the office of LIC as well as CDRF while
working there. She had taken a stand of non-association with
Election Petition No. 10 of 2021
vodafone and loss of her PAN card, but she has not informed
anywhere.
56. Therefore, it is clear from the version of RWs 1 to 3 that
the affidavit filed by RW1 before the returning officer was
defective and those were pointed out to him. According to PW1,
affidavits in Malayalam was filed when the defect in the affidavit
filed primarily in English were brought to the notice of RW1.
According to RW1, affidavits were filed alongwith separate
nominations. According to the returning officer, the affidavit filed
in English Language on 18.03.2021 was defective for several
reasons and those were informed to RW1. Thus, the affidavit in
Malayalam was filed. According to PW1 eventhough the second
affidavit was filed after curing the defects, it has been brought by
PW1 from his own oral evidence and those derived during cross
examination of RWs 1 to 3 that the affidavit filed secondly also
carried defects mostly of the nature of omissions and statements
contrary to actual facts. Even the answers demanded by the
columns in the affidavit were not furnished. Instead, answers
undesired were furnished. It was also brought out during cross
examination of RWs 1 to 3 that the witnesses were inconsistent
in their versions on several aspects.
Election Petition No. 10 of 2021
57. The question relevant for consideration in this context is
whether the omissions, non-disclosures and suppressions in the
affidavits brought out during cross examination of RWs 1 to 3 are
of substantial nature.
58. Counsel representing the rival parties to the Election
Petition has also relied on the dictums laid down by the Hon'ble
Apex Court in various decisions to rest their respective
arguments.
59. In Union of India & Others v. Association for
Democratic Reforms and Others [ 2002(4) SCALE 297]
the Hon'ble Apex Court has issued some directions and the
Election Commission of India in exercise of its powers of
superintendence, direction and control, interalia of conduct of
Elections to Parliament and State Legislatures conferred on it by
Article 324 of the Constitution has ordered, Vide its order
No.3/ER/2003/JS-II dated 27th March 2003 that,
"(1) Every candidate at the time of filing his nomination paper
for any election to the Council of States, House of the People,
Legislative Assembly of a State or the Legislative Council of a
State having such a council, shall furnish full and complete
information in regard to the matters specified by the Hon'ble
Supreme Court and quoted in paras 13 and 14 above, in an
affidavit, the format whereof is annexed hereto as Annexure-1 to
this order.
Election Petition No. 10 of 2021
(2) The said affidavit by each candidate shall be duly sworn
before a Magistrate of the First Class or a Notary Public or a
Commissioner of Oaths appointed by the High Court of the State
concerned.
(3) Non-furnishing of the affidavit by any candidate shall be
considered to be violation of the order of the Hon'ble Supreme
Court and the nomination of the candidate concerned shall be
liable for rejection by the retuning officer at the time of scrutiny
of nominations for such non-furnishing of the affidavit. So too
Election Commission of India vide Order dated 28 th June, 2002,
had ordered that
(4) Furnishing of any wrong or incomplete information or
suppression of any material information by any candidate in or
from the said affidavit may also result in the rejection of his
nomination paper where such wrong or incomplete information or
suppression of material information is considered by the returning
officer to be a defect of substantial character, apart from inviting
penal consequences under the Indian Penal Code for furnishing
wrong information to a public servant or suppression of material
facts before him:"
In Resurgence supra the Hon'ble Apex Court held :
"When a candidate files an affidavit with blank particulars, it
renders the affidavit itself nugatory. For that purpose, the
Returning Officer can very well compel a candidate to furnish
information relevant on the date of scrutiny. We were apprised
that the Election Commission already has a standard draft format
for reminding the candidates to file an affidavit as stipulated. We
are of the opinion that along with the above, another clause may
be inserted for reminding the candidates to fill the blanks with the
relevant information thereby conveying the message that no
affidavit with blank particulars will be entertained. We reiterate
Election Petition No. 10 of 2021
that it is the duty of the Returning Officer to check whether the
information required is fully furnished at the time of filing of
affidavit with the nomination paper since such information is very
vital for giving effect to the 'right to know' of the citizens. If a
candidate fails to fill the blanks even after the reminder by the
Returning Officer, the nomination paper is fit to be rejected."
(emphasis supplied)
A direction was also issued in the case that columns in the
affidavit shall not be left vacant.
60. In Mairembam Prithviraj and Others v. Pukhrem
Sharatchandra Singh and Others [AIR 2016 SC 5087] was
relied on by the learned counsel for the Election Petitioner, the
candidate mentioned his educational qualification as MBA from
Mysore University, which he never did. Respondent in the
Election Petition objected to the nomination paper at the time of
scrutiny stating that false declaration relating to educational
qualification was made by the Election Petitioner. The returning
officer directed him to submit documents in proof of his
educational qualifications as declared in the affidavit filed under
Form 26 but, he failed to produce those. Inspite of the
production of those as directed, the returning officer accepted his
nomination Polling took place and the Election Petitioner who
secured 14,521 votes was declared elected as MLA from the
Election Petition No. 10 of 2021
Manipur Legislative Assembly, on 04.01.2012. That was
challenged in an Election Petition, the High Court of Guwahati
on the ground of improper acceptance of the Nomination and
corrupt practices of the appellant. The Election Petitioner denied
the allegation of false declaration. He also took a stand that the
declaration made by him that he passed MBA from Mysore
University in 2004 was a clerical error. The respondent
abandoned the allegation of corrupt practices and other electoral
Malpractices during the trial of the Election Petition in the High
Court. After careful consideration of the materials on record and
various judgments cited by the parties, the High Court concluded
that the declaration made by the appellant in Form 26 about the
educational qualification, as MBA from Mysore University was
false. The plea of the Election Petitioner that the defect in Form
26 was due to a clerical error was rejected. The contention of
the Election Petitioner that providing wrong information about the
educational qualification was not a defect of substantial character
was also rejected.
61. The High Court of Guwahati held in the above case
that the nomination of the Election Petitioner was improperly
accepted and therefore, the result of his election stood
Election Petition No. 10 of 2021
automatically affected materially. For the reasons, the High Court
declared the election as void. Appeal was filed by the Election
Petitioner before the Hon'ble Apex Court. There also, the
argument advanced was that the declaration pertaining to the
educational qualification was a clerical error and cannot be
termed as a false declaration. It was contended further that it
was not a defect of substantial nature warranting rejection of his
nomination paper. It was also pointed out that there was neither
pleading nor proof in the Election Petition that improper
acceptance of the nomination of the Election Petitioner had
materially affected the result of the election. Accordingly, election
was sought to be maintained.
62. The learned counsel for the respondent pointed out to
the Apex Court, the pleadings taken in the Election Petition and
also the evidence adduced on its' basis. False declaration made
about educational qualification, while contesting election to the
Legislative Assembly in the year 2008 was also pointed out to the
Court by the counsel for the respondent to convince it as not a
clerical error. It was also submitted that a voter has a right to
know the educational qualification of the candidate and any false
or misdeclaration would result in rejection of the nomination of
Election Petition No. 10 of 2021
the candidate. Accordingly, it was canvassed to treat the false
declaration of educational qualification as a defect of substantial
character.
63. The Apex Court has taken note of the press note
issued by the Election Commission of India on 28.06.2002, where
on the basis of the judgment in Union of India v. Association
for Democratic Reforms, it was directed that full and correct
information have to be furnished which include the educational
qualification also. It was mentioned therein that providing
incomplete information or suppression of material information on
any of the five aspects was to be treated as a defect of
substantial character by the returning officer. It was held :
" 18. The contention of the Appellant that the declaration
relating to his educational qualification in the affidavit is a clerical
error cannot be accepted. It is not an error committed once. Since
2008, the Appellant was making the statement that he has an
MBA degree. The information provided by him in the affidavit filed
in Form 26 would amount to a false declaration. The said false
declaration cannot be said to be a defect which is not substantial.
He was given an opportunity by the Returning Officer to produce
the relevant document in support of his declaration. At least at
that point of time he should have informed the Returning Officer
that an error crept into the declaration. He did not do so. The false
declaration relating to his educational qualification cannot be
stated to be not of a substantial character. It is no more res
integra that every candidate has to disclose his educational
Election Petition No. 10 of 2021
qualification to subserve the right to information of the voter.
Having made a false declaration relating to his educational
qualification, the Appellant cannot be permitted to contend that
the declaration is not of a substantial character. For the reasons
stated supra, we uphold the findings recorded by the High Court
that the false declaration relating to the educational qualification
made by the Appellant is substantial in nature." (emphasis
supplied)
64. With regard to the specific argument put by the
respondent that an election cannot be set aside on the ground of
improper acceptance of any nomination without a pleading and
proof that the result of the returned candidate was materially
affected, the Hon'ble Apex Court after referring to various
provisions of law in the R.P Act and also the dictum laid down by
it in Durai Muthuswami v. N.Nachiappan [(1973) 2 SCC 45]
which was canvassed by the learned counsel for the respondent
as not applicable to the facts of the case under reference above,
held :
"23. Mere finding that there has been an improper
acceptance of the nomination is not sufficient for a declaration
that the election is void under Section 100 (1) (d). There has to
be further pleading and proof that the result of the election of the
returned candidate was materially affected. But,there would be
no necessity of any proof in the event of the nomination of a
returned candidate being declared as having been improperly
accepted, especially in a case where there are only two
Election Petition No. 10 of 2021
candidates in the fray. If the returned candidate's nomination is
declared to have been improperly accepted it would mean that he
could not have contested the election and that the result of the
election of the returned candidate was materially affected need
not be proved further. We do not find substance in the submission
of Mr. Giri that the judgment in Durai Muthuswami (supra) is not
applicable to the facts of this case. The submission that Durai
Muthuswami is a case of disqualification under Section 9-A of the
Act and, so, it is not applicable to the facts of this case is also not
correct. As stated supra, the election petition in that case was
rejected on the ground of non-compliance of Section 100 (1) (d).
The said judgment squarely applies to this case on all fours. We
also do not find force in the submission that the Act has to be
strictly construed and that the election cannot be declared to be
void under Section 100 (1) (d) without pleading and proof that
the result of the election was materially affected. There is no
requirement to prove that the result of the election of the
returned candidate is materially affected once his nomination is
declared to have been improperly accepted."(emphasis supplied)
65. The Apex Court has also considered the prayer of the
Election Petitioner to get himself declared to have been elected, but
was declined to interfere with the discretion exercised by the High
Court of Guwahati while holding against, in view of the fact that the
Election Petitioner having been contested the election under one
political party and being declared as elected, joined another political
party.
66. In Brinjendralal Gupta and Another v. Jwala
Prasasd and Others [1960 KHC 726] relied on by the learned
Election Petition No. 10 of 2021
counsel for the Election Petitioner, the Hon'ble Apex Court
considered the question, whether failure to comply with the
provisions of Section 33 would justify the rejection of the
nomination paper and held :
"9. The next question which we must consider is whether in the
case of such an omission it was obligatory on the Returning Officer
to hold an enquiry under S. 36(2) of the Act. The High Court has
held that the Returning Officer ought to have held an enquiry
under S. 36(2)(a) and satisfied himself whether or not respondent 5
was eligible to stand for the election. In our opinion the High Court
was in error in coming to this conclusion. If the nomination paper
of respondent 5 did not comply with the provisions of S. 33 the
case fell squarely under S. 36(2)(b) and the only question which can
arise in such a case is whether or not the defect arising from the
failure to comply with the provisions of S. 33 is of a substantial
character or not. If the defect is not of a substantial character the
Returning Officer shall not reject the nomination paper on the
ground of the said defect; if, on the other hand, the defect is of a
substantial character the returning officer has to reject the
nomination paper on the ground of the said defect, That is the
effect of the provisions of S.36(2)(b) and (4) read together. An
enquiry which is necessary under S.36(2)(a) may and can be held
for instance in cases where the nomination paper shows the age of
the candidate as above 25, but an objection has been raised that in
fact he is below 25 and as such incompetent to stand for election
under Art.173 of the Constitution; in other words, the impugned
nomination has complied with the provisions of S.33 and as such
does not fall under S. 36(2)(b) at all, nevertheless the validity of
the nomination can be challenged on the ground that, in
fact Art.173 is not complied with. Cases falling under
this class must be distinguished from cases falling under
Election Petition No. 10 of 2021
S.36(2)(b). In the latter class of cases the failure to comply with
the provisions of S.33 being established there is no scope for any
enquiry under S. 36(2) (a). Once the alleged non compliance is
proved, the defective nomination falls to be accepted or rejected
according as the defect is of an unsubstantial or of a substantial
character. Therefore, it is not right to hold that even after the
Returning Officer was satisfied that the omission to specify his age
showed that the nomination paper of respondent 5 had not
complied with the provisions of S.33, he should still have held an
enquiry under S. 36(2) (a). Non compliance with the provisions of
S.33 itself would justify the rejection of the nomination paper
provided of course that the defect arising from the non-compliance
in question is of a substantial character. "
67. It was a case where the candidate contesting the
election omitted to make the declaration regarding his age in the
nomination paper. The defect was noticed by the returning
officer in the preliminary scrutiny itself and the nomination was
rejected by him. In a challenge raised by a candidate defeated
in the election, one of the contention was that the nomination of
the above contesting candidate has been improperly rejected by
the returning officer. The question considered was that whether
the improper rejection of nomination of one candidate would
defeat the election as such and it is liable to be declared as void.
68. Election Tribunal found the rejection of the nomination
proper and thus dismissed the Election Petition. The appeal
preferred against before the High Court of Madhya Pradesh at
Election Petition No. 10 of 2021
Jabalpur was allowed for the reason that the candidate offered to
supply the omission at the time of scrutiny, the returning officer
refused to permit him. Therefore, for the reason that the
returning officer failed to hold a summary enquiry before
rejecting the nomination of a contesting candidate, which he was
bound to do, the non-mentioning of age was found as not a
defect of substantial character under Section 36(4) of the Act.
69. In the appeal preferred against, the Hon'ble Apex
Court allowed the appeal, set aside the judgment of the High
Court in the Appeal and thereby confirmed the finding of the
Election Tribunal. The dictum of the Apex Court lies in paragraphs
6,8, 9, 10 & 15. Those are extracted hereunder:
"6. It is clear that S.33 requires that a nomination paper must be
completed in the prescribed form and signed by the candidate and
by the elector of the constituency as proposer. The form prescribed
in that behalf is Form No. 2B. The relevant portion of the prescribed
form reads thus:-
Form 2B.
Nomination Paper
(See rule 4)
Election to the Legislative Assembly of.........(State)
(To be filled in by the proposer)
Election Petition No. 10 of 2021
I hereby nominate................as a candidate for election from
the.................. Assembly Constituency.
1. Full name of proposer..................
2. Electoral roll number of proposer............
3. Name of candidate's ++father/husband..............
4. Full postal address of candidate...........
5. Electoral roll number of candidate...........
Date ...... Signature of proposer.
-----------------------------------------------------------------------------------
(To be filled by the candidate)
I, the above-mentioned candidate, assent to this nomination and hereby
declare-
(a) that I have completed............. years of age;
(b) that the symbols I have chosen are in order of preference
(i) ...............................
(ii) ............................... and
(iii) ...............................
Date Signature of candidate.
*Strike out one of the alternatives as necessary.
Election Petition No. 10 of 2021
It is common ground that the first part of the nomination paper
which has to be filled in by the proposer was in order and the second
part was duly signed by the candidate but failed to declare his age as
prescribed by (a) above. When the Returning Officer noticed this
omission he made an order rejecting respondent 5's nomination. The
brief statement of reasons which the Returning Officer has recorded
shows that he held that the failure of respondent 5 to declare his age
cannot be treated as clerical or technical error, but is of a substantial
nature since declaration as to age was necessary in order to entitle a
candidate to be qualified under Art.173 of the Constitution. The
Returning Officer has also noted that he took the objection suo motu
and rejected the nomination paper of respondent 5. Thus there is no
doubt that respondent 5 has omitted to specify his age before he
signed his nomination paper and in that sense his nomination paper
has not been completed in the prescribed form. The question which
arises for our decision is whether respondent 5's omission to specify
his age in his nomination paper amounts to a defect, and if yes,
whether it is a defect of a substantial character under S.36(4) of the
Act.
8. On the other hand the dictionary meaning of the word "defect" is
"lack or absence of something essential to completeness", and in
that sense omission to specify the age can and would be treated as
a defect under S. 36(4). Defect also means " a flaw or a fault or an
imperfection"; but whether or not it includes an omission must
necessarily depend upon the context in which the word is used. In
our opinion, having regard to the context it would be unreasonable
to hold that the word " defect " under S.36(4) excludes all cases of
omission to specify the details prescribed by the statute in the
nomination paper. We must accordingly reject the appellants'
argument that the omission in question is not a defect under
S.36(4).
10.That takes us to the question as to whether the failure to specify
the age in the nomination paper amounts to a defect of a substantial
Election Petition No. 10 of 2021
character under S.36(4) or not. There is little doubt that the age of
the candidate is as important as his identity, and in requiring the
candidate to specify his age the prescribed form has given a place of
importance to the declaration about the candidate's age. Just as the
nomination paper must show the full name of the candidate and his
electoral roll number, and just as the nomination paper must be duly
signed by the candidate, so must it contain the declaration by the
candidate about his age. It is significant that the statement about
the age of the candidate is required to be made by the candidate
above his signature and is substantially treated as his declaration in
that behalf. That being the requirement of the prescribed nomination
form it is difficult to hold that the failure to specify the age does not
amount to a defect of a substantial character. The prima facie
eligibility of the person to stand as a candidate which depends under
Art.173 of the Constitution, inter alia, on his having completed the
age of 25 years is an important matter, and it is in respect of such
an important matter that the prescribed form requires the candidate
to make the declaration. It would, we think, be unreasonable to hold
that the failure to make a declaration on such an important matter is
a defect of an unsubstantial character. In this connection it is
relevant to refer to the fact that the declaration as to the symbols
which the prescribed form of the nomination paper requires the
candidate to make is by the proviso to rule 5 given a subsidiary
place. The proviso to rule 5 shows that any non compliance with the
provisions of sub-rule (2) of rule 5 shall not be deemed to be a
defect of a substantial character within the meaning of S. 36, sub-s.
(4). In other words, this proviso seems to suggest that, according to
the rule making authority, failure to comply with the requirements as
to the declaration of symbols as specified in rule 5, sub-rule (2),
would have been treated as a defect, of a substantial character; that
is why the proviso expressly provides to the contrary. This would
incidentally show that the failure to specify the age cannot be
treated as a defect of an unsubstantial character.
Election Petition No. 10 of 2021
15. That takes us to the conditions prescribed by S . 19 of the Act of
1950 for registration in the electoral roll. Section 19 provides that
subject to the foregoing provisions of Part III of the said Act every
person who, on the qualifying date (a) is not less than 21 years of
age, and (b) is ordinarily resident in a constituency, shall be entitled
to be registered in the electoral roll for that constituency. Thus when
a presumption is raised under S . 36(7) it may mean prima facie that
the person concerned is not less than 21 years of age and is
ordinarily resident in that constituency; but for the validity of the
nomination paper it has to be proved that the candidate has
completed 25 years of age. Art.173 of the Constitution which
prescribes the qualification for membership of State Legislature
provides that a person shall not be qualified in that behalf unless he
(a) is a citizen of India, (b) is, in the case of a seat in the Legislative
Assembly, not less than 25 years of age, and (c) possesses such
other qualifications as may be prescribed in that behalf by or under
any law made by Parliament. Confining ourselves to the requirement
about age it is obvious that the presumption raised under S . 36(7)
would not be enough to justify the plea about validity of the
nomination paper because the said presumption only tends to show
that the person concerned has completed 21 years of age.It is clear
that in regard to persons between 21 to 25 years of age their names
would be registered in the electoral roll and so they would be
electors if otherwise qualified and yet they would not be entitled to
stand for election to the State Legislature. Thus it would not be
correct to assume that a reference to the certified copy of the
electoral roll would in every case decisively show that the age of the
candidate satisfied the test prescribed by Art. 173 of the Constitution;
in other words, the requirement about the completion of 25 years of
age is outside the presumption under S . 36(7), and that must be the
reason why the prescribed nomination form requires that the
candidate in signing the said form must make a declaration about
his age. This consideration supports our conclusion that the
Election Petition No. 10 of 2021
declaration about the age is a matter of importance and failure to
comply with the said requirement cannot be treated as a defect of
an unsubstantial character." (emphasis supplied)
70. In Brijendralal Gupta supra the Hon'ble Supreme
Court had considered a case where the candidate to the General
Election to the Madhya Pradesh Legislative Assembly from the
Mamendragarh Double Member Constituency had omitted to
make the declaration regarding the age in his nomination paper.
The defect was discovered by the returning officer at the time of
scrutiny of the nomination paper and the nomination paper was
rejected by him. After the polling took place, the votes secured
by the contesting candidates were counted, and two candidates
were declared as duly elected to the General and the reserved
seat respectively. One of the candidate filed an Election Petition
under Section 81 of the Act challenging the election of the
candidates who won the election on several grounds, one among
which was rejection of the nomination paper of the candidate by
the returning officer for non-declaration of the age in the
nomination paper, as improper. He prayed for a declaration that
the election of the candidate is void and to declare him as duly
elected. Election Petition was made over for trial to the Election
Tribunal, Raigarh.
Election Petition No. 10 of 2021
71. The Tribunal held that when the candidate did not
make any attempt to rectify the defect in the nomination paper,
the returning officer could not in law have allowed him to remedy
the defect at the stage of the scrutiny of the nomination and that
the error in the nomination paper being a defect of a substantial
character, rejection of the nomination paper was proper. Thus,
the Election Petition was dismissed by the Tribunal.
72. The Appeal preferred before the High Court of Madhya
Pradesh was allowed holding that respondent No.5 had at the
time of the scrutiny, offered to supply the omission but, the
returning officer refused to allow him to do so and that the
returning officer was bound to make a summary enquiry before
rejecting the nomination paper and that the non-mention of the
age in the nomination paper was not a defect of a substantial
character and therefore, rejection of the nomination paper was
proper. The election thus was set aside by the High Court. In
the appeal by Special Leave before the Apex Court, the argument
mainly advanced was that omission to specify the details
prescribed by the Statute in the nomination paper is not a defect
under Section 32(4) of the R.P Act. The court held:
"8. On the other hand the dictionary meaning of the word
"defect" is "lack or absence of something essential to
Election Petition No. 10 of 2021
completeness", and in that sense omission to specify the age
can and would be treated as a defect under S. 36(4). Defect
also means " a flaw or a fault or an imperfection"; but
whether or not it includes an omission must necessarily
depend upon the context in which the word is used. In our
opinion, having regard to the context it would be
unreasonable to hold that the word " defect " under S.36(4)
excludes all cases of omission to specify the details
prescribed by the statute in the nomination paper. We must
accordingly reject the appellants' argument that the omission
in question is not a defect under S.36(4)." (emphasis
supplied)
73. The question further considered by the Apex Court
was whether it was obligatory on the returning officer to hold an
enquiry under Section 36(2) of the Act. The Apex Court held:
"9. If the nomination paper of respondent 5 did not
comply with the provisions of S. 33 the case fell squarely
under S. 36(2)(b) and the only question which can arise in such
a case is whether or not the defect arising from the failure to
comply with the provisions of S. 33 is of a substantial
character or not. If the defect is not of a substantial character
the Returning Officer shall not reject the nomination paper on
the ground of the said defect; if, on the other hand, the defect
is of a substantial character the returning officer has to reject
the nomination paper on the ground of the said defect, That is
the effect of the provisions of S.36(2)(b) and (4) read
together. An enquiry which is necessary under S.36(2)(a) may
and can be held for instance in cases where the
nomination paper shows the age of the candidate as
above 25, but an objection has been raised that in fact
he is below 25 and as such incompetent to stand for
Election Petition No. 10 of 2021
election under Art. 173 of the Constitution; in other words,
the impugned nomination has complied with the provisions of
S. 33 and as such does Dot fall under S. 36(2)(b) at all,
nevertheless the validity of the nomination can be challenged
on the ground that, in fact Art. 173 is not complied with.
Cases falling under this class must be distinguished from
cases falling under S. 36(2)(b). In the latter class of cases the
failure to comply with the provisions of S. 33 being
established there is no scope for any enquiry under S. 36(2)
(a). Once the alleged non compliance is proved, the defective
nomination falls to be accepted or rejected according as the
defect is of an unsubstantial or of a substantial character.
Therefore, it is not right to hold that even after the Returning
Officer was satisfied that the omission to specify his age
showed that the nomination paper of respondent 5 had not
complied with the provisions of S.33, he should still have held
an enquiry under S. 36(2) (a). Non compliance with the
provisions of S. 33 itself would justify the rejection of the
nomination paper provided of course that the defect arising
from the non-compliance in question is of a substantial
character. " (emphasis supplied)
"10. That takes us to the question as to whether the
failure to specify the age in the nomination paper amounts to
a defect of a substantial character under S. 36(4) or not.
There is little doubt that the age of the candidate is as
important as his identity, and in requiring the candidate to
specify his age the prescribed form has given a place of
importance to the declaration about the candidate's age. Just
as the nomination paper must show the full name of the
candidate and his electoral roll number, and just as the
nomination paper must be duly signed by the candidate, so
must it contain the declaration by the candidate about his
Election Petition No. 10 of 2021
age. It is significant that the statement about the age of the
candidate is required to be made by the candidate above his
signature and is substantially treated as his declaration in that
behalf. That being the requirement of the prescribed
nomination form it is difficult to hold that the failure to specify
the age does not amount to a defect of a substantial
character. The prima facie eligibility of the person to stand as
a candidate which depends under Art. 173 of the Constitution,
inter alia, on his having completed the age of 25 years is an
important matter, and it is in respect of such an important
matter that the prescribed form requires the candidate to
make the declaration. It would, we think, be unreasonable to
hold that the failure to make a declaration on such an
important matter is a defect of an unsubstantial character. In
this connection it is relevant to refer to the fact that the
declaration as to the symbols which the prescribed form of
the nomination paper requires the candidate to make is by
the proviso to rule 5 given a subsidiary place. The proviso to
rule 5 shows that any non compliance with the provisions of
sub-rule (2) of rule 5 shall not be deemed to be a defect of a
substantial character within the meaning of S. 36, sub-s. (4).
In other words, this proviso seems to suggest that, according
to the rule making authority, failure to comply with the
requirements as to the declaration of symbols as specified in
rule 5, sub-rule (2), would have been treated as a defect, of a
substantial character; that is why the proviso expressly
provides to the contrary. This would incidentally show that the
failure to specify the age cannot be treated as a defect of an
unsubstantial character." (emphasis supplied)
74. In Kisan Shanker Kathore supra a voter challenged
the election of a candidate who was declared elected to the
Election Petition No. 10 of 2021
Legislative Assembly from Ambernath Constituency contending
that the latter's nomination has been improperly accepted by the
returning officer, though he suppressed the dues payable to the
Government, the assets of his spouse and the information and
assets of a partnership firm of which he is a partner. The High
Court accepted the above contentions and held that the
nomination of the elected candidate was defective and therefore
should not have been accepted by the returning officer. Thus the
Election Petition was allowed and the election of the candidate
was set aside.
75. In Karikho Kri v. Nuney Tayang and Another
[2024 KHC OnLine 6200(SC)], statutory appeal was preferred by
Karikho Kri the appellant before the Itanagar Bench of the High
Court which allowed the election in part declaring his election
void under Sections 100(1)(b), Section 100(1)(d)(i) and (iv) of
the Act of 1951. Against the judgment, Karikho Kri field appeal
before the Hon'ble Apex Court. Nuney Tayang the opposite party
also filed appeal. Both appeals were filed under Section 116 A of
the Act. During the course of hearing, Karikho Kri filed IA
No.73161/24 as fresh Schedule for election to the Legislative
Assembly of the State of Arunachal Pradesh was notified on
Election Petition No. 10 of 2021
16.03.2024, expressing his desire to contest the election,
proposed to be held on 19.04.2024. He sought leave to contest
as a candidate in the upcoming assembly election during the
pendency of the appeal. The Apex Court stayed the operation of
the impugned judgment and made it clear that any steps taken
by Karikho Kri in view of the stay order would be subjected to the
final decision that would be taken up on conclusion of the hearing
of the appeals.
76. In his Election Petition, the claim of Nuney Tayang was
that the nomination of Karikho Kri was improperly accepted by
the returning officer as he did not disclose material particulars in
his affidavit filed in Form 26 appended to the Conduct of Election
Rules, 1961. The issues dealt with are extracted:
"(i) whether there has been a non-disclosure of ownership of
vehicles as is required to be disclosed under Clause 7(vi) of the
Conduct of Election Rules, 1961 rendering the nomination of
the returned candidate invalid.
(ii) whether there has been a non-submission of non-due
certificate with regard to electricity charges required to be
submitted under clause 8(ii)(b) of Form 26 as the respondent
was in occupation of MLA Cottage while was an MLA of Tezu
(ST) Assembly Constituency during the year 2009-2014.
(iii) whether the statements made by respondent about the
liability of himself and his wife, in respect of municipal tax,
property tax due and grant total of all government dues in the
Election Petition No. 10 of 2021
affidavit appended to the nomination paper, rendered the
nomination of the respondent defective.
(iv) whether the non-disclosure of the assets both movable and
immovable to the respondent, his wife mother and two sons in
the affidavit appended to the nomination paper amount to
corrupt practice of undue influence within the meaning of
Section 123(2) of Representation of the People Act, 1951.
(v) whether the nature of non-disclosure alleged by the election
petitioner is of a substantial nature affecting the election of the
returned candidate/respondent No.1."
77. The High Court found that some of the ownership of
the vehicles continued to stand in the name of the wife of Karikho
Kri and the dependant wife and son of Karikho Kri at the relevant
date. The High Court concluded observing that the person in
whose name the motor vehicle stood registered should be treated
as the owner thereof and held that as on date of presentation of
nomination on 22.03.2019 and scrutiny on 26.03.2019, the
vehicles were owned by the dependant wife and son of Karikho
Kri but they were not disclosed in the affidavit filed under Form
26.
78. With regard to non submission of 'No-due certificate'
of electricity and water charges required to be submitted under
Form 26, the High Court, noticed that Karikho Kri had occupied
the government accommodation in MLA cottage for the period
Election Petition No. 10 of 2021
2009-2014. According to Karikho Kri, he lost the election in 2014
and vacated the said accommodation. According to him when he
filed his nomination for the Assembly Election in 2014 no-dues
certificate was obtained by him after clearing off the dues and
submitted it.
79. Since he was not occupying the government
accommodation then and outstanding dues were not there then,
he did not disclose the same. As Karikho Kri admitted non-
disclosure of the factum in his affidavit, the High Court held
against him on that count. With regard to the non submission of
dues of municipal tax and property tax, the High Court held that
disclosure was made in one part and omitted to be mentioned in
another part and thus Karikho Kri failed to disclose it. But the
learned counsel for the opposite side lateron did not press that
ground. Against non-disclosure of three vehicles registered in the
name of the dependant wife and two sons, the High Court held
that it amounted to commission of a corrupt practice as per
Section 123 (2) of 1951 Act. As regards non-disclosure of
information as per Form 26 of the Election Rules, 1961, the High
Court held that it is fundamental to the conduct of election and
the solemnity thereof could not be ridiculed by offering
Election Petition No. 10 of 2021
incomplete information or suppressing material information,
resulting in dis information and mis-information to the voters.
80. In the SLP filed by Karikho Kri before the Hon'ble Apex
Court, it was held that there were material lapses by the
returned candidate, in as much as the information regarding a
Bungalow standing in the name of his wife and a vehicle owned
by her were omitted to be mentioned in the nomination. It was
further held that the returned candidate failed to disclose his
interest/share in a partnership firm and that amounted to a very
serious and major lapse.
81. The Apex Court referred to the dictum in Kisan
Shankar Kathore supra where issue involved was non-
disclosure of certain government dues in the nomination and the
Apex Court held that, as a material lapse imparting the election
of the returned candidate. The observations made by the Apex
Court in the above case being of much relevance are extracted
hereunder:
"When the information is given by a candidate in the affidavit
filed along with the nomination paper and objections are raised
thereto questioning the correctness of the information or
alleging that there is non-disclosure of certain important
information, it may not be possible for the Returning Officer at
that time to conduct a detailed examination. Summary enquiry
Election Petition No. 10 of 2021
may not suffice. The present case itself is an example which
loudly demonstrates this. At the same time, it would not be
possible for the Returning Officer to reject the nomination for
want of verification about the allegations made by the objector.
In such a case, when ultimately it is proved that it was a case of
non-disclosure and either the affidavit was false or it did not
contain complete information leading to suppression, it can be
held at that stage that the nomination was improperly accepted.
Ms Meenakshi Arora, learned Senior Counsel appearing for the
Election Commission, rightly argued that such an enquiry can
only be at a later stage and the appropriate stage would be in
an election petition as in the instant case, when the election is
challenged. The grounds stated in Section 36(2) are those
which can be examined there and then and on that basis the
Returning Officer would be in a position to reject the
nomination. Likewise, where the blanks are left in an affidavit,
nomination can be rejected there and then. In other cases
where detailed enquiry is needed, it would depend upon the
outcome thereof, in an election petition, as to whether the
nomination was properly accepted or it was a case of improper
acceptance. Once it is found that it was a case of improper
acceptance, as there was misinformation or suppression of
material information, one can state that question of rejection in
such a case was only deferred to a later date. When the Court
gives such a finding, which would have resulted in rejection, the
effect would be same, namely, such a candidate was not
entitled to contest and the election is void. Otherwise, it would
be an anomalous situation that even when criminal proceedings
under Section 125-A of the Act can be initiated and the selected
candidate is criminally prosecuted and convicted, but the result
of his election cannot be questioned. This cannot be
countenanced." (emphasis supplied)
Election Petition No. 10 of 2021
82. The Apex Court also relied on the dictum Lok Prahari,
Through its General Secretary S.N.Shulka vs Union Of India
and others [2018 (4) SCC 699] wherein it was observed by the
Apex Court that non-disclosure of assets and sources of income
by the candidate and their associate will amount to "undue
influence' as defined under Section 123(2) of the Act of 1951.
83. Rukmini Madegowda v. The State Election
Commission [2022 SCC online SC 1218] was also relied on by
the Apex Court where the observation made was that a false
declaration with respect to the assets of the candidate, his/her
spouse or dependants, would constitute a corrupt practice,
irrespective of its impact on the election of the candidate as it
may be presumed that a false declaration would impact the
election.
84. In the case dealt with by the Apex Court, Karikho Kri
was required to state, whether he had been in occupation of
accommodation provided by the Government at any time during
the last 10 years before the time of notification of current
election and if so, he was to furnish declaration to the effect that
there were no dues payable in respect of the said accommodation
in relation to rent, electricity charges, water charges and
Election Petition No. 10 of 2021
telephone charges. Karikho Kri failed to disclose the fact that he
had been in occupation of government accommodation during his
tenure as an MLA from 2009 till 2014 but stated 'Not Applicable'.
However, with regard to the declaration of no dues he mentioned
'22.3.2019' and stated the dues in respect of the above referred
heads, 'Nil'. After raising an objection by Nuney Tayang on the
ground of non-disclosure of the above-mentioned factum,
Karikho Kri filed 'non-due certificate' of 2014. In that context,
the Apex Court observed as follows:
"40. Having considered the issue, we are of the firm
view that every defect in the nomination cannot straightaway
be termed to be of such character as to render its acceptance
improper and each case would have to turn on its own
individual facts, insofar as that aspect is concerned. The case
law on the subject also manifests that this Court has always
drawn a distinction between non-disclosure of substantial
issues as opposed to insubstantial issues, which may not
impact one's candidature or the result of an election. The
very fact that Section 36(4) of the Act of 1951 speaks of the
Returning Officer not rejecting a nomination unless he is of
the opinion that the defect is of a substantial nature
demonstrates that this distinction must always be kept in
mind and there is no absolute mandate that every non-
disclosure, irrespective of its gravity and impact, would
automatically amount to a defect of substantial nature,
thereby materially affecting the result of the election or
amounting to 'undue influence' so as to qualify as a corrupt
practice." (emphasis supplied)
Election Petition No. 10 of 2021
85. The Apex Court observed that there were no actual
outstanding dues payable by Karikho Kri to the government
accommodation occupied by him earlier. Accordingly the court
held that his failure to disclose the fact that he had occupied such
accommodation and to file the 'no-dues certificate' in that regard
alongwith his nomination form cannot be said to be a defect of
any real import. Moreso he did submit the relevant documents of
2014 after Nuney Tayang raised objection before the returning
officer. The Apex Court observed that there were no actual dues
and the failure of Karikho Kri to disclose that he had been in
occupation of a government accommodation during the period
2009-2014 cannot be treated as a defect of substantial character
so as to taint his nomination and render it's acceptance improper.
86. With regard to the non-disclosure of movable
properties, the Apex Court in Karikho Kri supra, held:
"44. Though it has been strenuously contended before us
that the voter's 'right to know' is absolute and a candidate
contesting the election must be forthright about all his
particulars, we are not inclined to accept the blanket
proposition that a candidate is required to lay his life out
threadbare for examination by the electorate. His 'right to
privacy' would still survive as regards matters which are of no
concern to the voter or are irrelevant to his candidature for
public office. In that respect, non-disclosure of each and
Election Petition No. 10 of 2021
every asset owned by a candidate would not amount to a
defect, much less, a defect of a substantial character. It is not
necessary that a candidate declare every item of movable
property that he or his dependent family members owns,
such as, clothing, shoes, crockery, stationery and furniture,
etc., unless the same is of such value as to constitute a
sizeable asset in itself or reflect upon his candidature, in
terms of his lifestyle, and require to be disclosed. Every case
would have to turn on its own peculiarities and there can be
no hard and fast or straitjacketed rule as to when the non-
disclosure of a particular movable asset by a candidate would
amount to a defect of a substantial character. For example, a
candidate and his family who own several high-priced
watches, which would aggregate to a huge figure in terms of
monetary value, would obviously have to disclose the same
as they constitute an asset of high value and also reflect
upon his lavish lifestyle. Suppression of the same would
constitute 'undue influence' upon the voter as that relevant
information about the candidate is being kept away from the
voter. However, if a candidate and his family members each
own a simple watch, which is not highly priced, suppression
of the value of such watches may not amount to a defect at
all. Each case would, therefore, have to be judged on its own
facts." (emphasis supplied)
87. The Apex Court also found fault with the High Court on
its failure to discuss about the violation which qualified as non-
compliance with the provisions of either the Constitution or the
Act of 1951 or the rules or orders framed thereunder, for the
Election Petition No. 10 of 2021
purposes of Section 100(1)(d)(iv) and as to how the same
materially affect, the result of the election.
88. The Apex Court also observed that there were want of
sufficient pleadings in the Election Petition. The dictum laid down
by the Apex Court in that regard was :-
"48. xxx Though there are some general references to
non-compliance with particular provisions of the Act of 1951
and the rules made thereunder, we do not find adequate
pleadings or proof to substantiate and satisfy the
requirements of Section 100(1)(d)(iv) of the Act of 1951.
Therefore, it is clear that Nuney Tayang tied up the improper
acceptance of Karikho Kri's nomination, relatable to Section
100(1)(d)(i) of the Act of 1951, with the non-compliance
relatable to Section 100(1)(d)(iv) thereof and he did not
sufficiently plead or prove a specific breach or how it
materially affected the result of the election, in so far as it
concerned the returned candidate, Karikho Kri. It was not
open to Nuney Tayang to link up separate issues and fail to
plead in detail and adduce sufficient evidence in relation to
the non-compliance that would attract Section 100(1)(d)(iv)
of the Act of 1951. The finding of the High Court in that
regard is equally bereft of rhyme and reason and cannot be
sustained.
49. As regards the failure on the part of Karikho Kri to
disclose the dues of municipal/property taxes payable by him
and his wife, the same cannot be held to be a non-disclosure
at all, inasmuch as he did disclose the particulars of such dues
in one part of his Affidavit but did not do so in another part.
In any event, as Mr. Arunabh Chowdhury, learned senior
Election Petition No. 10 of 2021
counsel, fairly stated that he would not be pressing this
ground, we need not labour further upon this point.
50. On the above analysis, we hold that the High Court
was in error in concluding that sufficient grounds were made
out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv)
of the Act of 1951 to invalidate the election of Karikho Kri
and, further, in holding that non-disclosure of the three
vehicles, that still remained registered in the names of his
wife and son as on the date of filing of his nomination,
amounted to a 'corrupt practice' under Section 123(2) of the
Act of 1951. In consequence, we find no necessity to
independently deal with Civil Appeal No. 4716 of 2023 filed by
Nuney Tayang, in the context of denial of relief to him by the
High Court, or the issues raised by Dr. Mohesh Chai in the
replies filed by him. " (emphasis supplied)
89. As regards the lack of information regarding the dues
relating to municipal/property tax by Karikho Kri and his wife, the
Apex Court held that the same cannot be non-disclosure at all, in
as much as he did not disclose the particulars of such dues in one
part of his affidavit but did, in another part.
90. Accordingly, the Apex Court held in Karikho Kri supra
that the High Court went erred in concluding that sufficient
grounds were made out, under Sections 100(1)(b), 100(1)(d)(i)
and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of
Karikho Kri and in holding further that non-disclosure of the three
vehicles still remained registered in the names of his dependant
Election Petition No. 10 of 2021
wife and son as on the date of filing of his nomination, amount to
'corrupt practice' under Section 123(2) of the Act of 1951.
Accordingly, the election of Karikho Kri as the returned candidate
from 44 Tezu (ST) Assembly Constituency of the State of
Arunachal Pradesh and appeal filed by Nuney Tayang was
dismissed.
91. Both counsel filed argument notes with reference to
the contentions raised on behalf of the parties they represented
and those being of utmost relevance in the process of
adjudication of the issues involved are dealt with hereunder. The
reliefs sought in the Election Petition are reproduced in the
argument notes filed by Sri.Manu, the learned counsel for the
Election Petitioner as follows:
"i. To declare the election of R-1 declared on 2-5-2021 as null
and void and to set aside the same.
ii. Declare that the result of the election has been materially
affected by improper acceptance of the nomination of the 1 st
respondent and the other respondents.
iii. Declare that the petitioner is the duly elected candidate."
92. The following are the grounds based on which the
above reliefs are sought:
"a. Section 100(1)(d)(i) of the Act: improper acceptance of
nomination and
Election Petition No. 10 of 2021
b. Section 100(1)(d)(iv): non compliance with the Constitution, Act,
Rules or any orders under the Act.
c. Section 101(a) : That the petitioner received majority of valid
votes."
93. Attention of this Court is drawn to columns kept blank
in the affidavits filed by respondents 1 and 3 to 5 in support of
the nomination paper and contended those as nugatory and
therefore, liable to be rejected. He has made specific reference
to paragraph No.4 of column No.5 of the statutory affidavit of
respondent No.1 marked in evidence as Ext.X-1(a) to point out
that it was not filled up. According to him, column No.5 of
paragraph 4 in the affidavit is meant for furnishing the details of
the Income Tax Returns submitted by the candidate during 5
financial years preceding the year of submission of nomination
which would come within March 31st , only four rows were filled
up and the last row was left blank. Similarly column No.5 of
paragraph 4, where particulars of the Income Tax Returns of the
the spouse and dependants are meant to be shown are also left
blank. Column No.2 meant for furnishing the names of
dependants is also left blank. On the basis of the dictum in
Resurgence India supra, the learned counsel canvassed for
treating the affidavit as nugatory and urged to treat that as a
sufficient and substantial reason for rejecting the nomination.
Election Petition No. 10 of 2021
94. The learned counsel has also stated that in the hand
book issued by the Election Commission for the candidate and
the returning officer and in Note 3 of the format of the affidavit in
Form 26, it has been prescribed that all particulars shall be filled
up and the columns shall not be left blank. It has also been
prescribed that affidavits with blank particulars shall not be
entertained (Resurgence India). According to him, it is crystal
clear that non-filling up of all particulars render the affidavit
nugatory and invalid and on it's basis the nomination is only to
be rejected.
95. It was also pointed out by the learned counsel with
reference to the affidavit filed by respondent No.3, marked in
evidence as Ext.X-1(c) that column Nos.2 and 5 of paragraph
No.4 are left blank, with reference to the affidavit filed by
respondent No.4 marked in evidence as Ext.X-1(d) that attention
is drawn to column Nos.3, 4, 5, 6, 7 and 8 of para No.7 and
Sl.No.2, Col.No.3 of paragraph No.8 are left blank and with
reference to the affidavit filed by respondent No.5, marked in
evidence as Ext.X-1(e), column Nos.2 and 5 of paragraph No.4
are left blank. Accordingly, it was contended that the returning
officer ought to have rejected the nominations of respondents 1
Election Petition No. 10 of 2021
and 3 to 5 for the reasons itself. With regard to suppression of
material facts as contemplated under Section 100(1)(d)(iv) of
the R.P. Act, 1951, it was referred in the argument notes filed by
the learned counsel that PAN of the spouse, details of the
government accommodation availed while officiating as the
Chairman of the Corporation, government vehicles used in the
said capacity, bank account numbers and the last financial year in
which income tax return was filed were also suppressed by
respondent No.1 in the affidavit filed in Form 26. The learned
counsel has invited the attention of this Court to the testimony of
Mrs.Bindu Soman, the wife of respondent No.1 examined as
RW3, to point out that during her tenure as Member of CDRF,
Idukki, Income Tax Returns were filed by her during the
assessment years 2002-2005 and 2008-2013. According to the
learned counsel, those aspects were not mentioned in the
affidavit filed by respondent No.1 and thus information relevant
to be furnished was suppressed by him. With specific reference to
column Nos.3 and 4, Sl.No.2 of paragraph No.4 of Ext.X-1(a)
filed by respondent No.1, where it was mentioned that PAN was
not allowed to the spouse and Sl.Nos.2,4,5 and 6 of the same
paragraph, where it was stated 'not applicable', to contend that
Election Petition No. 10 of 2021
respondent No.1 has furnished false information in the affidavit.
With specific reference to Ext.X-1(b), the affidavit filed by
respondent No.2, which lacks authentication by the Notary Public
and with specific reference to Ext.X-1(g), the objection filed by
Sri.Sabu Thomas as agent of the Election Petitioner against
Ext.X-1(a), it was contended that the printed Roman letters
found in column No.5 with reference to Sl.Nos.1 to 6 are not
particulars filled up, but only the part of the standard format of
the affidavit in Form 26. According to the learned counsel,
column Nos.4 and 5 are to be filled up by the candidate. Despite
the factum that respondent No.1 had filled those, the returning
officer failed to consider so. It was further contended that
objections were raised by the Election Petitioner against non-
filling of column No.5 of paragraph No.4, non-production of 'no-
dues certificate' by respondent No.1 and non-authentication of
Ext.X-1(b) filed by respondent No.2, but those have not been
answered by the returning officer in Ext.X-1(h) order passed.
96. It was contended that filing of an affidavit by
furnishing false information or mis-information, non-filling up of
columns in the affidavit and non-furnishing of 'no-dues
certificate' alongwith the affidavit or at the time of scrutiny of
Election Petition No. 10 of 2021
defects in the nomination are defects of substantial character.
The learned counsel has also relied on Brijendralal Gupta, Sri
Mariembam Prithviraj @ Prithviraj Singh, Kisan Shankar
Kathore, Resurgence India, Association for Democratic
Reforms and Others and Peoples Union for Civil Liberties
and Others v. Union of India and others [(2003) 4 SCC
399] to fortify his arguments advanced as above.
97. With specific reference to the contentions raised in the
written statement it was urged by the learned counsel that due
to an inadvertent omission, respondent No.1 failed to state the
names of the dependents in the affidavit, while adducing
evidence. It was stated that the children (sons) are not
dependents. According to him, the specific contention raised in
the written statement filed was that 'no-dues certificate' was not
produced. The returning officer as PW4 also deposed that the 'no
dues certificate' was not produced by respondent No.1. But
respondent No.1 as RW1 has stated during examination that 'no
dues certificate' was produced by him before the returning officer
and a copy of that was also produced alongwith the written
statement. But the 'no dues certificate' was not produced.
Election Petition No. 10 of 2021
98. While deposing as RW1, respondent No.1 stated that a
permanent official accommodation was not allotted to him. RW2
has stated in her reply that respondent No.1 had utilised
government accommodation whereas as RW1, respondent No.1
has deposed that Government guest house was used by him and
the rentals were paid. Accordingly, 'no dues certificate' was filed
by him. Contention taken in the written statement lastly was
that Karikho Kri supra and Dasanglupul Vs. Lupalum Kri
[AIR 2023 SC 5265] and Kanimozhi Karunanidhi Vs.
Santhana Kumar and Others [AIR 2023 SC 2366] are not
applicable to the case on hand since the facts and circumstances
of those are distinct from those, in the case on hand.
99. Sri.Krishnanunni, the learned Senior Counsel has also
filed an argument note on behalf of respondent No.1. It was
contented that a detailed written statement was filed by
respondent No.1 stating that a proper affidavit in the prescribed
format has been submitted by him alongwith the nomination
paper and therefore, as rightly pointed out by the returning
officer, his nomination paper was not liable to be rejected.
Accordingly, it was urged that the Election Petition is only liable
to be dismissed. According to him, the liability of the nomination
Election Petition No. 10 of 2021
to be rejected is not at all a matter to be enquired into the case
on hand, since the Election Petitioner failed to raise a plea in the
Election Petition that in view of that the results of the election
was materially affected. It was contended further that the
improper acceptance of the nomination can form a reason under
Section 100 (1)(d)(i) for setting aside the election only when the
Election Petitioner pleads and proves that the said act of
acceptance of nomination has materially affected the results of
the Election. The learned counsel conceded that if this Court
finds that the nomination paper of respondent No.1 has been
improperly accepted by the returning officer the same can also
form a ground for setting aside the election and to declare the
latter as the elected candidate. The learned counsel has also
dealt with the circumstances in which Section 33A was brought
into the Statute book and it reads:-
"The Hon'ble Supreme Court of India, on 02/05/2002,
passed a judgment in Civil Appeal 7178/2001 and Writ Petition
(Civil) 294/2001 [reported in AIR 2002 SC 2112-pages 1 to 21
in the paper-book submitted herewith). That was a case where
the writ petitioner, Association for Democratic Reforms
approached the Apex Court contenting that a voter has got a
right to know the entire details regarding the candidates to
whom he is expected to vote. If the democratic process of
election is to become fruitful, voters have to be supplied with
all necessary information as regards the contesting candidates
Election Petition No. 10 of 2021
in the election. After considering the matter in detail, the Apex
Court was pleased to direct the Election Commission of India to
call for information on affidavit by the contesting candidates in
exercise of its power under Art.324 of the Constitution of India
with respect to the following aspects in relation to the
candidates:
1) Whether the candidate is convicted/acquitted/discharged
of any criminal offence in the past- if any, whether he is
punished with imprisonment or fine?
2) Prior to six months of filing of nomination whether the
candidate is accused in any pending case, of any offence
punishable with imprisonment for two years or more, and in
which charge is framed or cognizance is taken by the Court
of law. If so, the details thereof.
3) The assets (immovable, movable, bank balances etc.) of
a candidate and of his/her spouse and that of dependents.
4) Liabilities, if any, particularly whether there are any over
dues of any public financial institution or Government dues.
5) The educational qualifications of the candidate."
100. According to him, pursuant to the directions issued by
the Apex Court in Association for Democratic Reforms supra,
Election Commission has passed an order on 28.06.2022 and
directed the details to be included in the affidavit. A proforma of
the affidavit to be furnished was also made part of the order.
According to him, in Sub-clause '4' of paragraph 14 of the order,
it has been specifically made clear that any defect, wrong or
incomplete information or suppression of material information
Election Petition No. 10 of 2021
can be a ground for rejection of the nomination only if the defect
is a character of substantial nature.
101. It is contended by the learned counsel that Act 43 of
1951 was amended in 2002 by the Representation of People (3rd
Amendment) Act and Sections 33A and 33B were introduced.
According to him, Section 33A directed the candidate to furnish
information, whether
"(i) he is accused of any offence punishable with imprisonment
for two years or more in a pending case in which a charge has
been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence [other than any offence
referred to in sub-section (1) or sub-section (2), or covered in
sub-section (3), of section 8] and sentenced to imprisonment
for one year or more."
102. According to the learned counsel, the amendment
brought in as above was challenged before the Hon'ble Apex
Court in Writ Petition (Civil) Nos. 490, 509 and 515 of 2002.
(Reported in AIR 2003 SC 2363). The Apex Court after having
dealt with the above cases found that the newly incorporated
Section 33B goes against the directions issued by it earlier and
found that provision as unconstitutional. Accordingly, it was
struck down. Section 33A was retained in the Statute and Section
33B was taken away from it's purview. The learned counsel
Election Petition No. 10 of 2021
pointed out that pursuant to the directions contained in the
above decision and in accordance with those, the Election
Commission issued an order on 27.03.2003. According to him,
the clause with reference to the power of the returning officer to
reject the nomination paper for incorporating wrong, incomplete
or incorrect information in the affidavit and for material
suppression of facts in the affidavit, was omitted. The said order
was also challenged before the Apex Court in Writ Petition (Civil)
No.121/2008. The Hon'ble Apex Court was pleased to observe
while disposing of the Writ Petition that eventhough the power of
the returning officer to reject the nomination paper for
submitting wrong and incorrect information is not included in the
order of the Election Commission, the returning officer can reject
a nomination paper with blank particulars. The learned counsel
urged on the strength of Section 36(4) of the R.P Act, 1951 that,
the power to reject a nomination paper is given to a returning
officer and it makes it abundantly clear that he shall not reject a
nomination paper on the ground of any defect which is not of a
substantial character. Accordingly, it was canvassed by the
learned counsel, even if it is found by the returning officer that
there are defects in the nomination paper, he has to see, whether
Election Petition No. 10 of 2021
those are of substantial character and if not, the nomination
paper is not liable to be rejected. The learned counsel has also
contended with reference to the decisions relied on by him that it
is the duty of the returning officer to check whether the
information required is fully furnished at the time of filing of the
affidavit with the nomination paper and if a candidate fails to fill
up the blanks even after being remanded of by the returning
officer, the nomination paper is fit to be rejected. The learned
counsel pointed out that the power of the returning officer to
reject the nomination paper has to be exercised very sparingly
but the bar should not be laid so high, that justice itself is
prejudiced. With reference to the grounds upon which reliefs
were sought by the Election Petitioner ( paragraph Nos. 10,11,12
and 13) (grounds C to F) of the Election Petition) it was
contended by the learned counsel that what was expected to be
included in Sl.No.1 of column No.5, paragraph 4 of the affidavit
of respondent No.1 that the column left was one meant for
showing the gross income for one of the five financial years
preceding the election. According to him, Respondent No.1 has
shown his income in the returns filed for four preceding financial
years, whereas the income shown in the income tax return for
Election Petition No. 10 of 2021
the 5th financial year whereas rows 1,2,3 and 4 are properly filled
up. According to him what was expected to be furnished in row
No.5 is only the gross income declared the income tax returns
submitted during the five years preceding date of election and
respondent No.1 has stated as submitted returns only for four
years during that period while officiating as Chairman of the
Corporation and was having sufficient taxable income for filing
returns. According to him, he has not submitted income tax
return for Financial Year 2015-2016 and that is why last row of
Column No.5 of Serial No.1 was left blank. According to him,
even the Election Petitioner has an allegation that respondent
No.1 had filed income tax return for all the five financial years
preceding the date of election.
103. It was contended with reference to the allegation in
Sl.No.2 of column No.3, where it was stated by respondent No.1
with reference to the allotment of PAN to his spouse Smt.Bindu
Soman as 'not alloted'. The circumstances under which such an
information was happened to be incorporated in the affidavit filed
were stated by respondent No.1 in his written statement.
According to him, the affidavit filed alongwith the nomination
was filled up by his son who is a lawyer and while being
Election Petition No. 10 of 2021
examined as RW2, he deposed to have consulted his mother over
telephone and obtained information from her that PAN was not
allotted in her favour.
104. According to him, during examination of Smt. Bindu
Soman as RW3, she has stated that Income Tax Returns were
not filed by her. According to her, she was an agent of LIC and a
member of CDRF, Idukki for a short period. According to her,
Income Tax was deducted at source when the commission was
paid by LIC to her and similar is the case of honorarium paid to
her, by CDRF, Idukki.
105. According to RW3, for the above reason, she was not
aware of the PAN issued in her name. The learned counsel
canvassed for a consideration of the information furnished by
respondent No.1 in the affidavit filed about non-issuance of PAN
to his spouse as a bonafide and innocent omission. The learned
counsel contended that even otherwise, the omission as above
cannot be treated as of substantial character, for want of an
allegation from the Election Petitioner that respondent No.1 has
suppressed the money or property held by him. According to
him, the Income Tax Officer when examined as PW3 has also
spoken that Smt.Bindu Soman has not submitted any Income
Election Petition No. 10 of 2021
Tax Return during the relevant period. According to him, in such
a context, the blank particulars in Column 5 of Sl.No.2, cannot be
treated as substantial defects.
106. The argument further raised with regard to
non-furnishing of the names of the two sons of respondent No.1
in column No.2 of serial Nos.4 and 5 of the affidavit, RWs 1 and
2 have spoken during examination that neither of them is a
dependent of respondent No.1. According to him, both of them
are advocates by profession having independent practice and
the details of the PAN cards possessed by them were also
furnished in Column No.2. According to him, they have not filed
any returns of income tax during the relevant financial years, the
particulars of which are called for in coloumn No.5 of Serial Nos.
4 and 5 and therefore, those were left as blank. The learned
counsel canvassed that the non furnishing of information in the
abvoe columns cannot be treated as filing of the affidavit with
blank particulars. According to him, at the more, it can be taken
as a case of furnishing incomplete particulars. The learned
counsel pointed out that even the Election Petitioner has no case
that the sons of respondent No.1 had paid Income Tax during the
relevant period. The Election Petitioner has also not proved that
Election Petition No. 10 of 2021
the children were dependents of respondent No.1 financially at
the relevant time. According to him, when the defect was
pointed out, explanation offered by RW2 was that the particulars
happened to be furnished in the affidavit, accordingly for the
reason of their residence together under a single roof. According
to the learned counsel, the defect cannot be treated as of
substantial character. With regard to the allegation of lack of
information funished in paragraph 11 of the affidavit with regard
to the amount secured by the LIC policies and the details of the
vehicle, it was contended that those omissions are also of in-
substantial character. With regard to the omission in paragraph
13, it was contended by the learned counsel that filing of the
nomination by respondent No.1 was after his resignation from
the post as the Chairman of the Corporation. According to him,
he has not occupied any official residence allotted by the
Government during his tenure as a Chairman. Therefore, that
clause (iii) (a) of paragraph 8 of the affidavit was answered in the
negative. Therefore, he was not expected to fill up clauses (b),
(c) and (d) of column No.5 and therefore mentioned as 'Not
applicable'. According to him, 'no-dues certificate' was produced
at the time of filing of nomination since he was not occupying an
Election Petition No. 10 of 2021
official residence then and the evidence of PW2 would make the
position clear with reference to the allegation in paragraph 14
(ground No.1) that respondent No.1 did not rectify the affidavit
submitted to the returning officer even after the defects crept
into the affidavit sworn to firstly in English were pointed out.
Those were alleged as not even rectified by respondent No.1 in
the additional affidavit filed in Malayalam and evidence to prove
those have not been brought in while examining the returning
officer as PW4. What has been brought in during examination of
PW4 was that the affidavit in Malayalam was accepted by her.
Two sets of nominations submitted by respondent No.1
respectively on 18.03.2021 and 19.03.2021. It was contended
by the learned counsel with reference to the above that
respondent No.1 had submitted two different sets of nominations
and contrary to the allegations raised by the Election Petitioner,
the set of nomination alongwith Malayalam affidavit was accepted
by the returning officer, that during cross examination, RW2 has
denied the suggestion put to her that the second affidavit was
submitted when the returning officer has pointed out the blank
and improper entries in the affidavit submitted on 18.03.2021.
According to the learned counsel, the evidence of RW2 is
Election Petition No. 10 of 2021
contrary to the contentions of the Election Petitioner. The
learned counsel has cited various decisions of the Apex Court and
canvassed for a consideration that furnishing of false information
with reference to the issuance of a PAN card in favour of the wife
of respondent No.1 and non-furnishing of information with
reference to various aspects referred to, as insubstantial and to
dismiss the Election Petition.
107. In the backdrop of the contentions raised in writing as
above and the arguments advanced orally by the counsel
representing the parties to the Election Petition, it is incumbent
upon this Court to see whether the blank particulars in the
affidavit filed by respondent No.1, the suppression of certain
information and furnishing of incorrect information are of
substantial nature and the election which declare respondent
No.1 as elected to the Peermedu Legislative Assembly is liable to
be declared as void.
108. Fifteen numbers of columns in the affidavit are
contended as left blank. 5th row of column No.5 of paragraph 4 of
the affidavit filed by respondent No.1 was alleged as left blank.
In column No.5, the total income shown in the income tax
returns filed during five financial years, as on 31 st March, 2021,
Election Petition No. 10 of 2021
preceding the filing of the nomination paper were to be
furnished. Respondent No.1 has filled up four rows in column
No.5 and the 5th row was left blank. It is pertinent to note that in
column No.4, respondent No.1 has shown the last financial year
in which he has filed income tax returns, as 2019-2020. Since
respondent No.1 had resigned from the post of Chairman of the
Corporation on 16-03-2021 and his resignation having been
accepted by the Governor on 17-03-2021, he has not filed
returns for the 5th financial year and therefore, the 5 th row of
Column No.5 was kept blank. True that 'Nil' or 'Not Applicable'
could have been shown in the 5 th row, but not shown. The
question relevant in the context is whether the above defect is of
substantial character or not and non-filling up of that entry with
'Nil' or 'Not applicable' would have any serious repercussion in
the exercise of voting rights by a voter. This Court is inclined to
hold it in the negative.
109. In Column No.5, all rows were left blank with
reference to Sl.Nos.2 to 6. Those were left blank. Column No.4
in the affidavit with reference to Sl.Nos.1 to 6 being shown as not
applicable, they are not supposed to furnish answers in the five
rows of column No.5. True that 'Nil' or 'Not applicable' could
Election Petition No. 10 of 2021
have been written in those rows. The learned counsel canvassed
for treating the affidavit in view of the blank particulars it carried
as aforesaid, to declare it as nugatory as held by the Hon'ble
Apex Court in Resurgence supra. In that case, the Hon'ble Apex
Court was dealing with a case in which, columns meant for
furnishing particulars regarding criminal antecedents have been
kept blank and hence it was held that the blank particulars in the
affidavit is sufficient to declare it as nugatory. Even under the R.P
Act, a voter has the statutory right of information under section
33A of the R.P Act. Therefore, a candidate proposing to contest in
an election is duty bound to furnish the information mandatory to
be furnished by him under section 33A of the R.P Act and in case
of his failure, the statute itself provide for the penal
consequences under section 125A of the R.P Act. That was the
circumstance in which, the Apex Court has held that the blank
particulars in an affidavit would render it nugatory. Since the R.P
Act, in sub-section (4) of section 36, provides for a discretion
stating that a returning officer shall not reject a nomination
paper when the defect noted in it are not of substantial character.
A voter undoubtedly has the right to be informed of the criminal
background of the candidate while exercising his option to select
Election Petition No. 10 of 2021
a representative of their choice in the election. In the case on
hand, the reason for non-furnishing of information in column
No.5 is evident from a reading of the entry filled up in column
No.4 and therefore, the blank particulars referred to above
cannot be said to be a substantial defect so as to have any
serious impact on the exercise of voting right by a voter. This
Court finds that the omissions to mention 'Nil' or 'Not applicable'
in the columns referred to above would not have much serious
impact in the voters' right to be informed about the candidate
contesting the election.
110. The next argument advanced was that the defects in
the affidavit firstly filed were pointed out to respondent No.1, but
he failed to cure those and therefore those persisted in the
affidavit filed secondly. No materials are available on record to
convince of the defects noted by the returning officer. Therefore,
this Court is not in a position to say whether those persist in the
affidavit secondly filed. The returning officer cannot take a view
on the incorrectness or correctness of certain matters filled up
without conducting an enquiry, which is impossible at the time of
scrutiny of the nomination and it's acceptance. It is pertinent to
note that the 5th respondent who raised objection against the
Election Petition No. 10 of 2021
nomination and affidavit also failed to convince the returning
officer with materials that 'Not applicable' mentioned in Column
No.4 was a wrong entry. Therefore, the returning officer is
justified in accepting the nomination paper stating the defects
pointed out as insubstantial in nature.
111. It was contended that in Column No.4 of Sl.No.2 of
paragraph no.4 of the affidavit, information about the PAN of the
spouse of respondent No.1 was called for, but the answer
furnished was, 'No PAN allotted'. The affidavit of respondent
No.1 was admittedly prepared by his elder son, Mr.Sobin Soman,
who was a lawyer by profession. According to him, he was not
aware of the factum of possession of PAN by his mother.
Respondent No.1 when examined as RW1 has also deposed about
his ignorance of that factum. Both of them deposed during
examination before this Court, as RW1 and RW2 respectively
that, Mrs.Bindu Soman was out of station at the relevant time
and the information was obtained from her over telephone.
According to RW2, she told him that PAN was not issued from the
Income Tax Department in her favour and based on the
information furnished that, the entry was made in the affidavit
accordingly. Mrs.Bindu Soman when examined as RW3 had also
Election Petition No. 10 of 2021
taken the same stand. Therefore, the filling up of the entry being
based on information given by RW3, that cannot be taken as a
false information willfully entered in the affidavit by RW1 or RW2.
112. Though, Mrs.Bindu Soman, during examination as
RW3, admittedly stated that PAN was not issued to her, she
categorically deposed that while holding the post as member of
CDRF, the PAN was given at her office and tax was deducted at
source from the honorarium received. According to her, tax was
deducted at source also from the commission received by her
from the Life Information Corporation, for which, she worked as
an agent. According to her, everything was done from the office
and therefore she has no definite idea about that. However, she
deposed the truth regarding payment of tax. PW3, the Income
Tax officer, had also deposed that returns were filed by her
during the relevant period. Therefore, this Court is of the view
that the information furnished by RW3 regarding issuance of PAN
in her favour is not a substantial defect as far as its impact on
the voting right of a voter is concerned. Therefore, in the opinion
of this Court, the above though a defect, is not substantial in
nature.
Election Petition No. 10 of 2021
113. Income Tax officer, when examined as PW3, also
deposed that income tax returns were filed while holding the post
as member of CDRF. The office file relating to the income tax
returns filed by RW3 was also produced by her and marked in
evidence as Ext.X3 to substantiate her version. Since the
incorrect information about issuance of PAN was evidenced as
incorporated in the affidavit of respondent No.1 by RW2, based
on the information furnished by RW3, RW1 cannot be said to
have furnished a wrong information in the affidavit filed
alongwith the nomination paper.
114. The defect therefore is liable to be discarded as an
insubstantial one. The particulars regarding possession of PAN by
RW1 and filing of income tax returns by him were correctly
entered in the affidavit filed [Ext.X1(a)]. Article 173 of the
Constitution of India, which provides for the qualification for
membership of the State Legislature being relevant in the
context is extracted hereunder:
"173. Qualification for membership of the State Legislature
A person shall not be qualified to be chosen to fill a seat in the
Legislature of a State unless he -
(a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or
Election Petition No. 10 of 2021
affirmation according to the form set out for the purpose in the
Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less than
twenty-five years of age and in the case of a seat in the Legislative
Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that
behalf by or under any law made by Parliament."
Educational qualification is not prescribed thereunder
for a candidate proposing to contest the election to
Legislative Assembly. In the case on hand, 'SSLC' was
shown by RW1 as his educational qualification. It has come
out in evidence that he was a graduate in Electrical
Engineering as well as a Diploma holder in Social Sciences.
115. Therefore, the information as to higher
educational qualification was not furnished by him in the
affidavit, which if supplied would have only been beneficial
and advantageous to him. In Mairembam Prithviraj
supra, the contesting candidate furnished wrong
information in the affidavit that he was holding MBA at the
relevant time, where as in fact, he was not holding that.
The Court was also convinced that while contesting the
election on an earlier occasion also, he has furnished the
Election Petition No. 10 of 2021
very same wrong information and therefore held it as a
defect of a substantial character. In the case on hand, RW1
failed to state his higher educational qualification, which, if
disclosed would not operate as a bar against his
candidature in the election, rather it would only be an
added advantage to influence a voter while exercising the
voting rights. The failure to mention every educational
qualification though a defect, is not of substantial character
since it would in no manner affect the right of information
of a voter while exercising the voting right in the election in
question.
116. The argument further advanced was the
non-furnishing of 'No Dues Certificate' along with the
nomination. An argument was also advanced that
respondent No.1 was holding an office of profit under the
Government as Chairman of the Corporation at the relevant
time when the nomination was filed. But, Exts.R1 and R2
marked in evidence from the side of the respondent No.1
would establish that resignation was tendered by him to the
Government on 16-03-2021 and a proceeding dated 17-03-
2021 was passed by the Governor of Kerala accepting his
Election Petition No. 10 of 2021
resignation and thereby relieving him from the
Chairmanship of the Corporation. From the dates mentioned
in the above documents, it is clear that the respondent No.1
had not been holding an office of profit under the
Government at the relevant time of filing of the nomination.
Therefore, the argument that respondent No.1 was holding
an office of profit at the relevant time of filing of nomination
was repelled being devoid of any basis.
117. 'No Dues Certificate' was meant to be filed with
regard to the permanent official accommodation and
vehicle, if any, allotted to respondent No.1, during his
tenure as Chairman of the Corporation. Respondent No.1 as
RW1, deposed that a permanent official accommodation
was not allotted to him while holding office as Chairman of
the Corporation. Official vehicle was also not provided to
him during that tenure. Therefore, he is not supposed to
furnish 'No Dues Certificate' called for with respect to the
rentals and charges for electricity, water and telephone.
Even then, a certificate was produced alongwith the written
statement filed in the Election Petition marked in evidence
as Ext.R3 where the Managing Director of the Corporation
Election Petition No. 10 of 2021
has certified that respondent No.1 owed no dues towards
the Corporation.
118. The evidence tendered by RW1 that he had not
availed any permanent official accommodation and
conveyance of the Government while holding the office as
Chairman of the Corporation was also not controverted by
the Election petitioner. Therefore, he was not supposed to
furnish 'No Dues Certificate' alongwith the nomination paper
and the argument advanced that the failure to furnish 'No
Dues Certificate' is fatal to the election contested and won
by respondent No.1 being devoid of any basis is discarded.
119. It was contended further that sons of
respondent No.1 were shown as dependents, but their
names were not shown in the affidavit [Ext.X1(a)], where it
was sought to be furnished. True that it was an omission,
but cannot be taken as intentionally or advertently made to
defeat the right of information guaranteed to a voter by the
Constitution of India as a citizen while exercising his voting
rights. The financial dependency of the family members of
respondent No.1 was the information sought to be furnished
in the relevant column of the affidavit. As RW2, the elder
Election Petition No. 10 of 2021
son of respondent No.1 deposed that himself and his
younger brother, Mr.Sobith Soman, were having sufficient
income as lawyers, but, were residing alongwith RW1 and
RW3 under a single roof. According to RW2, himself and his
brother were having no separate residential buildings.
Though, financial dependency was actually sought to be
written in the affidavit, being dependents of RW1 for
residential purpose, the relevant column in the affidavit was
filled as if the sons were dependents. True that the names
of his sons were not furnished by RW1. Furnishing of
information accordingly was a defect in the affidavit, but not
of substantial character to misguide a voter while exercising
his voting rights and to treat the election with reference to
respondent No.1 as void. Similarly, the non-furnishing of
the account number of respondent No.1 in the bank and the
make of the vehicle possessed by him are also not
substantial defects, since those do no have the trait to
defeat the right of information of a voter, which he is
entitled to, while exercising his right to vote in an election.
It is pertinent to note that the other particulars regarding
the bank account maintained by RW1, the cash in deposit
Election Petition No. 10 of 2021
and the number of the vehicle owned by him were furnished
in the affidavit.
120. It is noticed that apart from the above, other
details called for are furnished by RW1 in the affidavit. The
defects pointed out though evidenced as existing in the
affidavit, those being insubstantial in character are unlikely
to abridge the fundamental right of a voter to know about
the candidate and to adversely affect the casting of vote by
him. Section 36(4) of the R.P Act makes it abundantly clear
that the returning officer shall not reject any nomination on
the ground of any defect which is not of substantial
character. It has also been settled by the Apex Court that
the power to reject a nomination can only be exercised
sparingly. Therefore, the nomination and the accompanying
affidavit have been accepted by the returning officer after
being convinced that the defects pointed out are not of
substantial character.
121. In view of the discussions made hereinabove, the
returning officer is justified in accepting the nomination and
the affidavit accompanying it. For the reason itself, the
election in question, as far as it declared respondent No.1,
Election Petition No. 10 of 2021
who received higher votes as elected, is not liable to be
held as void. Rather, it is liable to be upheld and this Court
do so.
Election petition fails for the reasons and is dismissed.
Sd/-
MARY JOSEPH
JUDGE
ttb
Election Petition No. 10 of 2021
PETITIONER'S ANNEXURES
ANNEXURE- I TRUE COPY OF THE AFFIDAVIT DATED
19/03/2021 SUBMITTED BY THE 1ST
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE -I (a) TRUE ENGLISH TRANSLATION OF ANNEXURE-I
ANNEXURE- II TRUE COPY OF THE AFFIDAVIT DATED
19/03/2021 SUBMITTED BY THE 2ND
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE- II (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A-
II
ANNEXURE III TRUE COPY OF THE AFFIDAVIT DATED
18/03/2021 SUBMITTED BY THE 3RD
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE- III (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A-
III
ANNEXURE IV TRUE COPY OF THE AFFIDAVIT DATED
18/03/2021 SUBMITTED BY THE 4TH
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
ANNEXURE- IV (a) TRUE ENGLISH TRANSLATION OF ANNEXURE A-
IV
ANNEXURE V TRUE COPY OF THE AFFIDAVIT DATED
19/03/2021 SUBMITTED BY THE 5TH
RESPONDENT BEFORE THE RETURNING OFFICER,
092 PEERMADE LAC AND ASSISTANT CARDAMOM
SETTLEMENT OFFICER, KUMILY.
Election Petition No. 10 of 2021
ANNEXURE V (a) TRUE ENGLISH TRANSLATION OF ANNEXURE-V
ANNEXURE VI TRUE COPY OF THE STATEMENTS OF OBJECTION
DATED 20/03/2021 SUBMITTED BY THE
PETITIONER'S COUNSEL BEFORE THE
RETURNING OFFICER, 092 PEERMADE LAC AND
ASSISTANT CARDAMOM SETTLEMENT OFFICER,
KUMILY.
ANNEXURE VI (a) TRUE ENGLISH TRANSALATION OF ANNEXURE-VI
ANNEXURE VII TRUE COPY OF THE REPLY/ORDER DATED
20/03/2021 ISSUED BY THE RETURNING
OFFICER, 092 PEERMADE LAC AND ASSISTANT
CARDAMOM SETTLEMENT OFFICER, KUMILY TO
THE PETITIONER
ANNEXURE VII (a) TRUE ENGLISH TRANSALATION OF ANNEXURE-
VII
ANNEXURE VIII TRUE COPY OF THE CHALAN NO.08/06/2021
DATED 16/06/2021 DATED FOR REMITTING
SECURITY DEPOSIT BY THE ELECTION
PETITIONER
ANNEXURE IX TRUE COPY OF LETTER NO.KSWC/RTI/2021-
2022 DATED 03.11.2021 ISSUED BY THE
STATE PUBLIC INFORMATION OFFICER, KERALA
STATE WAREHOUSING CORPORATION TO MR.BIJU
MODIYIL, MODIYIL HOUSE, RANNI-PERUNAD
P.O., PATHANAMTHITTA, PIN-689711
ANNEXURE IX (a) TRUE ENGLISH TRANSLATION OF ANNEXURE-IX
RESPONDENTS' EXHIBITS:
Exhibit R1 COPY OF RESIGNATION LETTER DATED
16.03.2021.
Exhibit R2 COPY OF THE PROCEEDINGS DATED 17.03.2021
OF THE GOVERNOR OF KERALA.
Exhibit R3 THE NO DUE CERTIFICATE ISSUED BY THE
MANAGING DIRECTOR, KERALA STATE
WAREHOUSING CORPORATION DATED
17.03.2021.
Exhibit R4 THE CERTIFICATE ISSUED BY THE BRANCH
MANAGER, LIC DATED 22.10.2021.
List of Witnesses LIST OF WITNESSES
PETITIONER EXHIBITS
Exhibit A-1 True copy of the affidavit dated 19-03-
2021 filed by the 1st respondent before
the Returning Officer 092 Legislative
Assembly Constituency, Peermade
Exhibit A-1(a) True English Translation of Exhibit A-1
Election Petition No. 10 of 2021
Exhibit A-2 True copy of the affidavit dated 19-03-
2021 filed by the 2nd respondent before
the Returning Officer, 092 Legislative
Assembly Constituency, Peermade
Exhibit A-2(a) True English Translation of Exhibit A-2
Exhibit A-3 True copy of the affidavit dated 18-03-
2021 filed by the 3rd respondent before
the Returning Officer, 092 Legislative
Assembly Constituency, Peermade
Exhibit A-3(a) True English Translation of Exhibit A-3
Exhibit A-4 True copy of the affidavit dated 18-03-
2021 filed by the 4th respondent before
the Returning Officer , 092 Legislative
Assembly Constituency, Peermade
Exhibit A-4(a) True English Translation of Exhibit A-4
Exhibit A-5 True copy of the affidavit dated 19-03-
2021 filed by the 5th respondent before
the Returning Officer , 092 Legislative
Assembly Constituency, Peermade
Exhibit A-5(a) True English Translation of Exhibit A-5
Exhibit A-6 True copy of the statements of objection
dated 20/03/2021 submitted by the
petitioners counsel before the Returning
officer, 092 Peermade LAC and Assistant
Cardamom Settlement Officer Kumily
produced along with the Election
Petition
Exhibit A-6(a) True English Translation of Exhibit A-6
Exhibit A-7 True copy of the reply/ order dated
20/03/2021 issued by the Returning
officer 092 Peermade LAC and Assistant
Cardamom Settlement Officer Kumily to
the petitioner
Exhibit A-7(a) True English Translation of Exhibit A-7
Exhibit A-8 True copy of Chalan No.08/06/2021 dated
16-06-2021 for remitting Security
deposit by me
Exhibit A-9 Original of the letter number
KSWC/RTI/2021-2022 dated 03-11-2021
Exhibit A-9(a) True English translation of Exhibit A-9
