RAJENDRA KUMAR MESHRAM Vs. VANSHMANI PRASAD VERMA AND ANR
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3797 of 2015, Judgment Date: Oct 03, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3797 OF 2015
RAJENDRA KUMAR MESHRAM APPELLANT(S)
VERSUS
VANSHMANI PRASAD VERMA AND ANR RESPONDENT(S)
JUDGMENT
RANJAN GOGOI, J.
1. The election of the appellant to the No.81 Deosar Constituency of
Madhya Pradesh Legislative Assembly which was held on 11.05.2013 has been
set aside by the High Court in an election petition filed by the respondent
No.1 herein. The validity of the said order of the High Court is the
subject matter of the present appeal.
2. On a reading of the election petition filed by the respondent No.1,
it would appear to us that several grounds were urged to invalidate the
election in question. According to the respondent-election petitioner, one
of the nominations filed by him as a candidate of the Indian National
Congress Party was wrongly rejected on the ground that the symbol allotment
letter was submitted by the election petitioner after the stipulated time.
However as two other nominations filed by the respondent-election
petitioner as an independent candidate was accepted, he contested the
election in which he lost. Consequently, he challenges the rejection of his
nomination as a Indian National Congress Party candidate as being wrongful.
Apart from the above ground, the election petition was also filed alleging
that the appellant-returned candidate was a government servant. In addition
to the above, it was pleaded that the appellant-returned candidate had
failed to furnish, along with the nomination paper, a copy/certified copy
of the electoral roll of No.80 Singrauli constituency in which electoral
roll his name was claimed to be appearing against serial No.118. According
to the election petitioner on account of the aforesaid omission the
returned candidate was not eligible to participate in the election. His
nomination, therefore, was wrongly accepted.
3. The High Court answered the first two questions in favour of the
returned candidate. However, insofar as the third question set forth above
is concerned, the conclusion of the High Court is adverse to the returned
candidate. In this connection the High Court came to the conclusion that
the returned candidate had not filed the electoral roll or certified copy
thereof of No.80 Singrauli Constituency and therefore the returning officer
had committed an illegality in accepting the nomination of the returned
candidate and in not rejecting the same on account of non-compliance of
Sections 33(5) and 36(2)(b) of the Representation of People Act, 1951 (For
short, “the 1951 Act”). On the said basis the High Court came to the
conclusion that the election of the returned candidate was liable to be
declared void under Section 100(1)(a) along with Section 100(1)(d)(i) of
the 1951 Act. Consequential directions therefore have been issued.
Aggrieved this appeal has been filed.
4. We have heard Shri Shekhar Naphade, learned senior counsel appearing
for the appellant, Shri Vivek Tankha, learned senior counsel appearing for
the respondent No.1 and Shri Mishra Saurabh, learned counsel for the
respondent No.2.
5. As no cross appeal has been filed by the respondent-election
petitioner challenging the findings of the High Court adverse to him, the
scope of the present appeal is confined to the correctness of the order of
the High Court insofar as the third question set forth above is concerned.
6. At the outset the relevant part of the pleadings contained in the
election petition insofar as the said issue is concerned may be set out as
hereunder :-
1.11 That, the election of the respondent as a member of M.P. Legislative
Assembly for Devsar Constituency deserves to be declared as void for the
reason that the Returning Officer has wrongly rejected the petitioner's
nomination form as candidate sponsored by Indian National Congress and also
for wrongly accepting the nomination from the respondent. It is also
submitted that the respondent not only failed to submit order by Competent
Authority accepting his resignation but also failed to furnish a certified
copy of the voter list to entitle him to contest the election from Devsar
constituency as he is registered voter of 80, Singrauli constituency and
without filing the certified copy of relevant part of voter list he was not
eligible to contest from other constituency. Acceptance of respondent's
nomination form has materially affected the election result.
1.12 That the respondent has been illegally allowed to contest the
election while the petitioner has been wrongly denied the right to contest
the election and therefore, this petition.
1.13 That, the rejection of nomination form of the petitioner was
illegal and contrary to election law and rules framed thereunder and as
such declaring the respondent No.1 (one) as returned candidate from 81,
Devsar constituency deserves to be quashed and deserves to be declared as
null and void.
1.14 That, the nomination form of the respondent has been wrongly
accepted by the Returning Officer ignoring the legal provision. It is
submitted that the respondent has not produced any valid documents to prove
that he was not in service on the date of filing of his nomination form and
he has also not furnished the certified copy of the relevant part of the
voter list of the constituency in which he was registered as voter to
entitle him to contest election from other constituency i.e. 81, Devsar
Constituency.”
7. In a written statement filed by the returned candidate, all the
aforesaid averments have been denied. On the basis of the pleadings of the
parties the following issues were framed by the Court:-
(1) Whether the returning officer has malafidely rejected the
petitioner's nomination form as the candidate sponsored by the Indian
National Congress under the influence of the then ruling party ?
(2) Whether respondent No.1 was in government service at the time of
acceptance of his nomination form by the returning officer ?
(3) Whether respondent No.2 has committed illegality in accepting the
nomination form of respondent No.1 ?
(4) Whether respondent No.1 has failed to prove that his name was in the
voter list of 80 Singrauli Constituency ? (if so, effect)
(5) Whether respondent No.1 has failed to submit valid Caste Certificate
for contesting the election from the constituency reserved for scheduled
caste category ?
(6) Whether result of election of 81 Deosar Constituency was materially
affected due to improper acceptance of nomination of respondent No.1 ?
(7) Relief and costs ?
8. As issue Nos.1 and 2 extracted above, have been answered in favour of
the returned candidate and there is no cross appeal, it is only the
remaining issues that survive for consideration. All the said issues center
round the question of improper acceptance of the nomination form of the
returned candidate. In this regard, issue No.6 which raises the question of
material affect of the improper acceptance of nomination of the returned
candidate on the result of the election may be specifically noticed.
9. Under Section 100 (1)(d), an election is liable to be declared void
on the ground of improper acceptance of a nomination if such improper
acceptance of the nomination has materially affected the result of the
election. This is in distinction to what is contained in Section 100(1)(c)
i.e. improper rejection of a nomination which itself is a sufficient ground
for invalidating the election without any further requirement of proof of
material effect of such rejection on the result of the election. The above
distinction must be kept in mind. Proceeding on the said basis, we find
that the High Court did not endeavor to go into the further question that
would be required to be determined even if it is assumed that the appellant-
returned candidate had not filed the electoral roll or a certified copy
thereof and, therefore, had not complied with the mandatory provisions of
Section 33(5) of the 1951 Act. In other words, before setting aside the
election on the above ground, the High Court ought to have carried out a
further exercise, namely, to find out whether the improper acceptance of
the nomination had materially affected the result of the election petition.
This has not been done notwithstanding issue No.6 framed which is
specifically to the above effect. The High Court having failed to determine
the said issue i.e. issue No.6, naturally, it was not empowered to declare
the election of the appellant returned candidate as void even if we are to
assume that the acceptance of the nomination of the returned candidate was
improper.
10. An argument has been advanced on behalf of the respondent-election
petitioner that the High Court has also found the election to be void on
the grounds mentioned in Section 100(1)(a). In this regard it has been
submitted that the failure of the returned candidate to furnish the
electoral roll of the constituency where his name appears as a voter or the
certified copy thereof would, by itself, establish that he was not
qualified to take part in the election as he had failed to prove that he is
a voter. Therefore his election was liable to be declared void under
Section 100(1)(a) of the 1951 Act which the High Court had done.
11. Under Section 100(1)(a) the election of the returned candidate is
liable to be declared void if, inter alia, he was not qualified for
membership of Parliament or the State Legislature as may be. Section 5 of
the 1951 Act deals with qualifications for membership of a Legislative
Assembly of a State which, inter alia, requires a candidate to be an
elector of any Assembly constituency of the State. To declare an election
void under Section 100(1)(a), it must, therefore, be established that the
returned candidate is not a voter of any assembly constituency of the
State.
12. After the receipt of nomination, the election petitioner has objected
to the acceptance of the nomination of the appellant-returned candidate on
the ground that the returned candidate was a Government servant and
therefore disqualified from contesting the election. This was rejected by
the Returning Officer on 11.11.2013 holding that the returned candidate had
duly submitted his resignation which was accepted before the date of filing
of nomination. No objection to the effect that the returned candidate was
not qualified to contest the election as he was not a voter of any assembly
Constituency of the State was raised in the objection filed. Neither was
any objection taken to the effect that the returned candidate was not
eligible to participate in the election as he had not furnished the
electoral roll of the Constituency in which he was a voter or a certified
copy thereof. However, in the election petition filed, it was pleaded in
para 1.11 of the election petition, (extracted above) that the returned
candidate had “failed to furnish a certified copy of the voter list to
entitle him to contest the election from Devsar constituency as he is
registered voter of 80, Singrauli constituency and without filing the
certified copy of relevant part of voter list he was not eligible to
contest from other constituency.” There was no pleading at all to the
effect that the appellant is not a voter of any assembly constituency and
therefore is not qualified.
13. From the above, it is clear that it was not the case of the
respondent-election petitioner that the appellant-returned candidate was
not qualified to contest the election. It is only before this Court, and
that too in the oral arguments made, that it has been urged, by relying on
the order of the High Court, that the returned candidate was not qualified
to contest the election under Section 100(1)(a) of the 1951 Act and
therefore his election was rightly set aside by the High Court.
14. The trial of an election petition, as per Section 87 of 1951 Act has
to be in accordance with the provisions of the Code of Civil Procedure,
1908. When no pleadings that the election of the returned candidate was
void on grounds mentioned in Section 100(1)(a) were made and no issue on
this score was struck and no opportunity to the returned candidate to
adduce relevant evidence was afforded, the High Court, in our considered
view, could not have found that the election of the returned candidate was
void under Section 100(1)(a). In fact, from a reading of para 1.11 of the
election petition as extracted above, it clearly appears that the election
petitioner had stated that the appellant-returned candidate is a voter of
No.80 Singrauli constituency but he had omitted to enclose the electoral
roll or a certified copy thereof along with his nomination papers which
made him ineligible to contest the election. This part of the pleading must
be seen in the light of the provisions of Section 33(4) and 33(5) of the
1951 Act. Under Section 33(4) the returning officer must satisfy himself
that a candidate’s name and electoral roll numbers is the same as
claimed/entered in the nomination paper. If the candidate is a voter of
the same constituency from which he seeks election, there is no difficulty
the electoral rolls would be readily available with the returning officer.
But if the candidate is a voter of another constituency, then Section 33(5)
requires him to enclose along with the nomination or at the time of
scrutiny, the electoral roll or certified copy of the same pertaining to
that constituency. The entire case of the election petitioner as pleaded is
that the appellant-returned candidate was a voter of another constituency
i.e. No.80 Singrauli constituency but he had not enclosed or produced the
electoral roll of that constituency or a certified copy thereof thereby
making him ineligible to contest the election.
15. In view of the state of the pleadings as noticed above; the issues
framed and the evidence led by the parties, we cannot agree with the High
Court that the respondent-election petitioner had made out a case for
declaration that the result of the election in favour of the returned
candidate was void under Section 100(1)(a) of the 1951 Act. Having reached
our conclusion on above said basis, it is not necessary to go into the
question raised on behalf of the respondent-election petitioner that
failure to produce the copy of the electoral roll of the constituency in
which a candidate is a voter or a certified copy thereof, by itself, would
amount to a proof of lack of/absence of qualification under Section 5 of
the 1951 Act. All that would be necessary for us to say in this regard is
that any such view would not be consistent with the legislative intent
expressed by the enactment of two separate and specific provisions
contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act.
16. Though a number of precedents have been cited on behalf of the
respondent-election petitioner to sustain the arguments advanced, it will
not be necessary for us to take any specific note of the principles of law
laid down in any of the said cases inasmuch as all the said cases relate to
rejection of nominations on account of failure to comply with the
provisions of Section 33(5) of the Act of 1951 which is not in issue before
us in the present appeal.
17. Consequently and for the aforesaid reasons, we cannot sustain the
order of the High Court. Accordingly, the same is set aside and the appeal
is allowed. The election of the appellant-returned candidate is declared
to be valid in law.
..............,J.
(RANJAN GOGOI)
...............,J.
(PRAFULLA C. PANT)
NEW DELHI
OCTOBER 03, 2016