See Full Document Text
रजिस्ट्री स.ं डी.एल.- 33004/99 REGD. No. D. L.-33004/99
xxxGIDHxxx
सी.जी.-डी.एxलxx.-GअID.E-1x4xx1 02022-239651
CG-DL-E-14102022-239651
असाधारण
EXTRAORDINARY
भाग II—खण् ड 3—उप-खण्ड (iii)
PART II—Section 3—Sub-section (iii)
प्राजधकार स ेप्रकाजित
PUBLISHED BY AUTHORITY
स.ं 68] िई दिल्ली, बहृ स्ट्पजतर्ार, अक्त बू र 13, 2022/आजर् ि 21, 1944
No. 68] NEW DELHI, THURSDAY, OCTOBER 13, 2022/ASVINA 21, 1944
भारत जिर्ाचा ि आयोग सजचर्ालय
अजधसचू िा
िई दिल्ली, 30 जसतम्ब र, 2022
अ.आ. 68(अ).—लोक प्रजतजिजधत्र् अजधजियम, 1951 की धारा 106 के अिुसरण म ें भारत जिर्ााचि आयोग,
जिर्ााचि अिी संख्या 1/2019 के संिभा म ें मजणपरु उच्च न्यायालय, इम्फाल द्वारा तारीख 23 जसतम्बर, 2022 के जिणाय
एर्ं आिेि को एतिर्ृ ारा प्रकाजित करता ह।ै
[फा. स.ं 82/मजणपुर-जर्.स./एि.ई.एस-II/2022]
आिेि से,
मधुसूिि गुप्ता, सजचर्
ELECTION COMMISSION OF INDIA
NOTIFICATION
New Delhi, the 30th September, 2022
ON. No. 68(E).—In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951),
the Election Commission of India, hereby publishes the judgment and order dated 23rd September, 2022, passed in the
Election Petition No. 1 of 2019 by the Hon‘ble High Court of Manipur, Imphal.
[F. No. 82/MR-LA/NES-II/2022]
By Order,
MADHUSUDAN GUPTA, Secy.
6943 GI/2022 (1)2 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
IN THE HIGH COURT OF
MANIPUR AT
IMPHAL
ELECTION PETITION NO. 1 OF 2019
Houlim Shokhopao Mate @ Benjamin, aged about 36 years,
S/O (L) H. Jamkhokhai Mate, resident of Tengnoupal
Village, P.O. & P.S. Tengnoupal, District Tengnoupal,
Manipur-795131.
……. Petitioner
-Versus-
1. Shri Lorho S. Pfoze, aged about 59 years, S/O Late
A. SiboPfoze, resident of Kayinu Village, P.O. & P.S.
Mao, District Senapati, Manipur – 795150
2. Angam Karung Kom, aged about 63 years, S/O Late
Ashong Kom, resident of K.R. Lane, P.O. & P.S.
Porompat, District Imphal East, Manipur - 795005.
3. Shri Hangkhanpau Taithul, aged about 55 years, S/O
(L) T. Doupu, resident of Singngat Hausa Veng, P.O. &
P.S. Singngat, Churachandpur District, Manipur -
795139.
3. Mr. Ashang Kasar @ Wungnaoshang Kasar @
Wungnao Shang Kasar, aged about 43 years, S/O
Ngashathing Kasar, resident of Chadong Village,
P.O. & P.S. Litan, Kamjong District, Manipur
- 795145.
4. Leikhan Kaipu, aged about 54 years, S/O Late Leikhan
Kokan, resident of Heikakpokpi Village, P.O.
Pallel, P.S. Machi, Machi Sub-Division, Tengnoupal
District, Manipur - 795135.
5. Thangminlien Kipgen, aged about years, S/O Late
Thangpu Kipgen, resident of Haipi Village, P.O.
Kalapahar, Kangpokpi District, Manipur - 795122.
6. Shri K. James, aged about 56 years, S/O Late K.
Ngatangmi, resident of Tangkhul Hundung Khullen,
P.O. Lamlong, P.S. Litan, Kamjong District, Manipur
- 795010.
- Presently residing at JIM
Blessing Home, Sangaiprou Mamang
Leikai, Airport Road, P.O. &
P.S. Singjamei, Imphal West District, Manipur
- 795008.
....... Respondents
BEFORE
HON’BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioners :: Mr. Sundeep Srivastava, Advocate
Mr. Ashem Mohendro Singh, Advocate
For the Respondents :: Mr. HS Paonam, Sr. Advocate Mr. B. R. Sharma,
Advocate.
Dates of Hearing and reserving Judgment & Order
:: 8/06/2022, 9/06/2022, 17/6/2022,[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 3
11/07/2022, 13/07/2022, 9/07/2022,
22/07/2022, 25/07/2022 and
26/07/2022.
Date of Judgment & Order :: 23.09.2022
JUDGMENT AND ORDER
(CAV)
This Election Petition has been filed by the
petitioner under Section 100(1)(d)(i)&(iv) and under Section
100(1)(b) of the Representation of People Act, 1951 (for short, ―the
RP Act‖) to declare that the election of the first respondent from 2-
Outer Manipur (ST) Parliamentary Constituency to the 17th Lok
Sabha, 2019 as null and void and to declare that the petitioner is the
duly elected Member in the 17th Lok Sabha, 2019 from 2-Outer
Manipur (ST) Parliamentary Constituency under Section 101 of the
RP Act.
2. The Returning Officer of 2-Outer Manipur (ST)
Parliamentary Constituency notified the election schedule for a
Member to the House of People (Lok Sabha) in No.2-Outer Manipur
(ST) Parliamentary Constituency in the following manner:
(a) Last date for making nomination : 25.03.2019
(b) Date of scrutiny of nomination : 26.03.2019
(c) Last date for withdrawal of nomination : 28.03.2019
(d) Date of poll : 11.04.2019
3. Pursuant to the public notice, the petitioner and
others have filed their nomination papers within the time specified
and the Returning Officer thereafter published in the Official Gazette
the list of the candidates contesting in the Lok Sabha Election, 2019
from No.2-Outer Manipur (ST) Parliamentary Constituency. The list
of candidates notified is as under:
1. Houlim Shokhopao Mate @ Benjamin [BJP]
2. Lorho S. Pfoze [Naga People‘s Front]
3. Angam Karung Kom [Nationalist Congress
Party]
4. Hangkhan pautaithul [Janata Dal – United]
5. Ashang Kasar @ Wungnaoshang Kasar @
Wungnao Shang Kasar [North East India
Development Party]
6. Leikhan Kaipu [Independent Candidate]
7. ThangminlienKipgen [National People‘s
Party]
8. K.James [Indian National Congress]
4. Succinctly put, the facts are as follows:-
The petitioner has filed his nomination papers
along with required documents duly sworn by an affidavit before the
Returning Officer. Similarly, respondents 1 to 7 have also filed their
nomination papers. He first filed his affidavit in Form
26 dated 21.3.2019 along with his nomination paper as a candidate
sponsored by the Naga People‘s Front (NPF) before the Returning
Officer. On 26.3.2019, during scrutiny, the Returning Officer
abruptly and improperly accepted the nomination paper of the first
respondent. According to the petitioner, there was no proper scrutiny
as envisaged under Section 36(2) of the RP Act. The affidavit in Form
26 filed by the first respondent suffers from the following defects:4 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
1. The first respondent kept Column 5 of
Para 4 of the affidavit as blank as
nothing is filled up in the relevant
column.
2. The gross total value disclosed by the
first respondent at Para 7-A(ix) showing
Rs.52,23,704/- for self and
Rs.2,35,648/- for spouse are not correct
and misleading, thereby filing false
affidavit.
3. The first respondent failed to disclose
vital material information in his
affidavit pertaining to his non-
agricultural lands and other interest
in immovable properties at Para 7-
B(ii) and (v) despite having owning
immovable properties at Kayinu
Village, Mao, Senapati District,
Manipur, thereby rendering his
nomination as invalid and void.
4. The first respondent failed to disclose
the relevant details for showing a sum
of Rs.1,12,50,000/- at Para 7-B(vi) of
his affidavit, thereby filed a false
affidavit.
5. The first respondent also furnished
misleading and false
particulars/information at Para
No.(9B)(f) of his affidavit, thereby
failed to disclose the details of
contracts entered into by private
companies in which candidate or
spouse or dependents have share.
6. The particulars disclosed in the affidavit
at Part B, Para (11)8(A) for the
candidate and his spouse are falsely
shown to be only Rs.3,24,704/- and
Rs.2,20,648/- respectively. These are
contradictory the particulars entered at
Part A of the same affidavit.
7. The particulars shown at Para
No.(11)8B(iii)(b) of Part B of the
affidavit is also false as the first
respondent disclosed only a sum of
Rs.80,00,000/- being the value of
inherited immovable property at Part
A, Para 7B(iv) of the affidavit.
5. According to the petitioner, the nomination paper
filed by the first respondent should have been rejected by the
Returning Officer, however, the Returning Officer improperly
accepted the nomination of the first respondent, thereby allowing
him to contest the election. Hence, the election of the first respondent
to be the returned candidate is liable to be set aside.
6. Denying the averments in the election petition, the
first respondent filed written statement stating that three nomination
papers along with affidavits were submitted on various dates and
since typographical mistakes were detected in first two nomination
papers and affidavits, the third nomination paper and the affidavit
in Form 26 dated 25.03.2019 were filed on 25.03.2019 and the said[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 5
nomination paper along with the said affidavit was accepted by the
Returning Officer at the time of scrutiny.
7. It is stated that being proposed by Robert Tallu
Maram, whose name is found at Serial No.4 in Part No.58 of the
electoral roll for 48-Mao (ST) with 2-Outer Manipur (ST)
Parliamentary Constituency, the nomination paper dated 25.03.2019
along with the duly sworn affidavit dated 25.03.2019 was submitted and
subsequently, the same was accepted by the Returning Officer after
examining the nomination paper in accordance with Section 36 of the
RP Act. Based on the said nomination paper and the affidavit in
Form 26 dated 25.03.2019, the first respondent was allowed to
contest the election and was elected in the 17th Lok Sabha election from
2- Outer Manipur (ST) Parliamentary Constituency. It is stated that all
the provisions of the RP Act and the mandatory instructions of the
Election Commission of India were strictly complied with by the first
respondent to the satisfaction of the Election Commission of India.
8. The first respondent denied the statement of the
petitioner that he has failed to maintain true and correct account of all
expenditures in connection with the election in violation of Section 77
of the RP Act and thereby committed corrupt practice under Section
123(6) of the RP Act. In fact, the mandate of Section 77 of the RP
Act was complied with and details were furnished to the satisfaction
of the Election Commission of India.
9. According to the first respondent, in the entry in
the Bank Register in Part-C, due to inadvertent mistake, the date has
been entered as 16.04.2019 instead of 16.05.2019 and that the last
bank balance of the first respondent is Rs.5,83,782/-. Therefore, there
is no conflict in the disclosure of the two documents, as the last
transaction made was on 16.05.2019 and the closing balance on that
day is Rs.5,83,782/- only. Further, all expenditures so incurred are
explained and accompanied by bills and vouchers submitted to the
satisfaction of the Election Commission of India.
10. It is stated that no one donated any amount
exceeding Rs.10,000/- into the donation box in public rally held on
20.03.2019 and, as such, names and address of persons/entities
making donation exceeding Rs.10,000/- could not have been
disclosed in any case, as there were none. The first respondent or his
agents have not committed any fraudulent acts or corrupt practices
and have sincerely acted as per law and instructions to the utmost
satisfaction of the Election Commission of India.
11. According to the first respondent, the nomination
paper of the first respondent was rightly accepted by the Returning
Officer in accordance with Section 36 of the RP Act and the improper
acceptance of the nomination paper of the first respondent by the
Returning Officer as pleaded by the petitioner is denied. Hence, the
election petition is liable to be dismissed.
12. The petitioner filed replication stating that the first
respondent may submit various nomination papers along with sworn
affidavit in Form 26, however, the Returning Officer accepted the
nomination paper along with affidavit in Form 26 dated 21.03.2019
and the said affidavit dated 21.03.2019 was uploaded at the official
website of the Election Commission of India as per the guidelines of
the Commission. It is stated that the affidavit dated 25.03.2019 was
never affixed in a conspicuous place at the office of the Returning
Officer for information of the electors relating to 2-Outer Manipur
(ST) Parliamentary Constituency to the 17th Lok Sabha as per
Section 33A Clause 3 of the RP Act and also as per the instruction of
the Election Commission of India dated 15.06.2009.
13. It is stated that the Returning Officer accepted the6 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
affidavit dated 21.03.2019 after scrutiny. When scrutiny was held on
26.03.2019, the nomination paper dated 21.3.2019 along with Form
26 dated 21.03.2019 were the subject matter and the nomination
paper dated 25.03.2019 and the affidavit were not the subject matter
of scrutiny. After scrutiny, the nomination paper dated 21.3.2019
along with affidavit in Form 26 dated 21.03.2019 were uploaded in
the official website and the voters could access the same from the
website till date.
14. According to the petitioner, the Returning Officer
abruptly and improperly accepted the nomination paper of the first
respondent along with the affidavit dated 21.3.2019. As per the format
provided, a candidate has to fill up/mention the name of spouse and
dependents in Column 5 of Para No.4 of affidavit in Form 26,
whereas in the instant case, the first respondent has failed to fill up
the name of the spouse and dependents.
15. It is stated that as per the affidavit in Form 26
dated 21.3.2019 at Para No.7A(ix), the gross total value of assets of
the first respondent should be Rs.53,24,704/- and his spouse should
be Rs.3,70,648/-, whereas the first respondent showed it as
Rs.52,23,704/- for himself and Rs.2,35,648/- for his spouse. The first
respondent failed to open the bank account which is required to be
opened one day ahead of filing his nomination paper along with his
affidavit dated 21.03.2019 as per the mandatory instructions of the
Election Commission of India. All account expenditures including
the expenditure for buying nomination paper should be expended
through his bank account opened specifically for the purpose of his
election expenditure. There was no separate election bank account of
the first respondent on 21.03.2019. The acceptance of cash exceeding
Rs.10,000/- by the first respondent from the donors is against the
mandatory instruction and is also illegal which amounts to corrupt
practice.
16. Upon consideration of the pleadings, this Court
framed the following issues:
1. Whether the affidavit in Form 26 filed
under Rule 4A of the Conduct of
Election Rules, 1961 by the Respondent
No.1 suffers from defects of substantial
character and if it is suffered from
defects, then whether it would affect the
result the Election of 2-Outer Manipur
(ST) Parliamentary Constituency to the
17th Lok Sabha 2019?
2. Whether the affidavit in Form 26 dated
21.03.2019 along with the Nomination
paper was submitted by the Respondent
No.1 before the Returning Officer, 2-
Outer Manipur (ST) Parliamentary
Constituency to the 17th Lok Sabha
2019?
3. Whether the affidavit in Form 26 dated
21.03.2019 along with the Nomination
paper was uploaded by the official of
the Election Commission of India in its
website www.ceomanipur.nic.in for
accessing the same by the voters/electors
or general public?
4. Whether the Respondent No.1 has
failed to strictly follow the instructions
of the Election Commission of India in[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 7
relation to separate Bank, election
expenditure etc.? If failed what is its
effect?
5. Whether the Respondent No.1 or his
authorized agent in the election
committed corrupt practice as defined
under Section 123(6) of the
Representation of People‘s Act, 1951?
If yes, is in materially affected the
result of the election of 2-Outer
Manipur (ST) Parliamentary
Constituency to the 17th Lok Sabha
2019?
6. Whether the election of the Respondent
No.1 as the Returned Candidate from
2- Outer Manipur (ST) Parliamentary
Constituency in the General Election to
the 17th Lok Sabha 2019 is liable to be
declared null and void?
7. Whether the Election Petitioner is
entitled to be declared as the Returned
Candidate
of 2-Outer Manipur (ST) Parliamentary
Constituency in the 17th Lok Sabha
Election 2019?
17. On the side of the petitioner, P.Ws.1 to 4 were
examined and Exs.Z1 to Z16 have been marked. On the side of the first
respondent, DWs1 to 7 were examined and Exs.D1 to D5/54) have
been marked. Apart from marking the above exhibits, Exs.X1 to X7
and Exx.R1 to R5/32 were also marked.
18. Since Issue Nos.1 to 6 are intertwined and based on
the same set of documents, they were taken up together.
Issue Nos.1 to 6:
19. The petitioner challenged the election of the first
respondent stating that during scrutiny, the Returning Officer of 2-
Outer Manipur (ST) Parliamentary Constituency abruptly and
improperly accepted the nomination papers of the first respondent
dated 21.03.2019. The petitioner pointed out that the first respondent
kept Column 5 of Para 4 of the affidavit in Form 26 dated 21.03.2019
as blank; gross total value disclosed by the first respondent at Para 7-
A(ix) is incorrect; material information pertaining to his non-
agricultural lands and other
interest in immovable properties at Para 7-B (ii) and (v) despite
owning immovable properties; failed to disclose the relevant details
for showing a sum of Rs.1,12,50,000/- at Para 7-B (vi); false
information at Para (9B)(f); falsely shown Rs.3,24,704/- and
Rs.2,20,648/- respectively at Part-B, Para (11)8(A) for the candidate
and his spouse; particulars shown at Para (11)8B(iii)(b) of Part B, as
the first respondent disclosed only a sum of Rs.80,00,000/- being the
value of the inherited immovable property at Part A, Para 7B(iv).
20. The case of the petitioner is that the first respondent
has not complied with the prescribed format of Form 26, left certain
columns blank, did not disclose the movable and immovable assets of
himself, his spouse and his dependents, made false statements on
oath and have concealed material facts in Form 26, which has
materially affected the election of the petitioner. According to the
petitioner, the returning officer ought to have rejected the nomination
paper of the first respondent under Section 36(2) of the RP Act, as8 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
withholding of important information, including his non-agricultural
land and non-disclosure of contract details entered by the private
company in which the first respondent has shares and furnishing
various false information, are defects of substantive nature.
21. It is the case of the first respondent that three
nomination papers along with affidavits were submitted on various
dates. Since typographical mistakes were detected in the first two
nomination papers and affidavits, the third nomination paper and the
affidavit in Form 26 dated 25.03.2019 was filed and the said
nomination paper along with the said affidavit was alone accepted by
the Returning Officer at the time of scrutiny.
22. Admittedly, there is no specific issue framed qua
filing of the third nomination paper dated 25.03.2019 and its
acceptance by the Returning Officer. Since the first respondent raised
an issue that the petitioner chose not to plead anything about the
nomination paper and the affidavit dated 25.03.2019, for proper
adjudication of the matter, this Court is inclined to address the same
first.
23. Mr. Sundeep Srivastava, the learned counsel for
the petitioner submitted that the Returning Officer accepted the
nomination paper along with affidavit in Form 26 dated 21.3.2019
and only the said affidavit dated 21.3.2019 was
uploaded in the official website of the Election Commission of India.
Moreover, the affidavit dated 25.03.2019 was never affixed in a
conspicuous place at the office of the Returning Officer for the
information of the electors/general public relating to the 2-Outer
Manipur (ST) Parliamentary Constituency to the 17th Lok Sabha as
per Section 33 Clause 3 of the RP Act and also the
guidelines/instructions of the Election Commission of India.
24. The learned counsel for the petitioner further
submitted that the first respondent has violated the mandate of
Sections 33 and 33A of the RP Act and has not complied with the
prescribed format of Form 26, left certain columns blank, did not
disclose the movable and immovable assets of himself, his spouse and
his dependents, made false statements on oath and has concealed
material facts in Form 26, which has materially affected the election
of the petitioner.
25. Per contra, Mr. HS Paonam, the learned senior
counsel for the first respondent submitted that there is no requirement
of law that multiple nomination paper should be accompanied with
the same affidavit in Form 26 and the argument is just a mere
submission of the petitioner without any
basis whatsoever. The learned senior counsel added that a fresh
revised affidavit in Form 26 is permissible in law. As such, the first
respondent submitted a revised Form 26 dated 25.03.2019 along with
his nomination paper dated 25.03.2019, which was accepted after
proper scrutiny by the Returning Officer.
26. The learned senior counsel further submitted that
due to technical problem, the Returning Officer was unable to upload
more than one Form 26 of each candidate on the website and in this
regard he made a reference to the chief- examination of the
Returning Officer (DW7). According to him, the chief-examination of
DW7 was not shaken during cross- examination by the counsel for
the petitioner. Further, there is no contradiction about the
requirement of the Election Commission of India to upload Form 26
within 24 hours from filing of the nomination paper by a candidate.
He would submit that as far as the nomination paper and Form 26
dated 21.3.2019 submitted before the Returning Officer are
concerned, the same has been displayed on the notice board and[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 9
uploaded within 24 hours from the time it was submitted. Therefore,
the Form 26 dated 21.3.2019 has been uploaded latest by 22.3.2019
27. The learned senior counsel urged that, in his
evidence, DW7 categorically stated that the subsequently filed
revised Form 26 could not be uploaded as Form 26 dated 21.03.2019
was already uploaded on the website and, therefore, Form 26 dated
25.3.2019 could not be uploaded on the website. The learned senior
counsel submits that the aforesaid evidence of the Returning Officer
has not been disproved by the petitioner.
28. Admittedly, technical problem canvassed by the
first respondent has not been proved. It is not the case of the first
respondent that the contesting candidates involved in the case have
also filed two or three Form 26. Further, the other respondents have
not come forwarded and stated anything about the alleged technical
problem alleged by the first respondent. In the absence of any proof,
this Court cannot come to a conclusion that more than one affidavit
in Form 26 cannot be uploaded.
29. The first respondent, in paragraph 10 of the written
statement, stated that he had filed three nomination papers and since
defects on the first and second nomination papers were detected, he
filed third nomination paper, which is the correct
nomination paper. Admittedly, there is no record for the expenditure
for filing the third nomination paper. Assuming without admitting,
the submission of the first respondent is that the affidavit in Form 26
cannot be filed without withdrawing the incorrect affidavit in Form
26.
30. There is no record to show that the first respondent
had withdrawn the first two nomination papers and filed the third one.
The first respondent cannot file two or three different affidavits in
Form 26 for filing nomination paper on different occasions without
taking the permission of the authority concerned, if he thinks that the
first two are defective. Moreover, the permission granted by the
authority has not been produced.
31. In this regard, the cross-examination of D.W.7,
who is the then Returning Officer of 2-Outer Manipur (ST)
Parliamentary Constituency in 17th Lok Sabha 2019, is as follows:
Q1 : What was your position in the office of the Returning Officer 2-Outer Manipur (ST) Parliamentary
Constituency in 17th Lok Sabha Election, 2019?
Ans. : I was discharging my duty as Returning Officer of the 2-Outer Manipur (ST) Parliamentary
Constituency in 17th Lok Sabha Election, 2019.
Q2. : Where are you presently serving/posted?
Ans. : Right now I am serving as Special Secretary, Health & Family Welfare, Govt. of Manipur and
Project Director, MACS.
Q3 : How many nomination papers can a candidate submit before the Returning Officer in the instant
that of 2-Outer Manipur (ST) Parliamentary Constituency in 17th Lok Sabha Election, 2019?
Ans. : Under Sub-Section (6) of Section 33 of the Representation of People Act, 1951, a maximum 4
(four) Nomination Papers only can be presented by a candidate or on behalf of any candidate in the
same constituency.
Q4. : How many Nomination Papers and Form-26 affidavit did the Returned Candidate submit before
your good Office?
Ans. : I think 3 (three) Nomination Papers along with Form-26 affidavit were submitted by the Returned
Candidate in the Office of the Returning Officer, 2- Outer Manipur (ST) Parliamentary Constituency
in 17th Lok Sabha Election, 2019.
Q5 : Were the said 3 (three) Nomination Papers along with Form-26 affidavit if submitted by the
Returned Candidate displayed on the Notice Board in the Office of Returning Officer, 2-Outer
Manipur (ST) Parliamentary Constituency in 17th Lok Sabha Election, 2019?
Ans. : Copies of all the Nomination Papers along with copies of Form-26 affidavits accompanying the10 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
Nomination Forms were submitted by the Returned Candidate displayed on the Notice Board in
the Office of Returning Officer, 2-Outer Manipur (ST) Parliamentary Constituency in 17th Lok
Sabha Election, 2019 on the same day nominations were filed.
Q6 : What does Instructions/Guidelines of Election Commission of India says regarding publication of
Nomination Papers of Candidates of 17th Lok Sabha Election, 2019 on their official website?
Ans. : All affidavits filed by the candidates shall be uploaded on the Election Commission of India's
website within 24 (twenty four) hours soon after the candidate files the same.
In the instant, the witness voluntarily states that however, we did face some technical issues in
uploading more than 1 (one) affidavit for each candidate on the ECI's website.
32. The first respondent in his evidence and in the
written statement admitted the filing of the nomination paper along
with affidavit in Form 26 on 21.03.2019. Similarly, P.W.4., the then
Additional Chief Electoral officer, Manipur in his evidence
categorically stated the filing of nomination paper along with
affidavit in Form 26 by the first respondent on 21.03.2019. The
evidence of P.W.4 is also to the effect that the affidavit in Form 26
dated 21.03.2019 was placed in a conspicuous place for public view
and was uploaded on the official website.
33. In the background of the evidence referred to
above, when this Court viewed the official website of the Election
Commission of India, it is seen that the nomination
papers submitted by the candidates for 2-Outer Manipur (ST)
Parliamentary Constituency to the 17th Lok Sabha, 2019 were duly
uploaded. When this Court clicked the first respondent‘s nomination
paper, this Court is able to see the affidavit in Form 26 dated
21.03.2019 and not the affidavit in Form 26 dated 25.03.2019 said to
have been filed by the first respondent. Since affidavit in Form 26
dated 21.03.2019 of the first respondent was officially uploaded in the
website of the Election Commission of India, this Court left with no
other option except to look into the nomination paper and the
affidavit in Form 26 dated 21.03.2019 of the first respondent and not
the nomination paper and affidavit in Form 26 dated 25.03.2019, as
the same was not properly disseminated and uploaded in the website.
34. On wading through the oral evidence and
documents produced by the first respondent, it is clear that the
Returning Officer accepted the nomination paper along with affidavit
in Form 26 dated 21.3.2019 of the first respondent and the said
affidavit was only uploaded in the official website. Since the
Returning Officer accepted the affidavit in Form 26 dated
21.03.2019 and uploaded the same in the website of the Election
Commission of India for deciding the matter further, the affidavit in
Form 26 dated 21.3.2019 is referred to.
35. The defects pointed out by the petitioner in the
affidavit in Form 26 dated 21.03.2019 are as under:
Column 5 of Para 4:
(4). Details of Permanent Account Number (PAN) and status of filing
of Income Tax return.
Sl. Names PAN The financial year for Total income shown
No. which the last in Income-Tax return
Income-tax return has (in Rupees) for the
been filed last five Financial
Years (as on the 31st
March)
1. Self ASLPP2084L N.A. (i)
(ii)
(iii)
(iv) (v))[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 11
2. Spouse AQRPM4140Q N.A. (i)
(ii)
(iii)
(iv) (v))
3 HUF (If the Candidate N.A. N.A. (i)
is Karta or Coparcener) (ii)
(iii)
(iv) (v))
4. Dependent-1 N.A. N.A. (i)
(ii)
(iii)
(iv) (v))
5. Dependent-2 N.A. N.A. (i)
(ii)
(iii)
(iv) (v))
6. Dependent-3 N.A. N.A. (i)
(ii)
(iii)
(iv) (v))
Para 7-A(ix)
(ix) Gross Rs.52,23,704/- Rs.2,35,648/- N.A. N.A. N.A. N.A.
Total
Value
Para 7-B(ii) and (v)
(ii) Non- N.A. N.A. N.A. N.A. N.A. N.A.
Agricultural
land
Location(s)
Survey
number(s)
Area (total N.A. N.A. N.A. N.A. N.A. N.A.
measurement
in sq. ft.
Whether N.A. N.A. N.A. N.A. N.A. N.A.
inherited
property
(Yes/No)
Date of N.A. N.A. N.A. N.A. N.A. N.A.
purchase in
case of self-
acquired
property
Cost of land N.A. N.A. N.A. N.A. N.A. N.A.
(in case of
purchase) at
the time of
purchase
Any N.A. N.A. N.A. N.A. N.A. N.A.
investment on
the land by
way of
development,
construction
etc.12 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
Approximate N.A. N.A. N.A. N.A. N.A. N.A.
current market
value
(v) Others (such as Rs.2,50,000/- N.A. N.A. N.A. N.A. N.A.
interest in
property)
(vi) Total of Rs.1,12,50,000/- N.A. N.A. N.A. N.A. N.A.
current
market value
of
(i) to (v)
above
(9B)(f). Details of contracts, entered into by private companies in
which candidate or spouse or dependents have share: 500,000 shares,
Intouch Naturals Private Limited.
(11) ABSTRACT OF THE DETAILS GIVEN IN (1) TO (1)) OF
PART A:
8. Details of Assets and Liabilities (Including offshore
assets) in Rupees
A Description Self Self Spouse HU F Dep end Dep Depe
Spouse ent- 1 end ent- ndent
2 -3
Movable Assets Rs.3,24,7 04/- Rs.2,20,6 48/- N.A N.A. N.A. N.A.
(Total Value) .
B Immovable Assets
III Inherited assets Rs.82,50,000/- N.A. N.A. N.A. N.A. N.A.
b. (Total value)
36. Since the petitioner pleaded that affidavit in Form
26 dated 21.03.2019 suffers from defects of substantial
character, like non-filling of relevant columns; non-adherence to the
instruction of the Election Commission of India regarding opening of
separate bank, election expenditure and corrupt practices, it would be
necessary to look into the affidavit in Form 26 dated 21.03.2019.
37. On a perusal of affidavit in Form 26 dated
21.03.2019 [Ext.Z/4], this Court finds that the first respondent kept
Column 5 of Para 4 of the affidavit blank. Further in Para 7-A(ix),the
first respondent has not correctly disclosed the gross total value for
himself and his spouse. Similarly, in Para 7-B(ii) and (v), the first
respondent failed to disclose information qua non-agricultural lands
and other interest in immovable properties. Further, the first
respondent failed to disclose the relevant details for showing a sum
of Rs.1,12,50,000/- at Para 7-B (vi). He has also furnished false
information in Para (9B)(f). The first respondent falsely shown
Rs.3,24,704/- and Rs.2,20,648/- respectively at Part-B, Para (11)8(A)
for himself and his spouse. False particulars are shown at Para
(11)8B(iii)(b) of Part B, as the first respondent disclosed only a sum[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 13
of Rs.80,00,000/- being the value of the inherited immovable
property at Part A, Para 7B(iv).
38. During his cross-examination, the first respondent
[D.W.5] stated as under:
Q.12(a) : Do you agree that you have not mentioned the name of your spouse at para no.4 at no.2
of your Form-26 affidavit dated 21.03.2019?
Ans. : Yes
Q.12(b) : Do you agree that you have not mentioned regarding the non-agricultural land at the
relevant column of para no.(7)(B)(ii) of your Form-26 affidavit dated 21.03.2019?
Ans. : Yes
Q.12(c) : Do you agree that you have not mentioned detail of profession or occupation of your
spouse at para no.(9)(b) of your Form-26 affidavit dated 21.03.2019?
Ans. : Yes
39. On reading of the cross-examination of D.W.5, it is
seen that an objection has been raised on behalf of the first
respondent for asking the aforesaid questions by stating that after
coming to know the mistakes in Form-26 dated 21.03.2019, the first
respondent submitted a revised Form-26 on 25.03.2019. In view of
the finding arrived at by this Court in the preceding paragraph that
the only Form-26 officially uploaded in the website of the Election
Commission of India is the affidavit in Form-26 dated 21.03.2019,
the said objection raised by the first respondent during cross-
examination is unsustainable. As such, the learned counsel for the
petitioner has rightly put the aforesaid suggestion in the form of
Q.Nos.12(a) to 12(c) and the first respondent has also rightly given
answer ―Yes‖ for all three questions.
40. During the cross-examination, when the first
respondent was put a question that "Do you agree that all documents
at Ext.Z/7 (Part-A Register), Ext.Z/8 (Part-B Register) and Ext.Z/9
(Part-C Register) are documents pertaining to your election
expenditures of 17th Lok Sabha Election, 2019 of 2-Outer Manipur
Parliamentary Constituency", the answer given by the first respondent
was 'Yes'. In fact, the first respondent admitted that he left blank the
details of his spouse, her source of income, details of returns for the
last five years, details of his dependent, details of his non-agricultural
land, details of movable assets and have falsely stated his and his
spouse‘s jewelleries, cash in hand as well as the value of the property
in Form 26 dated 21.03.2019.
41. At this juncture, Mr. HS Paonam, the learned senior
counsel for the first respondent submitted that the first respondent is
living in the Hill District of Manipur, where the Manipur Land
Revenue and Land Reforms Act, 1960 is extended.
42. In reply, the learned counsel for the petitioner
submitted that the land within the Hill area except some area is the
unsurveyed land and accordingly, there is no recorded document but
the people who are living at Hill area have obtained their land through
Headman or Village Chief by paying Hill House Tax and that the Hill
people can sell their land amongst themselves and they can construct,
develop their land as similar with land in the Valley area of Manipur.
43. According to the petitioner, the first respondent has
a non-agricultural land where he has constructed his house. In his
evidence, the first respondent admitted the said fact. Therefore, the
first respondent is duty bound to disclose his non-agricultural land
where building/house was constructed in Form-26 dated 21.03.2019.
On a further reading of the deposition of the first respondent, when
the learned counsel for the petitioner posed a question ―Do you agree
that you have not mentioned regarding the Non-agricultural land at the
relevant column of para No.(7)(B)(ii) of your Form 26 affidavit14 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
dated 21.03.2019?, the first respondent replied ―Yes‖. According
to the petitioner, noting the aforesaid non-disclosure of the material
facts, the Returning Officer ought to have rejected the nomination
paper of the first respondent.
44. The learned counsel for the petitioner submitted
that Section 77 of the RP Act contains 3 sub-section i.e. (i) opening
of separate election bank account; (ii) maintenance of election
expenditures account as prescribed by law/guidelines/instructions and
election expenditures should not exceed the maximum limit for
expenditures as prescribed. Highlighting the above three conditions,
the learned counsel for the petitioner argued that the first respondent
has violated the aforesaid.
45. Rebutting the argument of the learned counsel for
the petitioner, the learned senior counsel for the first respondent
submitted that it has been proved that the election expenditure has
been accepted by the competent authority being found to be in
compliance and in consonance with the relevant laws and rules and
also submitted within the time. He would submit that the petitioner is
oblivious of the very fact that through the evidences of the first
respondent and the official witnesses, it has been proved that there
were no illegality committed and no failure on the part of the first
respondent to properly maintain his election expenditures.
46. The learned senior counsel added that the petitioner
has failed to appreciate the fact that his Election Petition lacks
material particulars and material facts and could not prove the
allegations made by him against the first respondent of illegal act and
fraudulent act in respect to election expenditure and corrupt practices
being baseless and rightly so, as there were no violation of any
instructions/guidelines of the Election Commission of India.
47. The learned senior counsel further submitted that
the Election Petition must contain material facts and if there are
allegations of corrupt practice, it must contain full particulars.
Further, the behavior, character and demeanor of the witness to be
taken into account is a matter of prime consideration. He also
submitted that there are lot of discrepancies between the pleadings of
the Election Petition and the statements of witnesses examined on the
side of the petitioner qua the alleged corrupt practice levelled against
the first respondent. To fortify the aforesaid submission, the learned
senior counsel placed reliance upon a decision of the Hon‘ble
Supreme Court in the case of Govind Singh v. Harchand Kaur,
(2011) 2 SCC 621.
48. By placing reliance on the decision of the Hon‘ble
Supreme Court in the case of Virender Nath Gautam v. Satpal Singh
and others, (2007) 3 SCC 617, the learned senior counsel submitted
that in the absence of pleading, a party cannot be allowed to lead
evidence. Here, in the case on hand, most of the evidence let in by the
petitioner is without pleading.
49. The learned senior counsel urged that the petitioner
failed to appreciate the actual fact that the first respondent has
provided true and correct statement of election expenditure which has
been duly accepted by the authority concerned.
50. Highlighting the evidence of P.W.3, Bank Manager
of the IDBI Bank, Imphal Branch, the learned senior counsel for the
first respondent submitted that in his evidence, P.W.4 clearly
answered that the bank account of the first respondent was opened on
24.3.2019 and has submitted and exhibited the said account statement
as Ext.Z/12.
51. Countering the aforesaid arguments of learned
senior counsel for the first respondent, the learned counsel for the[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 15
petitioner highlighted the following aspects regarding opening of
separate election bank account:
1. The first respondent opened his election
separate bank account bearing Account
No.1219102999995449 of IBBI, Imphal
on 24.03.2019. First amount for opening
the said account was deposited a sum of
Rs.20 lakh from the first respondent on
26.03.2019.
2. The first respondent never routed the
expenditure of Rs.19,250/- incurred on
21.03.2019 through his election separate
bank account.
3. The first respondent never opened his
election separate bank account prior to
filing of nomination.
52. Before dealing with the submissions advanced by
the learned counsel for the petitioner and the learned senior counsel
for the first respondent, firstly, it would be apposite to reproduce
and examine the relevant legal framework contained in the RP Act
hereunder:
―Section 33 of the Act deals with
Presentation of Nomination Paper and
requirements for a valid nomination, which is
reproduced as under:
"33. Presentation of nomination paper and
requirements for a valid nomination.--(1) On
or before the date appointed under clause (a)
of Section 30 each candidate shall, either in
person or by his proposer, between the hours
of eleven o'clock in the forenoon and
three o'clock in the afternoon deliver to the
returning officer at the place specified in
this behalf in the notice issued under Section
31 a nomination paper completed in the
prescribed form and signed by the candidate
and by an elector of the constituency as
proposer: [Provided that a candidate not
set up by a recognised political party, shall
not be deemed to be duly nominated for
election from a constituency unless the
nomination paper is subscribed by ten
proposers being electors of the constituency:
Provided further that no nomination paper
shall be delivered to the Returning Officer on
a day which is a public holiday.
Provided also that in the case of a local
authorities' constituency, graduates'
constituency or teachers' constituency, the
reference to ''an elector of the constituency as
proposer' shall be construed as a reference to
ten per cent of the electors of the constituency
or ten such electors, whichever is less, as
proposers.
(1-A) Notwithstanding anything contained in
sub-section (1), for election to the Legislative
Assembly of Sikkim (deemed to be the
Legislative Assembly of that State duly16 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
constituted under the Constitution), the
nomination paper to be delivered to the
returning officer shall be in such form and
manner as may be prescribed:
Provided that the said nomination paper shall
be subscribed by the candidate as assenting to
the nomination, and—
(a) in the case of a seat reserved for Sikkimese
of Bhutia-Lepcha origin, also by at least twenty
electors of the constituency as proposers and
twenty electors of the constituency as
seconders;
(b) in the case of a seat reserved for Sanghas,
also by at least twenty electors of the
constituency as proposers and at least twenty
electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese
of Nepali origin, by an elector of the
constituency as proposer:
Provided further that no nomination paper
shall be delivered to the returning officer on a
day which is a public holiday.
(2) In a constituency where any seat is
reserved, a candidate shall not be deemed to
be qualified to be chosen to fill that seat unless
his nomination paper contains a declaration by
him specifying the particular caste or tribe of
which he is a member and the area in relation
to which that caste or tribe is a Scheduled
Caste or, as the case may be, a Scheduled
Tribe of the State.
(3) Where the candidate is a person who,
having held any office referred to in
3[Section 9] has been dismissed and a period
of five years has not elapsed since the
dismissal, such person shall not be deemed to
be duly nominated as a candidate unless his
nomination paper is accompanied by a
certificate issued in the prescribed manner by
the Election Commission to the effect that he
has not been dismissed for corruption or
disloyalty to the State.
(4) On the presentation of a nomination
paper, the returning officer shall satisfy
himself that the names and electoral roll
numbers of the candidate and his proposer as
entered in the nomination paper are the same
as those entered in the electoral rolls:
Provided that no misnomer or inaccurate
description or clerical, technical or printing
error in regard to the name of the candidate or
his proposer or any other person, or in regard
to any place, mentioned in the electoral roll or
the nomination paper and no clerical, technical
or printing error in regard to the electoral roll
numbers of any such person in the electoral
roll or the nomination paper, shall affect the
full operation of the electoral roll or the[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 17
nomination paper with respect to such person
or place in any case where the description in
regard to the name of the person or place is
such as to be commonly understood; and the
returning officer shall permit any such
misnomer or inaccurate description or
clerical, technical or printing error to be
corrected and where necessary, direct that
any such misnomer, inaccurate description,
clerical, technical or printing error in the
electoral roll or in the nomination paper shall
be overlooked.
(5) Where the candidate is an elector of a
different constituency, a copy of the electoral
roll of that constituency or of the relevant part
thereof or a certified copy of the relevant
entries in such roll shall, unless it has been
filed along with the nomination paper, be
produced before the returning officer at the
time of scrutiny.
(6) Nothing in this section shall prevent any
candidate from being nominated by more than
one nomination paper:
Provided that not more than four nomination
papers shall be presented by or on behalf of
any candidate or accepted by the returning
officer for election in the same constituency.
(7) Notwithstanding anything contained in
sub- section (6) or in any other provisions of
this Act, a person shall not be nominated as a
candidate for election,--
(a) in the case of a general election to the
House of the People (whether or not held
simultaneously from all Parliamentary
constituencies), from more than two
Parliamentary constituencies;
(b) in the case of a general election to the
Legislative Assembly of a State (whether or
not held simultaneously from all Assembly
constituencies), from more than two Assembly
constituencies in that State;
(c) in the case of a biennial election to the
Legislative Council of a State having such
Council, from more than two Council
constituencies in the State;
(d) in the case of a biennial election to the
Council of States for filling two or more seats
allotted to a State, for filling more than two
such seats;
(e) in the case of bye-elections to the House
of the People from two or more Parliamentary
constituencies which are held simultaneously,
from more than two such Parliamentary
constituencies;
(f) in the case of bye-elections to the
Legislative Assembly of a State from two or
more Assembly constituencies which are held
simultaneously, from more than two such18 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
Assembly constituencies;
(g) in the case of bye-elections to the
Council of States for filling two or more seats
allotted to a State, which are held
simultaneously, for filling more than two
such seats;
(h) in the case of bye-elections to the
Legislative Council of a State having such
Council from two or more Council
constituencies which are held simultaneously,
from more than two such Council
constituencies.
Explanation.--For the purposes of this sub-
section, two or more bye-elections shall be
deemed to be held simultaneously where the
notification calling such bye-elections are
issued by the Election Commission under
Sections 147, 149, 150 or, as the case may be,
151 on the same date.
Section 36 of the Act deals with scrutiny of
nominations and is extracted below :-
"36. Scrutiny of nominations.--(1) On the
date fixed for the scrutiny of nominations
under
Section 30, the candidates, their election
agents, one proposer of each candidate, and
one other person duly authorised in writing
by each candidate, but no other person, may
attend at such time and place as the returning
officer may appoint; and the returning officer
shall give them all reasonable facilities for
examining the nomination papers of all
candidates which have been delivered within
the time and in the manner laid down in
Section 33.
(2) The returning officer shall then examine
the nomination papers and shall decide all
objections which may be made to any
nomination and may, either on such objection
or on his own motion, after such summary
inquiry, if any, as he thinks necessary, reject
any nomination on any of the following
grounds:--
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not
qualified or is disqualified for being chosen to
fill the seat under any of the following
provisions that may be applicable, namely:--
Articles 84, 102, 173 and 191, [Part II of this
Act and Sections 4 and 14 of the Government
of Union Territories Act, 1963]; or
(b) that there has been a failure to comply
with any of the provisions of Section 33 or
Section 34; or
(c) that the signature of the candidate or the
proposer on the nomination paper is not
genuine.[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 19
(3) Nothing contained in clause (b) or clause
(c) of sub-section (2) shall be deemed to
authorise the rejection of the nomination of
any candidate on the ground of any irregularity
in respect of a nomination paper, if the
candidate has been duly nominated by means
of another nomination paper in respect of
which no irregularity has been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect
which is not of a substantial character.
(5) The returning officer shall hold the
scrutiny on the date appointed in this
behalf under clause (b) of Section 30 and shall
not allow any adjournment of the proceedings
except when such proceedings are interrupted
or obstructed by riot or open violence or by
causes beyond his control: Provided that
in case an objection is raised by the returning
officer or is made by any other person the
candidate concerned may be allowed time to
rebut it not later than the next day but one
following the date fixed for scrutiny, and the
returning officer shall record his decision on
the date to which the proceedings have been
adjourned.
(6) The returning officer shall endorse on
each nomination paper his decision accepting
or rejecting the same and, if the nomination
paper is rejected, shall record in writing a
brief statement of his reasons for such
rejection.
(7) For the purposes of this section, a
certified copy of an entry in the electoral roll
for the time being in force of a constituency
shall be conclusive evidence of the fact that
the person referred to in that entry is an elector
for that constituency, unless it is proved that
he is subject to a disqualification mentioned
in Section 16 of the Representation of the
People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers
have been scrutinized and decisions accepting
or rejecting the same have been recorded, the
returning officer shall prepare a list of validly
nominated candidates, that is to say,
candidates whose nominations have been
found valid, and affix it to his notice board.
53. A careful perusal of the aforesaid provisions of the
RP Act goes to show that Section 33 deals with presentation of valid
nomination papers and Section 36 deals as to whether a nomination
is valid one or whether the candidate incurred any disqualification
for filing a nomination or failed to comply with any of the statutory
provisions and whether the signature of the candidate or the proposer
on the nomination papers is genuine or not or every column is filled by
the candidate according to the norms and guidelines issued by the
Election Commission of India etc. If a candidate incurs any
disqualification, his nomination is liable to be rejected under Section
36(2)(a) of the RP Act and if the candidate fails to fulfill or comply20 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
with the provisions of Section 33 of the RP Act in presenting a valid
nomination such as subscribing ten proposers or any other
guidelines/rules, if he is not a candidate set up by a recognized
political party or if he is contesting on a reserved seat and if the caste
certificate is not filed, such nomination cannot be treated as a valid
nomination and therefore, it is liable to be rejected for failure to
comply with the statutory provisions of Section 33 of the RP Act or
if there is no requisite deposit made under Section 34 of the RP Act,
then also such nominations are liable to be dismissed for failure to
comply with the provisions of Section 34 of the RP Act.
54. In the backdrop of the aforesaid legal position, it is
imminently clear that whenever there is an improper acceptance or
rejection of the nomination papers on the above grounds, it shall be
deemed that the election of a returned candidate is materially
affected for non-compliance of the provisions of the Constitution or
the provisions of the RP Act or the Rules made thereunder. Cases
where the candidates are not entitled to contest by reason of illegal
acceptance of their nomination papers are liable to be equated to such
of the cases where the nominations of candidates were improperly
rejected for the purpose of declaring the election as void.
55. At this juncture, it apposite to point out that in a
catena of decisions, the Hon‘ble Supreme Court made it mandatory
to disclose array of information about the contestant and his family
members. Few of the decisions of the Hon‘ble Supreme Court on this
point are given hereunder for ready reference.
56. The decision in the case of Union of India v.
Association for Democratic Reforms and another (2002) 5 SCC
294 is a watershed on electoral reforms ushering in new norms,
wherein series of directions were issued on disclosure of information
by contesting candidate.
―46. To sum up the legal and constitutional
position which emerges from the aforesaid
discussion, it can be stated that:
1.....
2.....
3.....
4. To maintain the purity of elections and in
particular to bring transparency in the process
of election, the Commission can ask the
candidates about the expenditure incurred by
the political parties and this transparency in
the process of election would include
transparency of a candidate who seeks
election or re-election. In a democracy, the
electoral process has a strategic role. The little
man of this country would have basic
elementary right to know full particulars of a
candidate who is to represent him in
Parliament where laws to bind his liberty and
property may be enacted.
5. The right to get information in democracy
is recognised all throughout and it is a natural
right flowing from the concept of democracy.
At this stage, we would refer to Article 19(1)
and (2) of the International Covenant on Civil
and Political Rights, which is as under:
"(1) Everyone shall have the right to[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 21
hold opinions without interference.
(2) Everyone shall have the right to
freedom of expression; this right shall
include freedom to seek, receive and
impart information and ideas of all
kinds, regardless of frontiers, either
orally, in writing or in print, in the
form of art, or through any other
media of his choice."
6. On cumulative reading of a plethora of
decisions of this Court as referred to, it is clear
that if the field meant for legislature and
executive is left unoccupied detrimental to
the public interest, this Court would have
ample jurisdiction under Article 32 read with
Articles
141 and 142 of the Constitution to issue
necessary directions to the executive to
subserve public interest.
7. Under our Constitution, Article 19(1)(a)
provides for freedom of speech and
expression. Voter's speech or expression in
case of election would include casting of
votes, that is to say, voter speaks out or
expresses by casting vote. For this purpose,
information about the candidate to be selected
is a must. Voter's (little man - citizen's) right
to know antecedents including criminal past of
his candidate contesting election for MP or
MLA is much more fundamental and basic
for survival of democracy. The little man may
think over before making his choice of
electing law-breakers as law-makers.‖
57. In Association for Democratic Reforms (supra) the
Hon‘ble Supreme Court, issued the following directions;
―47. In this view of the matter, it cannot be said
that the directions issued by the High Court are
unjustified or beyond its jurisdiction.
However, considering the submissions made
by the learned counsel for the parties at the
time of hearing of this matter, the said
directions are modified as stated below.
48. The Election Commission is directed to
call for information on affidavit by issuing
necessary order in exercise of its power under
Article 324 of the Constitution of India from
each candidate seeking election to Parliament
or a State Legislature as a necessary part of
his nomination paper, furnishing therein,
information on the following aspects in
relation to his/her candidature:
(1) Whether the candidate
is
convicted/acquitted/dischar
ged of any criminal offence
in the past - if any, whether
he is punished with
imprisonment or fine.22 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
(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 balance, etc.)
of a candidate and of his/her
spouse and that of
dependants.
(4) Liabilities, if any,
particularly whether there
are any overdues of any
public financial institution
or government dues.
(5) The educational
qualifications of the
candidate.
49. It is to be stated that the Election
Commission has from time to time issued
instructions/orders to meet with the situation
where the field is unoccupied by the
legislation. Hence, the norms and modalities
to carry out and give effect to the aforesaid
directions should be drawn up properly by the
Election Commission as early as possible and
in any case within two months."
58. After the decision of the Hon'ble Supreme Court in
Association for Democratic Reforms(supra), an Ordinance which
was promulgated by the President of India on 24.08.2002 by which
Sections 33A and 33B were inserted in the RP Act. Subsequently,
the said Ordinance was repealed and the Representation of People
(3rd Amendment) Act of 2002 was noticed inserting Sections 33A
and 33B in the RP Act. Section 33A requires the candidate to furnish
additional information as to-
"(i) whether he is accused of any offence
punishable with imprisonment for 2 (two) years
or more in a pending case in which a charge
has been framed by the Court of competent
jurisdiction.
(ii) whether he has been convicted of an
offence other than any offence referred to in
sub-section (1) or subsection (2), or covered in
subsection (3), of section 8 and sentenced to
imprisonment for one year or more."
59. Section 33B of the RP Act provided that
notwithstanding anything contained in any judgment, decree or order
of any Court or any direction, order or any other instruction issued by
the Election Commission, no candidate shall be liable to disclose or
furnish any such information, in respect of his election, which is not
required to be disclosed or furnished under the Act or the rules made
thereunder. The aforesaid Section 33A did not provide for furnishing[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 23
of the information as directed by the Hon'ble Supreme Court in
Association for Democratic Reforms (supra) and sought to cut away
the scope of the directions by incorporating Section 33B.
60. Section 33B inserted by the 3rd Amendment Act of
2002 was challenged before the Hon‘ble Supreme Court in People's
Union for Civil Liberties (PUCL) and Another v. Union of India
and Another, , (2003) 4 SCC 399. The Hon'ble Supreme Court, while
dealing with the issue, touched upon various aspects of the
directions issued in the earlier case of Association for Democratic
Reforms (supra) and reaffirmed the said decision which required
furnishing of information by the candidates as regards the antecedents
relating to criminal cases/offences, assets, liabilities and debts of the
candidates and their spouses and children and lastly the educational
qualification of the candidates. The aforesaid direction by the
Hon'ble Supreme Court for furnishing information was based on the
broader interpretation of Article 19 (1) (a) of the Constitution of India,
which guarantees freedom of speech and expression to the citizen of
this country. The aforesaid information were held to be an important
ingredients of Article 19 (1) (a) and accordingly, the Hon'ble
Supreme Court made the following observations:
"18. So, the foundation of a healthy democracy
is to have well-informed citizens-voters. The
reason to have right of information with
regard to the antecedents of the candidate is
that voter can judge and decide in whose
favour he should cast his vote. It is the voter's
discretion whether to vote in favour of an
illiterate or literate candidate. It is his choice
whether to elect a candidate against whom
criminal cases for serious or non-serious
charges were filed but is acquitted or
discharged. He is to consider whether his
candidate may or may not have sufficient
assets so that he may not be tempted to
indulge in unjustified means for accumulating
wealth. For assets or liability, the voter may
exercise his discretion in favour of a candidate
whose liability is minimum and/or there are
no overdues of public financial institution or
government dues. From this information, it
would be, to some extent, easy to verify
whether unaccounted money is utilized for
contesting election and whether a candidate is
contesting election for getting rich or after
being elected to what extent he became
richer. Exposure to public scrutiny is one of
the known means for getting clean and less
polluted persons to govern the country. A little
man - a citizen - a voter is the master of his
vote. He must have necessary information so
that he can intelligently decide in favour of a
candidate who satisfies his criterion of being
elected as an MP or MLA. On occasions, it is
stated that we are not having such intelligent
voters. This is no excuse. This would be
belittling a little citizen/voter. He himself
may be illiterate but still he would have the
guts to decide in whose favour he should cast
his vote. In any case, for having free and fair
election and not to convert democracy into a
mobocracy and mockery or a farce,
information to voters is a necessity."24 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
61. In the said decision, His Lordship Hon'ble
M.B.Shah,J., summarized the issues as under:
―78. What emerges from the above discussion
can be summarised thus:
(A).....
(B) Section 33-B which provides that
notwithstanding anything contained in the
judgment of any court or directions issued by
the Election Commission, no candidate shall
be liable to disclose or furnish any such
information in respect of his election which is
not required to be disclosed or furnished under
the Act or the rules made thereunder, is on the
face of it beyond the legislative competence,
as this Court has held that the voter has a
fundamental right under Article 19(1)(a) to
know the antecedents of a candidate for
various reasons recorded in the earlier
judgment as well as in this judgment.
(C) The judgment rendered by this Court in
Assn. for Democratic Reforms has attained
finality, therefore, there is no question of
interpreting constitutional provision which
calls for reference under Article 145(3).
(D) The contention that as there is no
specific fundamental right conferred on a
voter by any statutory provision to know the
antecedents of a candidate, the directions
given by this Court are against the statutory
provisions is, on the face of it, without any
substance. In an election petition challenging
the validity of an election of a particular
candidate, the statutory provisions would
govern respective rights of the parties.
However, voters' fundamental right to know
the antecedents of a candidate is independent
of statutory rights under the election law. A
voter is first citizen of this country and apart
from statutory rights, he is having
fundamental rights conferred by the
Constitution. Members of a democratic society
should be sufficiently informed so that they
may cast their votes intelligently in favour of
persons who are to govern them. Right to vote
would be meaningless unless the citizens are
well informed about the antecedents of a
candidate. There can be little doubt that
exposure to public gaze and scrutiny is one of
the surest means to cleanse our democratic
governing system and to have competent
legislatures.
(E) ‖
62. In the aforesaid decision, His Lordship Hon'ble
P.Venkatarama Reddi,J., though endorsed the view as regards
unconstitutionality of Section 33B, expressed disagreement in
certain areas and observed as under:
―123. Finally, the summary of my conclusions:
(1) Securing information on the basic details[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 25
concerning the candidates contesting for
elections to Parliament or the State
Legislature promotes freedom of expression
and therefore the right to information forms
an integral part of Article 19(1)(a). This right
to information is, however, qualitatively
different from the right to get information
about public affairs or the right to receive
information through the press and electronic
media, though, to a certain extent, there may
be overlapping.
(2) The right to vote at the elections to the
House of the People or Legislative Assembly
is a constitutional right but not merely a
statutory right; freedom of voting as distinct
from right to vote is a facet of the
fundamental right enshrined in Article
19(1)(a). The casting of vote in favour of one
or the other candidate marks the
accomplishment of freedom of expression of
the voter.
(3) The directives given by this Court in
Union of India v. Assn. for Democratic
Reforms , (2002) 5 SCC 294 were intended
to operate only till the law was made by the
legislature and in that sense "pro tempore" in
nature. Once legislation is made, the Court
has to make an independent assessment in
order to evaluate whether the items of
information statutorily ordained are
reasonably adequate to secure the right of
information available to the voter/citizen. In
embarking on this exercise, the points of
disclosure indicated by this Court, even if they
be tentative or ad hoc in nature, should be
given due weight and substantial departure
therefrom cannot be countenanced.
(4) The Court has to take a holistic view and
adopt a balanced approach in examining the
legislation providing for right to information
and laying down the parameters of that right.
(5) Section 33-B inserted by the
Representation of the People (Third
Amendment) Act, 2002 does not pass the test
of constitutionality, firstly, for the reason that
it imposes a blanket ban on dissemination of
information other than that spelt out in the
enactment irrespective of the need of the hour
and the future exigencies and expedients and
secondly, for the reason that the ban operates
despite the fact that the disclosure of
information now provided for is deficient
and inadequate.
(6) The right to information provided for by
Parliament under Section 33-A in regard to the
pending criminal cases and past involvement
in such cases is reasonably adequate to
safeguard the right to information vested in the
voter/citizen. However, there is no good
reason for excluding the pending cases in26 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
which cognizance has been taken by the Court
from the ambit of disclosure.
(7) The provision made in Section 75-A
regarding declaration of assets and liabilities
of the elected candidates to the Speaker or the
Chairman of the House has failed to effectuate
the right to information and the freedom of
expression of the voters/citizens. Having
accepted the need to insist on disclosure of
assets and liabilities of the elected candidate
together with those of the spouse or
dependent children, Parliament ought to have
made a provision for furnishing this
information at the time of ?ling the
nomination. Failure to do so has resulted in the
violation of guarantee under Article 19(1)(a).
(8) The failure to provide for disclosure of
educational qualification does not, in
practical terms, infringe the freedom of
expression.
(9) The Election Commission has to issue
revised instructions to ensure implementation
of Section 33-A subject to what is laid down
in this judgment regarding the cases in which
cognizance has been taken. The Election
Commission's orders related to disclosure of
assets and liabilities will still hold good and
continue to be operative. However, Direction
4 of para 14 insofar as verification of assets
and liabilities by means of summary enquiry
and rejection of nomination paper on the
ground of furnishing wrong information or
suppressing material information should not
be enforced."
63. From the above decision, what transpires is that
there is need to insist on disclosure of assets and liabilities of the
elected candidate together with those of the spouse or dependent
children and the Parliament ought to have made a provision for
furnishing this information at the time of filing the nomination.
Failure to do so has resulted in the violation of the guarantee under
Article 19 (1) (a) of the Constitution of India. Further, the inference
which can be drawn is that failure to furnish information as
regards the non-disclosure of correct assets and liabilities by a
candidate would be a serious lapse on the part of the candidate, as it
would violate the right of the voters.
64. Pursuant to the decision of the Hon'ble Supreme
Court in Association for Democratic Reforms (supra), Rule 4A was
inserted. Rule 4A is quoted hereunder for ready reference:
―4A. Form of affidavit to be filed at the time
of delivering nomination paper.- The
candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning
officer the nomination paper under sub-
section (1) of section 33 of the Act, also
deliver to him an affidavit sworn by the
candidate before a Magistrate of the first class
or a Notary in Form 26."
65. In terms of the aforesaid Rule 4A, a candidate has to
submit an affidavit with detailed particulars as provided in Form 26.[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 27
Paras 7 and 8 of Form 26 require giving information about the details
of movable and immovable assets of the candidate, spouse and
children. It is in the Form 26 submitted by the first respondent that
he had failed to disclose his wife's account details, failed to disclose
the details of his vehicle and also failed to disclose his non-
agricultural land, which are at the serious dispute between the parties
in this election petition.
66. This was followed by the decision in People’s
Union for Civil Liberties (PUCL) and another vs. Union of India
and others (2003) 4 SCC 399. The amended Section 33- B was
declared null and void and ultra vires the Constitution as it went
beyond legislative competence, as the Hon‘ble Supreme Court has
already held that the voter has a fundamental right under Article
19(1)(a) to know the antecedents of the candidate. The
Hon‘ble Supreme Court further emphasized the relevance of
disclosure of information and held thus:
―70. Hence, in our view, right of a voter to
know the bio-data of a candidate is the
foundation of democracy. The old dictum
— let the people have the truth and the
freedom to discuss it and all will go well
with the Government — should prevail.
78. What emerges from the above
discussion can be summarised thus:
A)……
………
……..
(D) ………... However, voters'
fundamental right to know the antecedents of
a candidate is independent of statutory rights
under the election law. A voter is first
citizen of this country and apart from
statutory rights, he is having fundamental
rights conferred by the Constitution.
Members of a democratic society should be
sufficiently informed so that they may cast
their votes intelligently in favour of persons
who are to govern them. Right to vote
would be meaningless unless the citizens
are well informed about the antecedents of a
candidate. There can be little doubt that
exposure to public gaze and scrutiny is one
of the surest means to cleanse our
democratic governing system and to have
competent legislatures.
(E) It is established that
fundamental rights themselves have no
fixed content, most of them are empty
vessels into which each generation must
pour its content in the light of its
experience. The attempt of the Court should
be to expand the reach and ambit of the
fundamental rights by process of judicial
interpretation. During the last more than
half a decade, it has been so done by this
Court consistently. There cannot be any
distinction between the fundamental rights
mentioned in Chapter III of the
Constitution and the declaration of such28 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
rights on the basis of the judgments rendered
by this Court.‖
67. The decisions of the Hon‘ble Supreme Court in the
cases of Association for Democratic Reforms and People’s Union
for Civil Liberties (PUCL), supra, are widely recognized as the strong
base of electoral reforms in India. Statutory interpretation therein
onwards has been strict, implementing the maxim that the right of the
voter to know the bio-data of the candidate is the foundation of
democracy.
68. This Court would like to refer to the subsequent
decision of the Hon'ble Supreme Court in the case of Resurgence
India v. Election Commission of India, (2014) 14 SCC 189, wherein
the Hon'ble Supreme Court re-examined the issue of the decisions
rendered in Association for Democratic Reforms (supra) and PUCL
(supra).
69. In Resurgence India (supra), the Hon'ble Supreme
Court re-visited the relevant laws and issued the following directions:
―29. What emerges from the above discussion
can be summarised in the form of the
following directions:
29.1. The voter has the elementary right to
know full particulars of a candidate who is to
represent him in Parliament/Assemblies and
such right to get information is universally
recognised. Thus, it is held that right to know
about the candidate is a natural right flowing
from the concept of democracy and is an
integral part of Article 19(1)(a) of the
Constitution.
29.2. The ultimate purpose of filing of
affidavit along with the nomination paper is to
effectuate the fundamental right of the citizens
under Article 19(1)(a) of the Constitution of
India. The citizens are supposed to have the
necessary information at the time of ?ling of
nomination paper and for that purpose, the
Returning Officer can very well compel a
candidate to furnish the relevant information.
29.3. Filing of affidavit with blank
particulars will render the affidavit nugatory.
29.4. 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. We do comprehend
that the power of the Returning Officer to
reject the nomination paper must be exercised
very sparingly but the bar should not be laid so
high that the justice itself is prejudiced.
29.5. We clarify to the extent that para 73
of People's Union for Civil Liberties case1 will
not come in the way of the Returning Officer
to reject the nomination paper when the[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 29
affidavit is ?led with blank particulars.
29.6. The candidate must take the
minimum effort to explicitly remark as "NIL"
or "Not Applicable" or "Not known" in the
columns and not to leave the particulars blank.
29.7. Filing of affidavit with blanks will
be directly hit by Section 125-A(i) of the RP
Act. However, as the nomination paper itself
is rejected by the Returning Officer, we find
no reason why the candidate must be again
penalised for the same act by prosecuting
him/her."
70. From the above directions of the Hon'ble Supreme
Court, the right to know full particulars of a candidate, which
includes information about the assets and liabilities of the candidate,
his spouse and dependents, has been recognized as a vital part of
Article 19 (1) (a) of the Constitution of India. In Resurgence India
(supra), the Hon'ble Supreme Court also held that filing of an
affidavit with blanks qua particulars sought would make it liable to be
rejected by the Returning Officer.
71. In Kisan Shankar Kathore v. Arun Dattatray
Sawant, (2014) 14 SCC 162, the Hon‘ble Supreme Court held as
follows:
―40. We have already reproduced above the
relevant portions of judgments in Assn. for
Democratic Reforms [Union of India v.
Assn. for Democratic Reforms, (2002) 5
SCC 294] and People's Union for Civil
Liberties [People's Union for Civil Liberties
v. Union of India, (2003) 4 SCC 399] and
the guidelines issued by the Election
Commission pursuant thereto. A conjoint
and combined reading thereof clearly
establishes that the main reason for issuing
directions by this Court and guidelines by
the Election Commission pursuant thereto
is that the citizens have fundamental right
under Article 19(1)(a) of the Constitution of
India to know about the candidates
contesting the elections and this is the
primary reason that casts a solemn
obligation on these candidates to furnish
information regarding the criminal
antecedents, educational qualifications and
assets held by the candidate, his spouse and
dependent children. It is on that basis that not
only the Election Commission has issued
guidelines, but also prepared formats in
which the affidavits are to be filed. As a
fortiori, it follows that if the required
information as per the said format in respect
of the assets of the candidate, his wife and
dependent children, is not given, it would
amount to suppression/non-disclosure.‖
72. In Krishnamoorthy Vs. Sivakumar, (2015) 3 SCC
467, the Hon‘ble Supreme Court held that voter has a fundamental
right to know about the candidates contesting the elections as that is
essential and a necessary concomitant for a free and fair election.
Therefore, disclosure of criminal antecedents is a categorical
imperative and non-disclosure would amount to undue influence.30 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
Concealment would come within the compartment of direct or
indirect interference or attempt to interfere with the free exercise of
the right to vote. The requirement of disclosure, especially of the
criminal antecedents, enables a voter to have an informed and
instructed choice.
73. In Public Interest Foundation and others v.
Union of India and another, (2019) 3 SCC 224, the issue that fell for
consideration of the Hon‘ble Supreme Court was whether
disqualification for membership can be laid down by the Court
beyond Articles 102 (a) to (d) and the law made by the Parliament
under Article 102(c). The Hon‘ble Supreme Court observed,
―115. …….. The information given by a
candidate must express everything that is
warranted by the Election Commission as per
law. Disclosure of antecedents makes the
election a fair one and the exercise of the right
of voting by the electorate also gets sanctified.
It has to be remembered that such a right is
paramount for a democracy. A voter is entitled
to have an informed choice. If his right to get
proper information is scuttled, in the ultimate
eventuate, it may lead to destruction of
democracy because he will not be an informed
voter having been kept in the dark about
the candidates who are accused of heinous
offences. ‖
74. By the aforesaid decisions, the Hon‘ble Supreme
Court emphasized that the right to vote is sacrosanct and inviolable
and an elector can effectively exercise this right only when he is
presented with mirror images of the candidates contesting the
elections to the Indian Parliament and/or the State Legislature
containing array of information on all aspects of the candidates. An
informed decision would make the election process more inclusive
and effective, leading to realizing vibrant democratic institutions.
Hon‘ble Supreme Court firmly put in place the system of full
disclosure on all aspects of a contestant ushering in a new era.
75. In the light of the law laid down by the Hon‘ble
Supreme Court, now it is expedient to consider the statutory frame
work on the disclosure of information by the candidates and the
effect of non-disclosure. The following provisions are relevant in the
case on hand and, therefore, they are quoted hereunder:
―2(1)(c) ―corrupt practice‖
means any of the practices
specified in Section 123.
33-A. Right to information.—(1) A
candidate shall, apart from any information
which he is required to furnish, under this
Act or the rules made thereunder, in his
Nomination Paper delivered under sub-
section (1) of Section 33, also furnish the
information as to 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[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 31
referred to in sub-section (1) or sub-
section (2), or covered in subsection
(3) of Section 8 and sentenced to
imprisonment for one year or more.
(2) The candidate or his proposer, as the
case may be, shall, at the time of delivering
to the Returning Officer the Nomination
Paper under sub-section (1) of Section 33,
also deliver to him an affidavit sworn by the
candidate in a prescribed form verifying the
information specified in sub-section (1).
(3) The Returning Officer shall, as soon as
may be after the furnishing of information
to him under sub-section (1), display the
aforesaid information by affixing a copy of
the affidavit, delivered under sub-section (2),
at a conspicuous place at his office for the
information of the electors relating to a
constituency for which the Nomination
Paper is delivered.
S.100. Grounds for declaring election to
be void.- (1) Subject to the provisions of
Sub-section (2) if the High Court is of
opinion-
(d) that the result of the election, in so far
as it concerns a returned candidate, has been
materially affected—
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in
the interests of the returned candidate by an
agent other than his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this
Act.
S.123. Corrupt practices.—The following
shall be deemed to be corrupt practices for
the purposes of this Act:—
(2) Undue influence, that is to say, any
direct or indirect interference or attempt to
interfere on the part of the candidate or his
agent, or of any other person 279[with the
consent of the candidate or his election
agent], with the free exercise of any electoral
right:
Provided that—
(a) without prejudice to the generality of
the provisions of this clause any such
person as is referred to therein who—
(i) threatens any candidate or any elector,
or any person in whom a candidate or an
elector is interested, with injury of any kind32 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
including social ostracism and
excommunication or expulsion from any
caste or community; or
(ii) induces or attempts to induce a
candidate or an elector to believe that he, or
any person in whom he is interested, will
become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning of
this clause;
(b) a declaration of public policy, or a
promise of public action, or the mere
exercise of a legal right without intent to
interfere with an electoral right, shall not be
deemed to be interference within the
meaning of this clause.
S.125-A. Penalty for filing false affidavit,
etc. – A candidate who himself or through
his prosper, with intent to be elected in an
election,--
(i) fails to furnish information relating to
sub- section (1) of Section 33-A; or
(ii) gives false information which he knows
or has reason to believe to be false; or
(iii) conceals any information,
In his nomination paper delivered under
sub- section (1)of Section 33 or in his
affidavit which is required to be delivered
under sub- section (2) of Section 33-A, as
the case may be, shall, notwithstanding
anything contained in any other law for the
time being in force, be punishable with
imprisonment for a term which may extend
to six months, or with fine, or with both.‖
76. Section 2(1)(c) defines ‗corrupt practice‘ meaning
as specified in Section 123 of the RP Act.
77. Section 33-A of the RP Act recognizes inalienable
right of a citizen to know everything of candidates contesting the
elections offering to represent the citizens in the Central or State
legislature. It therefore obligates the candidates to disclose all
information about themselves and their family members, including
the criminal record of the candidates.
78. Section 123 of the RP Act incorporates what
constitutes corrupt practices. What is shown therein is illustrative and
the Act intends to give wide scope to the term ‗corrupt practice‘.
Non-disclosure of information on pending crimes by a contestant
amounts to ‗Undue influence‘ scuttling the right of an elector in
assessing the suitability of the candidate and is a ‗corrupt practice‘. It
is a ground to disqualify an elected candidate under Section 100 of
the Act, 1951.
79. As per Section 100 of the RP Act, whenever it is
established that the elected candidate resorted to ‗corrupt practice‘ to
win the election, his election can be declared as void.
80. Along with the nomination paper, a candidate is[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 33
required to file an affidavit in Form 26. The affidavit should be
sworn before a Magistrate of the First Class or before a Notary
Public or a Commissioner of Oaths appointed by the High Court of the
State concerned. The duly sworn affidavits should be on stamp paper
of such denomination as prescribed under the State law of the State
concerned. While supplying forms of nomination papers, the
Returning Officer will attach to nomination form a copy of Form 26
appended to the Conduct of Election Rules, 1961. No column of the
affidavit should be left blank or filled by just tick/dash marking. If the
information asked for in a column is ‗Nil‘ or not applicable or not
known to the candidate then he should write 'Nil' or 'Not applicable'
in that column.
81. The Hon‘ble Supreme Court, time and again, held
that in the affidavits filed by candidate along with their nomination
paper, the candidates are required to fill up all columns therein and
no column can be left blank. Therefore, at the time of filing of
affidavit, it is the bounden duty of the Returning Officer to verify
whether all the columns of the affidavit filed with the nomination
paper are filled up. If not, the Returning Officer shall give a reminder
in prescribed checklist to the candidate to furnish information against
blank columns. The candidate must submit a revised affidavit with
columns duly filled up before the commencement of scrutiny of
nominations, failing which the nomination paper will be liable to be
rejected.
82. The Hon‘ble Supreme Court further held that if
there is no information to be furnished against any item, appropriate
remarks such as ‗NIL‘ or ‗Not Applicable‘ or ‗Not Known‘ as may
be applicable shall be indicated in such column. They should not
leave any column blank. If a candidate fails to fill the blanks even
after reminder, the nomination paper will be liable to be rejected by
the Returning Officer at the time of scrutiny of nomination papers.
Copies of the affidavits will be displayed in the premises of a public
place within the constituency freely accessible to the general public.
Displaying copies on the Returning Officer‘s notice board will be done
in all cases, even if the office is outside the boundary of the
constituency. Uploading of affidavits filed by candidates in the
website. Such uploading should also be done within 24 hours of
filing of the same. The affidavits filed by candidates were to be
disseminated by displaying copies thereof on the notice board of the
Returning Officer and by making copies available freely to those
seeking the same.
83. The Hon‘ble Supreme Court further held that the
information furnished by the contesting candidates in relation to the
Government dues to the five departments mentioned in item (8)(ii) &
(iii) of the affidavit will be published by the Returning Officers
concerned in at least two newspapers having local circulation, one of
which should be a vernacular newspaper. This should be published
by the Returning Officer within two days after preparing the list of
contesting candidates. If there is more than one constituency in a
District, the District Election Officer will publish the above
information in a consolidated form in respect of all constituencies
(constituency wise) in that District. When the information on
Government dues is published in the newspaper, there will be a note
added therein mentioning the places where the other details viz.,
criminal background, assets, liabilities and education qualification of
all the contesting candidates, can be found. The note will also mention
that the affidavit can be viewed on the website of the Chief Election
Officer and path to the website will also be mentioned.
84. In the light of the aforesaid principles, this Court
proceeds to deal with the matter. According to the learned counsel for
the petitioner, the nomination papers filed by the first respondent dated34 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
21.3.2019 was improperly accepted by the first respondent in
violation of the provisions of laws and instructions of the Election
Commission of India. He would submit that the various
pronouncement of the judgments of the Hon‘ble Supreme Court it has
been held that it is mandatory to accompany Form 26 and none of the
columns left blank in Form
26 which is in the form of affidavit. If a nomination paper
accompanied with incomplete and/or incorrect information is
accepted by the Returning Officer, then it is considered as
improper acceptance which would materially affect the election of the
other candidate.
85. The learned counsel for the petitioner urged that
non-disclosure of material information required and withholding of
material information or concealment of material information in the
affidavit filed along with the nomination paper in the election of the
Parliament by the first respondent, the election of the first respondent
has to be set aside. He added that if the corrupt practice is proven, the
Court is bound to declare the election of the returned candidate to be
void.
86. To fortify his submission, learned counsel for the
petitioner relied upon the following decisions:
(i) Kisan Shankar Kathore v. Arun
Dattatray Sawant and others, (2014)
14 SCC 162.
(ii) Krishnamoorthy v. Sivakumar and
others, (2015) 3 SCC 467.
(iii) M.Narayan Rao v. G.Venkata Reddy
and others, (1977) 1 SCC 771.
(iv) Mayanglambam Rameshwar Singh
v. Yengkhom Surchandra Singh and
others, 2020 SCC OnLine Mani 312.
87. In Kisan Shankar Kathore, (supra), the
Hon‘ble Supreme Court held thus:
―43. 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 may not suffice. The
present case is itself 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 be only at a later stage
and the appropriate stage would be in an
election petition as in the instant case, when[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 35
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.‖
88. In Krishnamoorthy supra, the Hon‘ble Supreme
Court held as under: ―60. The purpose of referring to the same is to
remind one that the right to contest in an election is a plain and
simple statutory right and the election of an elected candidate can
only be declared null and void regard being had to the grounds
provided in the statutory enactment. And the ground of ―undue
influence‖ is a part of corrupt practice.
61. Section 100 of the 1951 Act provides
for grounds for declaring election to be void.
Section 100(1) which is relevant for the
present purpose reads as under:
―100.Grounds for declaring election to
be void.—(1) Subject to the provisions of sub-
section (2) if the High Court is of opinion—
(a) that on the date of his election a
returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat under
the Constitution or this Act or the
Government of Union Territories Act, 1963
(20 of 1963); or
(b) that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent; or
(c) that any nomination has been
improperly rejected; or that the result of the
election, insofar as it concerns a returned
candidate, has been materially affected—
(i) by the improper acceptance or any
nomination, or36 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
(ii) by any corrupt practice committed in
the interests of the returned candidate by an
agent other than his election agent, or
(iii) by the improper reception, refusal
or rejection of any vote or the reception of
any vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this Act,
the High Court shall declare the election of the
returned candidate to be void.‖
89. Mayanglambam Rameshwar Singh, supra, this
Court held as hereunder:
―88. In fact, in his election petition as well as
oral evidence, the petitioner has clearly stated
that the result of the election in so far asit
concerns the first respondent has been
materially affected on the grounds indicated in
paragraph (20) of the election petition. The
non-disclosure of the assets of his wife in the
affidavit in Form 26 has been admitted by the
first respondent. The aforesaid one example is
enough to conclude that the first respondent
has failed to disclose his wife's assets in his
nomination paper. In view of the above
admission made by the first respondent, this
Court is of the view that there is no need to
elaborate upon the decisions relied on by the
first respondent and the same are not helpful
to the case of the first respondent Though the
first respondent contended that the oral
evidence of P.W.1 and P.W.2 are not reliable,
nothing has been produced to prove the same
and also there is no reasoning coming forth
from the side of the first respondent to
strengthen their version.‖
90. The learned senior counsel for the first respondent
submitted that since there was defect in the nomination paper dated
21.03.2019, a revised nomination paper and the revised affidavit in
Form 26 have been filed on 25.03.2019, which was accepted by the
Returning Officer after scrutiny. The aforesaid contention of the first
respondent has not been materially proved. This Court already came
to the conclusion that only affidavit in From 26 dated 21.3.2019 was
uploaded officially and there is no record to show that affidavit in
From 26 dated 25.3.2019 of the first respondent was accepted by the
Returning Officer and was uploaded in the website.
91. When this Court examined Para 4 of the affidavit
Form 26 dated 21.03.2019, the first respondent kept Column 5 blank.
The first respondent in his evidence also confirmed that he has not
filled and left blank the details of his spouse, her source of income,
details of returns for the last five years.
92. It is pertinent to point out that the provision of RP
Act provides for filing of maximum four nomination papers, but as
per Section 33A of the RP Act read with Rule 4A, the candidate is
required to file a duly sworn affidavit under Form 26 along with the
nomination papers containing true and correct facts along with
complete information, which cannot be different. The four
nomination papers must be accompanied with the same affidavit
under Form 26.In the case on hand, as stated supra, the first[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 37
respondent left column 5 of para 4 of the affidavit in Form 26 dated
21.3.2019 blank, which was also admitted by the first respondent in
his evidence. Acceptance of such unfilled and/or blank affidavit by
the Returning Officer is against the provisions of law and also
amounts to improper acceptance.
93. Coming to election expenditure, in order to
facilitate monitoring of election expenditure, the Election
Commission of India issued notification dated 15.10.2013 whereby
the Election of India has made it mandatory for each candidate to
open a separate bank account exclusively for the purpose of election
expenditure. The election account should be opened any time at least
one day before the date on which the candidate intends to file his
nomination papers and the account number must be communicated
by the candidate in writing to the Returning Officer at the time of
filing of his nomination.
94. The petitioner pleaded that the first respondent has
failed to maintain true and correct account of all expenditures in
connection with the election and the same is in violation of Section 77
of the RP Act, thereby he has committed corrupt practice as defined
under Section 123(6) of the RP Act. Therefore, the election of the first
respondent is liable to be declared void under Section 100(1)(b) read
with Section 100(1)(d)(iv) of the RP Act.
95. Sections 77 and 123 of the RP Act provide thus:
―77. Account of election expenses and
maximum thereof.—(1) Every candidate at
an election shall, either by himself or by his
election agent, keep a separate and correct
account of all expenditure in connection with
the election incurred or authorized by him or
by his election agent between the date on
which he has been nominated and the date of
declaration of the result thereof, both dates
inclusive.
Explanation 1.—For the removal of doubts, it
is hereby declared that—
(a) the expenditure incurred by
leaders of a political party on account of
travel by air or by any other means of
transport for propagating programme
of the political party shall not be
deemed to be the expenditure in
connection with the election incurred
or authorised by a candidate of that
political party or his election agent for
the purposes of this sub-section.
(b) any expenditure incurred in
respect of any arrangements made,
facilities provided or any other act or
thing done by any person in the
service of the Government and
belonging to any of the classes
mentioned in clause (7) of section 123
in the discharge or purported discharge
of his official duty as mentioned in the
proviso to that clause shall not be
deemed to be expenditure in
connection with the election incurred
or authorised by a candidate or by his
election agent for the purposes of this38 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
sub-section.
Explanation 2.—For the purposes of
clause (a) of Explanation 1, the
expression ―leaders of a political
party‖, in respect of any election,
means,—
(i) where such political party is
a recognised political party, such
persons not exceeding forty in
number, and
(ii) where such political party is
other than a recognised political
party, such persons not
exceeding twenty in number,
whose names have been
communicated to the Election
Commission and the Chief
Electoral Officers of the States
by the political party to be
leaders for the purposes of such
election, within a period of seven
days from the date of the
notification for such election
published in the Gazette of India
or Official Gazette of the State,
as the case may be, under this
Act: Provided that a political
party may, in the case where any
of the persons referred to in
clause (i) or, as the case may be,
in clause (ii) dies or ceases to be
a member of such political party,
by further communication to the
Election Commission and the
Chief Electoral Officers of the
States, substitute new name,
during the period ending
immediately before forty-eight
hours ending with the hour fixed
for the conclusion of the last poll
for such election, for the name of
such person died or ceased to be a
member, for the purposes of
designating the new leader in his
place.
(2) The account shall contain such
particulars, as may be prescribed.
(3) The total of the said expenditure shall
not exceed such amount as may be prescribed.
―123. Corrupt practices.—The following
shall be deemed to be corrupt practices for
the purposes of this Act:—
(1) …..
(2) …..
(3) …..
(4) ……
(5) …...[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 39
(6) The incurring or authorizing of
expenditure in contravention of section
77.
96. The learned counsel for the petitioner submitted
that when the total amount withdrawn for running expenses and other
expenses for the election is calculated from Ext.Z/9, the total amount
comes around Rs.74,13,100/-, which is beyond the limit of Rs.70 lakh
set for the Lok Sabha election and, therefore, is in violation of Section
77(3) of the RP Act, coupled with the fact that there is a corrupt
practice under Section 123(6) of the RP Act and on the said ground
also, the election of the first respondent is liable to be declared as
null and void. He submitted that this Court cannot ignore the said
illegality and the fraudulent act of the first respondent in not
providing true and correct statement of expenditures/accounts.
97. At this juncture, by placing reliance upon the
decision of the Hon‘ble Supreme Court in the case of
L.R.Shivaramagowda v. T.M.Chandrashekar, (1999) 1 SCC 666,
the learned senior counsel for the first respondent submitted that the
excess expenditure and failure to maintain true and correct accounts
alone does not amount to corrupt practice. The learned counsel for
the first respondent has also drawn the attention to the deposition of
P.W.4 and D.W.7 and submitted that there were no irregularities in
the maintenance of the statement of election expenditure and the same
has been duly accepted after satisfaction by the Returning Officer and
also within the applicable Act and the Rules. It is also the submission
of the learned senior counsel that the Expenditure Observer has not
properly discharged his duties that does not mean that the illegality
committed by the first respondent can be allowed to be sustained is
unacceptable, as it has neither been raised during the trial nor pleaded
in the election petition.
98. The learned senior counsel further submitted that
the irregularity in the maintenance of the election expenditures does
not have any fatal effect when the election expenditures were
verified and accepted by the Expenditures Observer. He submits that
if the election expenditure is accepted in violation of law, the
petitioner ought to have approached the Election Commission of
India under Section 10A of the RP Act. Admittedly, the petitioner
has failed to do so. Therefore, he cannot now take such plea.
99. In L.R.Shivaramagowda, supra, the
Hon‘ble Supreme Court held as under:
―10. That apart, it is rightly pointed out by the
appellant's counsel that in order to declare an
election to be void under Section
100(1)(d)(iv), it is absolutely necessary for the
election petitioner to plead that the result of the
election insofar as it concerned the returned
candidate had been materially affected by the
alleged non-compliance with the provisions
of the Act or of the Rules. We have already
extracted para 39 of the election petition
which is the only relevant paragraph. One
will search in vain for an averment in that
paragraph that the appellant had spent for the
election an amount exceeding the prescribed
limit or that the result of the election was
materially affected by the failure of the
appellant to give true and correct accounts of
expenditure. In the absence of either
averment, it was not open to the appellant to
adduce evidence to that effect. It cannot be40 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
denied that the two matters referred to above
are material facts which ought to find a place
in an election petition if the election is sought
to be set aside on the basis of such facts.
11. This Court has repeatedly stressed the
importance of pleadings in an election
petition and pointed out the difference
between ―material facts‖ and ―material
particulars‖. While the failure to plead
material facts is fatal to the election petition
and no amendment of the pleading could
be allowed to introduce such material facts
after the time-limit prescribed for filing the
election petition, the absence of material
particulars can be cured at a later stage by an
appropriate amendment. In Balwan Singh v.
Lakshmi Narain [AIR 1960 SC 770 : (1960) 3
SCR 91] the Constitution Bench held that an
election petition was not liable to be
dismissed in limine merely because full
particulars of corrupt practice alleged were
not set out. On the facts of the case, the Court
found that the alleged corrupt practice of
hiring a vehicle for the conveyance of the
voters to the polling station was sufficiently
set out in the pleading. The Court pointed out
that the corrupt practice being hiring or
procuring of the vehicle for the conveyance
of the electors, if full particulars of conveying
by a vehicle of electors to or from any polling
stations were given, Section 83 was duly
complied with, even if the particulars of the
contract of hiring, as distinguished from the
fact of hiring were not given.
12. In Samant N. Balkrishna v. George
Fernandez [(1969) 3 SCC 238] the Court said
that if the material facts of the corrupt
practice are stated, more or better particulars
of the charge may be given later, but where
the material facts themselves are missing, it is
impossible to think that the charge has been
made and later amplified and that would
tantamount to making of a fresh petition.
12A. In Virendra Kumar Saklecha v.
Jagjiwan [(1972) 1 SCC 826] this Court
stressed the importance of disclosure of
sources of information in the affidavit filed
along with the election petition. The relevant
passage reads thus: (SCC pp. 830 & 831,
paras 10, 13-15)
―10. The respondent filed an affidavit
along with the election petition. The affidavit
did not disclose the source of information in
respect of the speeches alleged to have been
made by the appellant. Section 83 of the Act
requires an affidavit in the prescribed form in
support of allegations of corrupt practice.
Rule 94-A of the Conduct of Elections Rules,
1961, requires an affidavit to be in Form No.
25. Form No. 25 requires the deponent to state
which statements are true to knowledge and[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 41
which statements are true to information.
Under Section 87 of the Act every election
petition shall be tried by the High Court as
nearly as may be in accordance with the
procedure applicable under the Code of Civil
Procedure to the trial of suits. Under Section
102 of the Code the High Court may make
rules regulating their own procedure and the
procedure of the civil courts subject to their
supervision and may by such rules vary, alter
or add to any of the rules in the First Schedule
to the Code.
***
13. The importance of setting out the
sources of information in affidavits came up for
consideration before this Court from time to
time. One of the earliest decisions is State of
Bombay v. Purushottam Jog Naik [AIR 1952
SC 317] where this Court endorsed the
decision of the Calcutta High Court
in Padmabati Dasi v. Rasik Lal Dhar [ILR
(1909) 37 Cal 259] and held that the sources
of information should be clearly disclosed.
Again, in Barium Chemicals Ltd. v. Company
Law Board [AIR 1967 SC 295] this Court
deprecated ‗slipshod verifications‘ in an
affidavit and reiterated the ruling of this
Court in Bombay case [AIR 1952 SC 317]
that verification should invariably be
modelled on the lines of Order 19 Rule 3 of
the Code ‗whether the Code applies in terms
or not‘. Again, in A.K.K. Nambiar v.
Union of India [(1969) 3 SCC 864] this
Court said that the importance of verification
is to test the genuineness and authenticity of
allegations and also to make the deponent
responsible for allegations.
14. Counsel on behalf of the appellant
contended that non-disclosure of the sources
of information in the affidavit was a fatal
defect and the petition should not have been
entertained. It is not necessary to express any
opinion on that contention in view of the fact
that the matter was heard for several months
in the High Court and thereafter the appeal
was heard by this Court. The grounds or
sources of information are to be set out in an
affidavit in an election petition. Counsel on
behalf of the respondent submitted that the
decisions of this Court were not on election
petitions. The rulings of this Court are
consistent. The grounds or sources of
information are to be set out in the affidavit
whether the Code applies or not. Section 83 of
the Act states that an election petition shall be
verified in the manner laid down in the Code.
The verification is as to information received.
The affidavit is to be modelled on the
provisions contained in Order 19 of the Code.
Therefore, the grounds or sources of
information are required to be stated.42 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
15. The non-disclosure of grounds or
sources of information in an election petition
which is to be filed within forty-five days
from the date of election of the returned
candidate, will have to be scrutinised from
two points of view. The non-disclosure of the
grounds will indicate that the election
petitioner did not come forward with the
sources of information at the first
opportunity. The real importance of setting
out the sources of information at the time of
the presentation of the petition is to give the
other side notice of the contemporaneous
evidence on which the election petition is
based. That will give an opportunity to the
other side to test the genuineness and veracity
of the sources of information. The other point
of view is that the election petitioner will not
be able to make any departure from the sources
or grounds, if there is any embellishment of the
case it will be discovered.‖
13. In Udhav Singh v. Madhav Rao
Scindia [(1977) 1 SCC 511] a Division Bench
of this Court explained the distinction
between material facts and material
particulars as follows: (SCC p. 523, paras 42-
43)
―42. All the primary facts which must be
proved at the trial by a party to establish the
existence of a cause of action or his defence,
are ‗material facts‘. In the context of a charge
of corrupt practice ‗material facts‘ would
mean all the basic facts constituting the
ingredients of the particular corrupt practice
alleged, which the petitioner is bound to
substantiate before he can succeed on that
charge. Whether in an election petition, a
particular fact is material or not, and as such
required to be pleaded is a question which
depends on the nature of the charge levelled,
the ground relied upon and the special
circumstances of the case. In short, all those
facts which are essential to clothe the
petitioner with a complete cause of action are
‗material facts‘ which must be pleaded, and
failure to plead even a single material fact
amounts to disobedience of the mandate of
Section 83(1)(a).
43. ‗Particulars‘ on the other hand are
‗the details of the case set up by the party‘.
‗Material particulars‘ within the
contemplation of clause (b) of Section 83(1)
would therefore mean all the details which
are necessary to amplify, refine and embellish
the material facts already pleaded in the
petition in compliance with the requirements
of clause (a). ‗Particulars‘ serve the purpose
of finishing touches to the basic contours of a
picture already drawn, to make it full, more
detailed and more informative.‖
The Bench held that if a petition suffers from[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 43
lack of material facts, it is liable to be
summarily rejected for want of cause of
action and if the deficiency is only of material
particulars, the Court has a discretion to allow
the petitioner to supply the required particulars
even after the expiry of limitation.‖
14. In F.A. Sapa v. Singora [(1991) 3
SCC 375] the Court considered the relevant
sections and the Rules at length and reiterated
the difference between material facts and
material particulars. The Court said: (SCC pp.
395-96, para 18)
―Section 83(1)(a) stipulates that every
election petition shall contain a concise
statement of the ‗material facts‘ on which the
petitioner relies. That means the entire bundle
of facts which would constitute a
complete cause of action must be concisely
stated in an election petition. Section 83(1)(b)
next requires an election petitioner to set forth
full ‗particulars‘ of any corrupt practice
alleged against a returned candidate. These
‗particulars‘ are obviously different from the
‗material facts‘ on which the petition is
founded and are intended to afford to the
returned candidate an adequate opportunity to
effectively meet with such an allegation. The
underlying idea in requiring the election
petitioner to set out in a concise manner all the
‗material facts‘ as well as the ‗full
particulars‘, where commission of corrupt
practice is complained of, is to delineate the
scope, ambit and limits of the inquiry at the
trial of the election petition.‖
With regard to the affidavit to be filed along
with the election petition in the prescribed
Form No. 25, the Court observed that the
defect in such affidavit could be cured unless
it formed the integral part of the petition in
which case, the defect concerning material
facts will have to be dealt with subject to
limitation under Section 81 of the Act.
15. In Gajanan Krishnaji Bapat v.
Dattaji Raghobaji Meghe [(1995) 5 SCC 347]
a Division Bench of which one of us (Anand,
J. as he then was) was a member dealt with
this aspect of the matter in extenso and held
that allegations of corrupt practice must be
properly alleged and both material facts and
particulars should be provided in the
petition itself so as to disclose the complete
cause of action. The relevant passage in the
judgment reads thus: (SCC pp. 361-62, paras
16-18)
―16. The election law insists that to
unseat a returned candidate, the corrupt
practice must be specifically alleged and
strictly proved to have been committed by the
returned candidate himself or by his election
agent or by any other person with the consent44 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
of the returned candidate or by his election
agent. Suspicion, however strong, cannot take
the place of proof, whether the allegations are
sought to be established by direct evidence or
by circumstantial evidence. Since pleadings
play an important role in an election petition,
the legislature has provided that the
allegations of corrupt practice must be
properly alleged and both the material facts
and particulars provided in the petition itself
so as to disclose a complete cause of action.
17. Section 83 of the Act provides that
the election petition must contain a concise
statement of the material facts on which the
petitioner relies and further that he must set
forth full particulars of the corrupt practice
that he alleges including as full a statement as
possible of the name of the parties alleged to
have committed such corrupt practices and
the date and place of the commission of each
of such corrupt practice. This section has been
held to be mandatory and requires first a
concise statement of material facts and then
the full particulars of the alleged corrupt
practice, so as to present a full picture of the
cause of action.
18. A petition levelling a charge of
corrupt practice is required, by law, to be
supported by an affidavit and the election
petitioner is also obliged to disclose his
source of information in respect of the
commission of the corrupt practice. This
becomes necessary to bind the election
petitioner to the charge levelled by him and to
prevent any fishing or roving enquiry and to
prevent the returned candidate from being
taken by a surprise.‖
As regards amendment of pleadings in an
election petition, the Bench held that there is a
complete prohibition against any amendment
being allowed which may have the effect of
introducing either material facts not already
pleaded or of introducing particulars of a
corrupt practice not previously alleged in the
petition. The Court pointed out that in that
case, the High Court ought not to have allowed
evidence to be led by the election petitioner
which was beyond the pleadings of the parties
for no amount of evidence can cure a defect in
the pleadings but it was all the more improper
for the trial court to have allowed the pleadings
to be amended so as to be brought in
conformity with the evidence already led in
the case.
16. If the above well-settled principles are
applied in this case, there is no doubt whatever
that the election petition suffers from a very
serious defect of failure to set out material
facts of the alleged corrupt practice. The
defect invalidates the election petition in that
regard and the petitioner ought not to have[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 45
been permitted to adduce any evidence with
reference to the same.
16A. We have already extracted paras (f) and
(g) of the affidavit filed along with the
election petition. It does not disclose the
source of information. Nor does it set out
which part of the election petition was
personally known to the petitioner and which
part came to be known by him on
information. Significantly, paras (a) to (e) of
the affidavit state that the averments therein
are true to his information. Para (f) is silent
on this aspect of the matter. Para (g) refers to
all the 42 paragraphs in the petition. The
affidavit is not in conformity with the
prescribed Form No. 25. Thus there is a
failure to comply with Rule 94-A of the
Conduct of Elections Rules. It is a very
serious defect which has been overlooked by
the High Court.
17. Learned counsel for the first respondent
made an attempt to show that the pleading
contains the relevant material facts. According
to him, para 39 of the election petition sets out
the expenses incurred by the appellant per
vehicle per day and the total number of
vehicles used by him. It was also contended
that the price of the newspaper Nagamangala
Mitra per copy was mentioned and the total
number of copies purchased for distribution
to the voters was also mentioned. It was
argued that those were the material facts and
by themselves they proved that the appellant
had incurred an expenditure exceeding the
prescribed limit. We are unable to accept this
contention. After setting out those figures, the
averment found in the election petition is only
to the effect that the said cost incurred by the
appellant had not been furnished in his
statement of account. The fact that in the last
part of the said sentence, it was alleged that
there was contravention of Section 123(6) of
the Act, would not come to the aid of the first
respondent to contend that the relevant
material fact of excessive expenditure over
and above the prescribed limit had
been pleaded. We must also refer to the fact
that for the purpose of Section 100(1)(d)(iv), it
is necessary to aver specifically that the result
of the election insofar as it concerns a returned
candidate has been materially affected due to
the said corrupt practice. Such averment is
absent in the petition.
18. We shall now proceed to the second
limb of the argument of the appellant's
counsel. The High Court has held that the
appellant had not maintained a true and correct
account of expenditure incurred or authorised
and the same amounted to corrupt practice.
―Corrupt practices‖ have been set out in
Section 123 of the Act. According to the first46 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
respondent, the appellant is guilty of a corrupt
practice described in sub-section (6) of
Section 123. Under that sub-section, the
incurring or authorising of expenditure in
contravention of Section 77 of the Act is a
corrupt practice. Section 77 provides that
every candidate at an election shall keep a
separate and correct account of all expenditure
in connection with the election incurred or
authorised by him or by his election agent
and that the accounts shall contain such
particulars as may be prescribed. Rule 86 of
the Conduct of Elections Rules, 1961 sets out
the particulars to be contained in the account
of election expenses. Sub-sections (1) and (2)
of Section 77 deal only with the maintenance
of account. Sub-section (3) of Section 77
provides that the total of the election expenses
referred to in sub-section (1) shall not exceed
such amount as may be prescribed. Rule 90 of
the Conduct of Elections Rules prescribes the
maximum limit for any Assembly
Constituency. In order to declare an election
to be void, the grounds were set out in
Section 100 of the Act. Sub- section (1)(b) of
Section 100 relates to any corrupt practice
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent. In order to bring a matter within the
scope of sub-section (1)(b), the corrupt
practice has to be one defined in Section 123.
What is referred to in sub-section (6) of
Section 123 as corrupt practice is only the
incurring or authorising of expenditure in
contravention of Section 77. Sub-section (6)
of Section 123 does not take into its fold, the
failure to maintain true and correct accounts.
The language of sub-section (6) is so clear that
the corrupt practice defined therein can relate
only to sub-section (3) of Section 77, i.e., the
incurring or authorising of expenditure in
excess of the amount prescribed. It
cannot by any stretch of imagination be said
that non-compliance with Sections 77(1) and
(2) would also fall within the scope of
Section 123(6). Consequently, it cannot fall
under Section 100(1)(b). The attempt here by
the first respondent is to bring it within
Section 100(1)(d)(iv). The essential
requirement under that sub-section is that the
result of the election insofar as it concerns the
returned candidate has been materially
affected. It is needless to point out that failure
on the part of the returned candidate to
maintain accounts as required by Sections
77(1) and (2) will in no case affect, and much
less materially, the result of the election.‖
100. In Govind Singh (supra), the Hon‘ble Supreme
Court held as under:
―73. Thus, while comparing the evidence of
PW 9, PW 10, PW 11 and PW 12 relied upon[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 47
by the respondent Smt Kaur with the evidence
of PW 1, PW 2, PW 4, PW 5 and PW 6, it is
not possible to attach more weight to the
witnesses relied upon by the respondent
herein as we cannot overlook the well-settled
position that the behaviour, character and
demeanour of the witnesses who had been
examined at the stage of trial has to be taken
into account and is of prime consideration.
In view of this position, the evidence of PW 1,
PW 2, PW 4, PW 5 and PW 6 is clearly
more reliable than PW 9, PW 10 and PW 11.
78. In view of the unsatisfactory analysis of the
evidence and erroneous approach of the High
Court while recording the finding on the issue
of corrupt practice, we consider this appeal fit
to be allowed as no conclusive inference can
be drawn that the respondent Smt Kaur who
had secured only third position in the election
has succeeded in proving the charge of
corrupt practice against the returned
candidate, the appellant herein and the same
at best can be held to be based on allegations
which desperately required unimpeachable
evidence of trustworthy nature adduced by
independent witnesses which could not be
treated as tainted or evidence of doubtful
nature. Since the charge of corrupt practice
has to be proved beyond reasonable doubt
and not merely by preponderance of
probabilities, the evidence relied upon by the
High Court cannot be held to be of such
probative value which does not reflect on the
credibility of the witnesses relied upon by the
High Court, so as to interfere with the
election result by which the appellant had
been elected. Consequently, we set aside the
judgment and order of the High Court and
allow this appeal. However, the parties are left
to bear their own costs.‖
101. As admitted by the first respondent, the election
separate bank account was opened by the first respondent only on
24.03.2019. In his evidence, P.W.4 has clearly stated that as per the
instructions of the Election Commission of India, a separate bank
account exclusively for the purpose of election expenditure is
required to be opened to facilitate monitoring of the election
expenditure. The officially uploaded affidavit in Form 26 of the
petitioner is dated 21.03.2019. Thus, it is clear that on the date of
filing of the nomination papers i.e. on 21.03.2019, no bank account
was opened by the first respondent. This clearly proves that the first
respondent has violated the notification dated 15.10.2013 of the
Election Commission of India. That apart, the first respondent did
not maintain his election expenditures as per the
instructions/guidelines of the Election Commission of India.
102. Any election expenses incurred without routing it
through the said election separate bank account by way of cheque or
draft or RTGS/NEFT will be treated that the candidate has not
maintained the accounts in the manner prescribed by the Election
Commission of India. As per the notifications dated 12.11.2018 and
30.11.2018, the limit of allowing the expenditure has been revised to
Rs.10,000/- and that the expenditure limit of Rs.10,000/- by cash in48 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
connection of an election consist of a single transaction or an
aggregate of transactions entered into with a single person/entity
during the entire poll period. Thus, all expenditures exceeding
Rs.10,000/- whether by a single transaction or an aggregate of
transactions with a single person/entity during the entire poll period
have to be compulsorily made by cross account payee cheque or
draft or by RTGS/NEFT or any other electronic mode linked with the
separate election bank account of the candidate opened for election
purpose.
103. Thus, from the aforesaid it is clear that all the
election expenditures are to be made by the candidate only from the
separate election bank account and all money to be spent on
electioneering should also be deposited in the said account
irrespective of its funding from any source, including candidate‘s
own fund.
104. According to the petitioner, the following are the
illegalities committed by the first respondent in his election
expenditures:
―On 21.03.2022, the first respondent
expended a sum of Rs.19,250/- without
routing from his election bank account.
On 25.03.2019, the first respondent
expended Rs.3,300/- for filing second
nomination paper without routing from his
election bank account.
On 26.03.2019, Election Bank
Account bearing No.1219102000005449 of
IDBI Bank, Imphal was opened and
operational which is after filing of his
nomination paper on 21.03.2019.
On 28.03.2019, the first respondent
incurred expenses in cash a sum of
Rs.21,600/- wherein he has mentioned the
payee to be multiple parties.
On 30.03.2019, the first respondent
incurred expenses in cash a sum of
Rs.11,200/- in favour of ZBCT Men Society
though in separate transactions of Rs.10,000/-
and Rs.1,200/-.
On 01.04.2019, the first respondent
incurred expenses in cash amounting of
Rs.26,500/- in favour of the Chief of the
Village for the meeting held at Laikoiching,
Saikul in separate transactions.
On 06.04.2019, the first respondent
incurred expenses in cash amount of
Rs.13,400/- as vehicle expenses in three
separate transactions of Rs.4000/-, Rs.4000/-
and Rs.5400/-.‖
105. To rebut the aforesaid particulars, the first
respondent has not produced any materials. However, the learned
senior counsel submitted that the 2-Outer Parliamentary
Constituency is predominantly remote hill areas with no facility of
Banking in most of areas except in some District headquarters during
17th Lok Sabha Election, 2019 and the same is backed by unshaken
evidence of D.W.4, D.W.5 and D.W.6 as also the evidence of D.W.1
and D.W.3.[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 49
106. A candidate is not free to spend as much as he likes
in the election. The law prescribes that the total election expenditure
shall not exceed the maximum limit prescribed under Rule 90 of the
Conduct of Election Rules, 1961. For the State of Manipur in the 17th
Lok Sabha Election, 2019, a candidate can spend up to Rs.70 lakh.
107. On a perusal of Exts.Z/9 series, it is clear that the
amount incurred for election expenses comes to Rs.74,13,218/-,
which is beyond Rs.70 lakh as prescribed by the Election
Commission of India. In fact, during cross- examination, when
learned counsel for the petitioner posed a question – Do you agree
that all documents at Ext.Z/7 (Part-A Register), Ext.Z/8 (Part-B
Register) and Ext.Z/9 (Part-C Register) are documents pertaining to
you Election Expenditures of 17th Lok Sabha Election 2019 of 2-
Outer Manipur (ST) parliamentary Constituency, the first respondent
answered ―Yes‖. Thus, from the details of election expenditure of the
first respondent referred to above, it is clear that beyond the permitted
limit, the first respondent incurred election expenses.
108. The Expenditure Observer is not properly
discharged his duties does not mean that the illegality committed by
the first respondent can be allowed to be sustained. As rightly argued
by learned counsel for the petitioner, the petitioner is well within his
rights to challenge the said illegality by way Election Petition and not
approaching the Election Commission under Section 10 of the RP Act
does not disentitle him to seek the remedy as available before this
Court, especially when there is a gross illegality having been
committed by the first respondent.
109. The argument of the learned senior counsel for the
first respondent that most of the electors are living at remote area
where no facility of Bank at most of the area of 2-Outer
Parliamentary Election, 2019 and that the first respondent could not
transact all his election expenditures through the Bank and that such
irregularity cannot affect the election of the first respondent cannot be
countenanced.
110. It is well settled principle that an illegality if
committed cannot be allowed to be continued, especially when the
same is brought to the knowledge of the Court.
111. In order to ascertain whether a corrupt practice has
been committed or not, it is important that the scheme of the RP Act
is to be read in consonance with each other provisions and not in parts
or, in exclusion of one from the other, or in isolation.
112. Section 100 of the RP Act, lays down various
grounds under which an election can be declared as null and void,
one of them is ―corrupt practice‖. Corrupt practice is defined
under Section 123 of the RP Act, which includes, bribery, undue
influence, appear or to promote feeling of enmity, in the name of
symbol, religion or caste, publishing false facts, hiring or procuring of
vehicles, or free conveyance of any elector, incurring or authorizing
of expenditure in contravention of Section 77, obtaining or procuring
any assistance from authority or officer and booth capturing.
113. At this juncture, it is to be mentioned that it is
bounden duty of a candidate to disclose the full particulars of the
donors as per the mandatory instruction of the Election Commission
of India and the first respondent cannot accept any donation in cash
exceeding Rs.10,000/- without knowing the full particulars of the
donors. There is also no provision or instruction of the Election
Commission of India to collect money through donation box. As such,
acceptance of cash exceeding Rs.10,000/- by the first respondent
from the donors is against the mandatory instruction and is also
illegal which amounts to corrupt practice and it also transpires the50 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
corrupt practice committed by the first respondent, in view of the
discussions held supra.
114. It is reiterated that Section 77 of the RP Act
mandates maintaining and filing of separate and correct account of
election expenses as per the prescribed format and also that the
expenditure for the election should not exceed the prescribed limit.
Further, if the returned candidate do not maintain or file election
expenses as mandated under Section 77(1), (2) and (3) of the RP Act,
then, it would mean that there is a non-compliance as laid down under
Section 100(1)(d)(iv) of the RP Act and for that reason, the election of
the returned candidate can be declared as null and void.
115. It is apposite to mention that the grounds under
which an election could be declared void by the High Court are
provided under Section 100 of the RP Act.
―Clauses (a), (b), (c) and (d) of Sub-section (1)
of Section 100 specify the grounds under
which the election of the returned candidate
can be declared void.
Section 100(2) clarified the conditions in
which the election of the returned candidate
may not be declared void. The present case
does not fall under this category.
Clause (a) of Section 100(1) provides the
situation where a returned candidate was not
qualified on the date of his election or
was disqualified to be chosen to fill the seat
under the Constitution or this Act. It is not the
case of the election petitioner that the
respondent was not qualified or was
disqualified, to be chosen to fill the seat under
the Constitution or this Act. Hence, clause (a)
of Section 100(1) is not attracted in the
present case.
Clause (b) of Section 100(1) provides that an
election can be declared void if the Court
finds that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his
election agent.
Clause (c) of Section 100(1) provides for
declaring the election void if any nomination
is improperly rejected. Since in the present
case there is no such case of improper
rejection of any nomination, this ground is
also not applicable.
116. The next ground for declaring the election to be
void as provided under clause (d) of Section 100(1) of the Act is if
the High Court is of opinion that the result of the election, in so far as
it concerns a returned candidate, has been materially affected -
―(i) by the improper acceptance of any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate or by an
agent other than his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 51
vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act or
of any rules or orders made under this Act, the
election of the returned candidate shall be
declared void."
117. It is the case of the petitioner that the nomination
paper of the first respondent has been improperly accepted, which
was otherwise liable to be rejected, as the first respondent has failed
to disclose vital information. According to the learned counsel for
the petitioner, furnishing of incorrect statement in the affidavit in
Form 26 filed along with the nomination paper in terms of the
provisions under Sections 33 and 33-A of the RP Act read with
Article 173 of the Constitution of India deserves to be rejected under
Section 36(2) of the RP Act. From the oral and documentary evidence
produced by both sides, it is clear that the Returning Officer
improperly accepted the nomination paper of the first respondent. 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. The candidate must take the
maximum effort to explicitly remark as ―Nil‖ or ―Not Applicable‖ or
―Not known‖ in the columns and not to leave the particulars blank.
118. It is also clear that the affidavit which was said to
be accepted by the Returning Officer has not been uploaded in the
official website of the Election Commission of India as mandated
under law. The ultimate purpose of filing of affidavit along with the
nomination paper is to effectuate the fundamental right of the
citizens under Article 19(1)(a) of the Constitution of India.
Additionally, the non-dissemination of the affidavit in Form 26 dated
25.3.2019 through the website materially affected the election of the
first respondent.
119. As discussed above, the first respondent has
violated the instructions/notification/guidelines of the Election
Commission of India and the mandatory provisions of the RP Act in
committing illegality in the election expenditures and also exceeded
the maximum limit for expenditures as prescribed. The aforesaid
would also amount to corrupt practice as defined under the RP Act.
Though the first respondent contended that he has not concealed any
material information in his affidavit, as discussed above, nothing has
been produced to establish the same. Further, the documents produced
and are referred by the first respondent do not substantiate his case.
On the other hand, the failure of the first respondent in disclosing the
name of his spouse and his dependents, non-agricultural land and
details of his spouse etc. in the affidavit in Form 26 of the first
respondent dated 21.03.2019 would constitute a corrupt practice
falling under undue influence as defined under Section 123(2) of the
RP Act.
120. It is reiterated that whether the nomination paper is
to be accepted or rejected at the time of scrutiny is purely within the
domain of the Returning Officer and the Returning Officer has to
decide within the confines of Section 36 of the RP Act and relevant
laws holding the field. When defect or mistake is found to be of
substantial character, then the Returning Officer is under legal
obligation to reject the nomination and not otherwise. The petitioner
contends that it is a defect of substantial character. On the contrary,
the first respondent contends that there is no defect in his nomination,
which was negatived by this Court in the discussions held supra.
121. By placing reliance upon the decision of the
Hon‘ble Supreme Court in the case of Magraj Patodia v. R.K.Birla,52 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
(1970) 2 CC 888, the learned senior counsel for the first respondent
submitted that the alleged corrupt practice stated by the petitioner is
to be proved beyond reasonable doubt and preponderance of
probabilities is not sufficient.
122. In Magraj Patodia (supra), the Hon‘ble Supreme
Court held as under:
“29. It is true that many times corrupt
practices at election may not be able to be
established by direct evidence and the
commission of those corrupt practices may
have to be inferred from the proved facts and
circumstances but the circumstances proved
must reasonably establish that the alleged
corrupt practice was committed by the
returned candidate or his election agent. As
mentioned earlier preponderance of
probabilities is not sufficient.”
123. In Virender Nath Gautam (supra), the Hon‘ble
Supreme Court held thus:
―35. All ―material facts‖ must be pleaded by
the party in support of the case set up by him.
Since the object and purpose is to enable the
opposite party to know the case he has to
meet with, in the absence of pleading, a party
cannot be allowed to lead evidence. Failure to
state even a single material fact, hence, will
entail dismissal of the suit or petition.
Particulars, on the other hand, are the details
of the case which is in the nature of evidence
a arty would be leading at the time of trial.‖
124. The initial burden to prove the allegations made in
the Election Petition although was upon the petitioner, but for
proving the facts which were within the special knowledge of the first
respondent, the burden was upon him in terms of Section 106 of the
Evidence Act. It is also settled that when both parties have adduced
evidence, the question of onus of proof becomes academic.
Furthermore, an admission on the part of a party to the list shall be
binding on him and in any event a presumption must be made that the
same is taken to be established. The Exts.Z/4, to Z/9, which are
admittedly filed by the first respondent before the Returning Officer
and are admitted by him proves the allegation of the petitioner
against the first respondent.
125. Time and again the Hon‘ble Supreme Court held
that the success of a winning candidate at a election should not be
lightly interfered with. This is all the more so when the
election of a successful candidate is sought to be set aside for no fault
of his, but of someone else. That is why, the scheme of Section 100 of
the RP Act, especially clause (d) of sub-section (1) thereof clearly
prescribes that in spite of the availability of grounds contemplated by
sub-clauses (i) to (iv) of clause (d), the election of a returned
candidate shall not be voided unless and until it is proved that the
result of the election insofar as it concerns a returned candidate was
materially affected.
126. In order to get an election declared as void under
the said provision, the petitioner must aware that on account of non-
compliance with the provisions of the Constitution or of RP Act or of
any rules or orders made under the Act, the result of the election,
insofar as it concerned the returned candidate, was materially affected.
As per the principle enunciated supra, in the instant case, in view of the[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 53
foregoing discussions, the petitioner has established that the result of
the election, insofar as it concerned the returned candidate, namely
the first respondent, was materially affected in order to set aside the
same. As stated supra, if the petitioner establishes failure on the part
of the first respondent to furnish the vital information as contemplated
under Section 33A of the RP Act, the question whether the result of
the returned candidate was materially affected or not is not a relevant
factor to set aside the election of the first respondent. Hence, the
submission made by the learned counsel for the first respondent has
no legs to stand.
127. The sanctity of the electoral process imperatively
commands that each candidate owes and is under an obligation that a
fair election is held. Undue influence should not be employed to
enervate and shatter free exercise of choice and selection. No
candidate is entitled to destroy the sacredness of election by indulging
in undue influence. The basic concept of ―undue influence‖ relating
to an election is voluntary interference or attempt to interfere with
the free exercise of electoral right. The voluntary act also
encompasses attempts to interfere with the free exercise of the
electoral right.
128. At the cost of repetition, the right of the voters to
know of the relevant particulars of the candidates is very important,
as ultimately it is the voters who decide the fate of the candidates
who will periodically exercise the political power. A citizen of this
country has a fundamental right to receive information regarding the
assets and liabilities of a candidate of the Parliament or the Lok Sabha
or the Legislative Assemblies so as to make his choice effective and
meaningful.
129. In the instant case, admittedly, the Returning
Officer was in possession of two different nomination papers and
affidavit in Form 26, thereby giving an advantage to the Returning
Officer to compare the same to ascertain the truthfulness of the
information having been provided in both the Forms and upon finding
that the later Form 26 has been improved upon and even the details of
the jewelleries of the first respondent and his spouse has been
mentioned in Form 26 dated 25.3.2019, the Returning Officer ought
to have rejected the nomination paper, as there was an intentional
omission not typographical error on the part of the first respondent in
filing Form 26 dated 21.3.2019 which was the only Form put up for
public view and uploaded on the website and not Form 26 dated
25.03.2019. In the preceding paragraph, this Court held that the non-
dissemination of the affidavit in Form 26 dated 25.3.2019 through
the website materially affected the election of the first respondent.
130. It can be understood that at the time of scrutiny, the
Returning Officer may not be in a position to ascertain the
truthfulness of the information provided, but he cannot ignore the
blanks which are visible from the naked eyes and upon finding that
information of substantial character, like name of the spouse, name of
the dependents, details of returns of the candidate, spouse and
dependents, income of the spouse, who is a Government servant,
movable and immovable property and the details of non-agricultural
has either been left blank or are not filled, the Returning Officer
should have rejected the said nomination paper forthwith.
131. One may look this aspect from another perspective.
If the very basis of the election of the returned candidate, i.e., the
nomination of the candidate which is stated to be valid, is later on
found to be not valid, as in the present case, the very basis and
foundation for sustaining the election of the returned candidate goes.
In other words, once the foundation is taken away, the election will
have no basis to stand and thus will be rendered otiose. He cannot be54 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
treated to have been elected at all. Hence, the moment there is a
finding that the nomination of the returned candidate has been
improperly accepted, it immediately materially affects the result of the
returned candidate. Accordingly, if there be any burden on the
petitioner to prove that the result of the election of the returned
candidate has been materially affected by improper acceptance of the
nomination of the returned candidate, such a burden also gets
discharged immediately. Thus, there will not be any need to prove
further on the part of the petitioner that the improper acceptance of
the nomination of the returned candidate has materially affected the
result of the election of the returned candidate.
132. This Court is of the view that the affidavit in Form
26 filed by the first respondent suffers from the defects of substantial
character. The petitioner also established that the first respondent
filed affidavit in Form 26 dated 21.3.2019 along with the nomination
paper submitted by him. The only uploaded affidavit in Form 26 of the
first respondent is dated 21.3.2019 and while filing nomination along
with the affidavit in Form 26, the first respondent has failed to follow
the instructions of the Election Commission of India in relation to
separate bank election expenditure. The act of the first respondent
would amounts to corrupt practice and therefore, it materially
affected the result of the election of 2-Outer Manipur (ST)
Parliamentary Constituency to the 17th Lok Sabha, 2019.
133. For all the reasons stated above, the election of the
first respondent is declared void under Section 100 (1) (d) (i) (iv)
read with Section 100 (1)(b) of the RP Act. Accordingly, Issue Nos.1
to 6 are answered in favour of the petitioner and against the first
respondent.
Issue No.7:
134. The learned counsel for the petitioner submitted
that consequent upon the declaration of the election of the first
respondent is void and the votes numbering 363527 received by the
first respondent will become invalid votes and since the petitioner
received majority of valid votes numbering 289745, this Court could
declare the petitioner as elected. He submits that the votes secured by
the first respondent whose nomination has been improperly accepted
and whose election liable to be set aside, stands waster and the
petitioner is liable to be declared elected under Section 101 of the RP
Act. In support, the learned counsel has referred to Sections 84, 98
and 101 of the RP Act.
135. The learned counsel for the petitioner submitted
that having declared the election of the first respondent as void, the
natural consequence in the present case would have been to declare
the petitioner who is the only other remaining candidate secured
highest votes next to the first respondent with valid nomination in
the election for the 2-Outer Manipur (ST) Parliamentary
Constituency to be elected, by default in terms of the relevant
provisions of the RP Act. In support, the learned counsel placed
reliance upon the following decisions:
(i) Konapppa Rudrappa Nagouda v.
Vishwanath Reddy and another, AIR
1969 SC 447.
(ii) Chandeshwar Saw v. Brij Bhushan
Prasad and others, 2020 SCC
OnLine SC 89.
(iii) Mopuragundu Thpppeswamy v.
K.Eranna Ananthapur, 2018 SCC
OnLine Hyd 413.[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 55
(iv) Mayanglambam Rameshwar Singh
v. Yengkhom Surchandra Singh and
others, 2020 SCC OnLine Mani 312.
136. The learned senior counsel for the first respondent
argued that the petitioner is not entitled to be declared as elected as
returned candidate in any circumstances. Further, assuming but not
admitting that the Election Petition of the petitioner succeeds, the
petitioner cannot be declared as election in the place of the first
respondent, as there are eight candidate contesting in the 17th Lok
Sabha Election, 2019, it would be impossible to predict or guess in
whose favour the voters would have voted if they were aware that
elected candidate was disqualified to contest election or if he was not
permitted to contest the election by rejecting his nomination paper to
contest the election and what would have been voting pattern. The
learned senior counsel urged that in the instant case it will be more
difficult because the margin runs in more than 73,782 votes.
137. In order to appreciate the contention of the
petitioner, it is necessary to quote Sections 84, 98 and 101 of the RP
Act:
―84. Relief that may be claimed by the
petitioner – A petitioner may, in addition to
claiming a declaration that the election of all
or any of the returned candidates is void, claim
a further declaration that he himself or any
other candidate has been duly elected.‖
98. Decision of the High Court.— At the
conclusion of the trial of an election petition 2
the High Court shall make an order—
(a) dismissing the election petition; or
(b) declaring the election of all or
any of the returned candidates to be
void; or
(c) declaring the election, of all or
any of the returned candidates to be
void and the petitioner or any other
candidate to have been duly elected
101. Grounds for which a candidate other
than the returned candidate may be
declared to have been elected.— If any
person who has lodged a petition has, in
addition to calling in question the election of
the returned candidate, claimed a declaration
that he himself or any other candidate has
been duly elected and the High Court is of
opinion—
(a) that in fact the petitioner or such
other candidate received a majority of
the valid votes; or
(b) that but for the votes obtained by
the returned candidate by corrupt
practices the petitioner or such other
candidate would have obtained a
majority of the valid votes, the High
Court shall after declaring the election
of the returned candidate to be void
declare the petitioner or such other
candidate, as the case may be, to have
been duly elected.‖56 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
138. Section 84 of the RP Act enables the petitioner to
seek a declaration to declare him as elected candidate in case the
election of the returning candidate was declared as void. Section 101
of the RP Act speaks of the ample power to declare the petitioner as
duly elected candidate, as the petitioner received majority of valid
votes. Thus, the relief sought by the petitioner falls within the ambit
of Sections 84 and 101 of the RP Act.
139. In Konappa Rudrappa Nagouda (supra), the
Hon‘ble Supreme Court held:
―14. We are satisfied that this appeal must
succeed and the appeal is therefore allowed,
the election of the first respondent is declared
void. In this view of the matter, the votes cast
in favour of the first respondent must be
treated as thrown away. As there was no other
contesting candidate we declare the appellant
(election petitioner) elected to the seat from
the Yadagiri constituency. The first respondent
shall bear the costs of the appellant
throughout.‖
140. In Chandeshwar Saw (supra), the Hon‘ble
Supreme Court held as under:
―20. Accordingly, this appeal succeeds. The
impugned judgment [Brij Bhushan
Prasad v. State Election Commission, 2019
SCC OnLine Pat 2391] and order is set aside.
Instead, the election case being EC No. 8 of
2016 filed by the appellant before the
Election Tribunal is allowed. A declaration is
issued under Section 140 of the Act that the
election of Respondent 1 as returned
candidate is set aside being invalid, and
instead we declare the appellant-election
petitioner as having been duly elected having
secured highest votes amongst the contesting
candidates and 95 more valid votes than that
of Respondent 1 in the subject election.‖
141. In Mayanglambam Rameshwar Singh (supra),
this Court held thus:
―120. In the instant case, trial commenced on
12.6.2017 and the Election Recrimination
Petition was filed on 7.8.2017, however, the
same was closed as not pressed on 12.9.2017
and the order dated 12.9.2017 reads thus:
―Heard Mr. Th. Modhu, learned
counsel for the applicant/successful
candidate who submits that he is not
pressing the application.
In view of the above submission
made by the learned counsel for the
applicant, the present application
stands closed as not pressed. Heard also
Mr. N Zequeson, learned counsel for
the election petitioner.‖
121. Since the order dated 12.9.2017 in
Election Recrimination Petition No. 2 of 2017
attained finality, the first respondent
cannot claim any right against the petitioner.[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 57
In other words, without having any prayer
claimed against the petitioner, it will be
erroneous for this Court to pass any order in
regard to Issue No. 7.
122. It is settled law that if the returned
candidate does not recriminate as required by
Section 97, then he cannot make any attack
against the alternative claim made by the
petition. In such a case, an enquiry would be
held under Section 100 of the RP Act so far as
the validity of the returned candidate's election
is concerned, and if as a result of the said
enquiry declaration is made that the election of
the returned candidate is void, then the Court
will proceed to deal with the alternative
claim, but in doing so, the returned candidate
will not be allowed to lead any evidence
because he is precluded from raising any pleas
against the validity of the claim of the
alternative candidate.
123. In the present case, in view of the
Election Recrimination petition No. 2 of 2017
being admittedly time barred in terms of the
provisions of Section 97 of the RP Act and the
same having been dismissed as not pressed,
no evidence against the petitioner can be
introduced or raised by the first
respondent qua non-disclosure of information.
Thus, it can safely be concluded that the
alleged materials produced by the first
respondent against the petitioner in. regard to
Issue Ne.7 is inadmissible and at the same
time, the defence set forth in the written
statement of the first respondent are not to be
taken into account and are not helpful to the
first respondent. Issue No. 7 is answered
accordingly.
124. Issue No. 8:
125. Having declared the election of
the First respondent as void, the natural
consequence in the present case would have
been to declare the only other remaining
candidate With valid nomination in the election
for the 37-Kakching Assembly Constituency
to be elected, by default in terms of the
relevant provisions of the RP Act.
126. The petitioner clearly pleaded in
his petition to declare the election of the first
respondent as null and void and declare him
as elected candidate.
127. By placing reliance upon the
following decisions, the learned counsel for
the first respondent submitted that the
petitioner cannot be declared as elected when
there are several candidates in the election in
question:
(1) Konappa Rudrappa Nadgouda v.
Vishwanath Reddy, (1969) 2 SCR 9058 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
(2) Thiru John v. Returning Officer,
(1977) 3 SCC 540.
(3) Prakash Khadri v. Dr. Vijaya Umar
Khandra, (2002) 5 SCC 568.
128. In Konappa Rudrappa Nadgouda
(supra) the Hon‘ble Supreme Court held:
―12……. When there are only
two contesting candidates, and one of
them is under a statutory
disqualification, votes cast in favour of
the disqualified candidate may be
regarded as thrown away, irrespective
of whether the voters who voted for
him were aware of the
disqualification. This is not to say that
where there are more than two
candidates in the field for a single seat,
and one alone is disqualified, on proof
of the disqualification all the votes cast
in favour his will be discarded and the
candidate securing the next highest
number of votes will be declared
elected. In such a case, question of
notice to the voters may assume
significance, for the voters may not,
if aware of the disqualification have
voted for the disqualified candidate.‖
129. In Thiru John (supra), the Hon'ble
Supreme Court held:
―54. This takes us to the next
question. Should all the votes that had
been polled in favour of the candidate
(Shri John) who has been found by the
Court to be statutorily disqualify for
election, be regarded as thrown away
and in consequence, the appellant Shri
Subrahmanyam who secure 300 votes
as against non obtained by Shri
Mohana Rangam be declared elected?
55. Again the answer to this
question in our opinion must be in the
negative. It is nobody's case that
electors who voted for Shri John had at
the time of election, knowledge or
notice of the statutory disqualification
of this candidate. On the contrary they
must have been under the impression
that Shri John was candidate whose
nomination has been validly accepted
by the Returning Officer. Had the
electors noticed of Shri John's
disqualification, how many of them
would have voted for him and how
many for the other continuing
candidates, including Sarvashri
Subrahmanyam and Mohana
Rangam and in that preferential order,
remains a question in the realm of
speculation and unpredictability.‖[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 59
130. In Prakash Khandre (supra), the
Hon'ble Supreme Court held:
―24…… As held by the
Constitution Bench in Konappa case
that some general rule of election law
prevailing in the United Kingdom that
the votes cast in favour of a person who
is found disqualified for election may
be regarded as ―thrown away‖ only if
the voters had noticed before the poll
the disqualification of the candidate,
has no application in our country and
has only merit of antiquity. We would
observe that the question of sending
such notice to all voters appears to us
alien to the Act and the Rules. But that
question is not required to be dealt with
in this matter. As stated earlier, in the
present case, for one seat, there were
five candidates and it would be
impossible to predict or guess in
whose favour the voters would have
voted if they were aware that the
elected candidate was disqualified to
contest election or if he was not
permitted to contest the election by
rejecting his nomination paper on
the ground of disqualified to contest
the election and what would have been
the voting pattern. Therefore, order
passed by the High Court declaring the
election petitioner Dr. Vijay Kumar
Khandre as elected required to be set
aside.‖
131. In order to appreciate the
contention of the petitioner, it is not out of
place to extract hereunder Section 84 of the
RP Act.
―84. Relief that may be claimed by
the petitioner-A petitioner may, in
addition to claiming a declaration that
the election of all or any of the returned
candidates is void, claim a further
declaration that he himself or any
other candidate has been duly elected.‖
132. Section 84 of the RP Act enables
the petitioner to seek a declaration to declare
him as elected candidate in case the election of
the returning candidate was declared as void.
Thus, the relief sought by the petitioner falls
within the ambit of Section 84 of the RP Act.
The decisions relied on by the learned counsel
for the first respondent is distinguishable
from the facts of the instant case and therefore,
the aforesaid decisions would have no help to
the case of the first respondent. In the instant
case, it is also admitted by the first respondent
that the petitioner is the next highest candidate
who secured 10503 votes. The next highest
vote is 2215 got by the Communist party.
Since the difference between the first60 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
respondent and the petitioner is 630 votes, the
question of notice to the voters may not arise
in the given circumstances of the present
case.
133. In Konappa Rudrappa Ngouda
(supra), the Hon‘ble Supreme Court held :
―We are satisfied that this appeal
must succeed and the appeal is therefore
allowed, the election of the first
respondent is declared void. In this
view of the matter, the votes cast in
favour of the first respondent must be
treated as thrown away. As there was
no other contesting candidate we
declare the appellant (election
petitioner) elected to the seat from the
Yadagiri constituency. The first
respondent shall bear the costs of the
appellant throughout.‖
134. In Chandeshwar Saw v. Brij
Bhushan Prasad, 2020 SCC OnLine SC 89, the
Hon'ble Supreme Court observed as under:
―20. Accordingly, this appeal
succeeds. The impugned judgment and
order is set aside. Instead, the election
case being E.C. No. 08/2016 filed by
the appellant before the Election
Tribunal is allowed. A declaration is
issued under Section 140 of the Act
that the election of respondent No. 1 as
returned candidate is set aside being
invalid, and instead we declare the
appellant/election petitioner as having
been duly elected having secured
highest votes amongst the contesting
candidates and 95 more valid votes
than that of respondent No. 1 in the
subject election.‖
135. In Mopuragundu Thippeswamy v.
K. Eranna, 2018 SCC OnLine Hyd 413, the
High Court of Andhra Pradesh held as under:
―102. The petitioner clearly
pleaded in the Election Petition to
declare the election of the first
respondent as null and void, and
declare him as elected candidate. In
order to appreciate the contention of
the petitioner, it is not out of place to
extract hereunder Section 84 of the
R.P. Act.
84. Relief that may be claimed by
the petitioner-A petitioner may, in
addition to claiming a declaration that
the election of all or any of the returned
candidates is void, claim a further
declaration that he himself or any
other candidate has been duly elected.
103. Section 84 of the RP Act
enables the petitioner to seek a[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 61
declaration to declare him as elected
candidate in case the election of the
returning candidate was declared as
void. The relief sought by the
petitioner falls within the ambit of
Section 84 of the R.P. Act.
104. As observed earlier, the
first respondent got 76,601 votes and
the petitioner got 61,905 votes. The
first respondent was declared as
elected Member of 275-Madakasira
Legislative Assembly Constituency
with a majority of 14,636 votes.
Among all the candidates contested,
the petitioner secured highest votes
after the first respondent. Consequent
upon the findings on Additional
Issue, the petitioner is entitled to be
declared as elected Member of 275-
Madakasira Legislative Assembly
Constituency. Accordingly, Issue No. 4
is answered in favour of the petitioner
and against the first respondent.‖
136. It has been pointed out by the
learned counsel for the petitioner that as
against the judgment of the Andhra Pradesh
High Court in 2018 SCC OnLine Hyd 413, the
respondent
K. Eranna, preferred Civil Appeal No. 11908
of 2018 before the Hon'ble Supreme Court
and by the order dated 12.12.2018, the Civil
Appeal No. 11908 of 2018 stands dismissed
and he has also produced the judgment of the
Hon'ble Supreme Court. Thus, judgment of the
Andhra Pradesh in K. Erranna (supra) is
squarely applies to the case on hand.
137. As stated supra, the first
respondent got 11133 votes and the petitioner
got 10503 votes. The First respondent was
declared as elected member of 37-Kakching
Assembly Constituency. Among all the
candidates contested the petitioner secured
10503 votes after the first respondent.
Consequent upon the findings that the
election of the first respondent is declared as
null and void, the petitioner is entitled to be
declared as elected member of 37-Kakching
Assembly Constituency. Issue No. 8 is
answered in favour of the petitioner.‖
142. In Mopuragundu Thippeswamy (supra), the
Telangana High Court held as under:
―102. The petitioner clearly pleaded in the
Election Petition to declare the election of the
first respondent as null and void, and declare
him as elected candidate. In order to
appreciate the contention of the petitioner, it is
not out of place to extract hereunder Section
84 of the R.P. Act.
84. Relief that may be claimed by the62 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(iii)]
petitioner – A petitioner may, in
addition to claiming a declaration that
the election of all or any of the returned
candidates is void, claim a further
declaration that he himself or any
other candidate has been duly elected.
103. Section 84 of the RP Act enables the
petitioner to seek a declaration to declare him
as elected candidate in case the election of the
returning candidate was declared as void. The
relief sought by the petitioner falls within the
ambit of Section 84 of the R.P. Act.
104. As observed earlier, the first
respondent got 76,601 votes and the petitioner
got 61,905 votes. The first respondent was
declared as elected Member of 275-
Madakasira Legislative Assembly
Constituency with a majority of 14,636 votes.
Among all the candidates contested, the
petitioner secured highest votes after the first
respondent. Consequent upon the findings on
Additional Issue, the petitioner is entitled to
be declared as elected Member of 275-
Madakasira Legislative Assembly
Constituency. Accordingly, Issue No.4 is
answered in favour of the petitioner and
against the first respondent.
105. In the result, the Election Petition is
allowed, setting aside the election of the first
respondent as Member of 275-Madakasira
Legislative Assembly Constituency in the
General Elections held in the month of May,
2014 and declaring the petitioner as duly
elected Member of 275-Madakasira
Legislative Assembly Constituency. Both the
parties are directed to bear their own costs.
Miscellaneous petitions, if any pending in the
Election Petition, shall stand closed.‖
143. It has been pointed out by the learned counsel for
the petitioner that as against the judgment of the Telangana High
Court in 2018 SCC OnLineHyd 413, the respondent K.Eranna,
preferred Civil Appeal No.11908 of 2018 before the Hon‘ble
Supreme Court and by the order dated 12.12.2018, the Civil Appeal
No.11908 of 2018 stands dismissed. Thus, judgment of the Andhra
Pradesh in K.Erranna (supra) is squarely applies to the case on hand.
144. As stated supra, the first respondent got 363527
votes and the petitioner got 289745 votes. The next highest person
secured votes is the seventh respondent i.e. 152510 votes. The first
respondent was declared as elected member of 2-Outer Manipur
(ST) Parliamentary Constituency in the General Election to 17th Lok
Sabha, 2019. Among all the candidates contested, the petitioner
secured 289745 votes after the first respondent. The difference
between the petitioner and the seventh respondent is 137235 votes.
145. Though the Hon‘ble Supreme Court held that
where there are more than two candidates in the field, it is not
possible to apply the same ratio as could be applied when there are
only two candidates, in the facts and circumstances of the case and
number of votes secured by the petitioner, it would be appropriate to
consider that the petitioner is duly elected as member. Further, the
pleadings of material facts produced by the petitioner co-relatable to[भाग II—खण् ड 3(iii)] भारत का रािपत्र : असाधारण 63
the ingredients of clause (a) or (b) of Section 101 of the RP Act to
sustain the prayer (c) made in the Election Petition. In view of the
fact that there were eight candidates in the fray, the claim of the
petitioner to declare him as elected member cannot be denied for the
reason that among all the candidates contested, the petitioner secured
highest votes after the first respondent. Consequent upon the findings
that the election of the first respondent is declared as null and void,
the petitioner is entitled to be declared as elected member of 2-Outer
Manipur (ST) Parliamentary Constituency in the General Election
to 17th Lok Sabha, 2019. Accordingly, Issue No.7 is answered in
favour of the petitioner.
146. In the result,
a) the Election Petition is allowed by
declaring the election of the Respondent
No. 1 as Member of 2-Outer Manipur (ST)
th
Parliamentary Constituency to the 17
Lok Sabha, 2019 as null and void;
b) this Court declared that the Petitioner is
duly elected as a member of 2-Outer
Manipur (ST) Parliamentary
Constituency;
c) both the parties are directed to bear their
own cost.
JUDGE
FR/NFR
Sushil
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.