SRI MAIREMBAM PRITHVIRAJ @ PRITHIBIRAJ SINGH Vs. SHRI PUKHREM SHARATCHANDRA SINGH
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2649 of 2016, Judgment Date: Oct 28, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2649 of 2016
SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH .... Appellant(s)
Versus
SHRI PUKHREM SHARATCHANDRA SINGH ….Respondent(s)
With
CIVIL APPEAL No. 2829 of 2016
PUKHREM SHARATCHANDRA SINGH
.... Appellant(s)
Versus
SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH
….Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
CIVIL APPEAL No. 2649 of 2016
The Appellant has filed this appeal aggrieved by the judgment of the
High Court of Manipur at Imphal by which his election to the Manipur
Legislative Assembly from Moirang Assembly constituency was declared as
void.
A Notification was issued for election to the 10th Manipur Legislative
Assembly on 04.01.2012. The Appellant belonging to the Nationalist
Congress Party (NCP) and the Respondent who was sponsored by the Indian
National Congress (INC) filed their nominations within the time prescribed.
There was no other nomination filed. The Respondent objected to the
nomination of the Appellant at the time of scrutiny on the ground that a
false declaration relating to educational qualification was made by the
Appellant. The Returning Officer directed the Appellant to submit
documents in proof of his educational qualification as declared in the
affidavit filed under Form 26. The Appellant failed to produce any
document to prove his educational qualification in spite of which the
Returning Officer accepted the nomination of the Appellant. Polling took
place on 28.01.2012 and the counting of votes was held on 06.03.2012. The
result was declared on the same day. The Appellant secured 14,521 votes
and the Respondent secured 13,363 votes. The Appellant was declared
elected as MLA, Moirang Constituency.
The Respondent challenged the election of the Appellant by filing an
election petition in the Guwahati High Court seeking a declaration that the
Appellant’s election was null and void, that the Respondent should be
declared as duly elected and that a criminal proceeding should be directed
to be initiated against the Appellant under Section 125-A and 127 of the
Representation of the People Act, 1951 (hereinafter referred to as ‘the
Act’). Apart from the ground of improper acceptance of nomination, the
Respondent also alleged corrupt practices against the Appellant.
The Appellant denied the allegation of false declaration. According to the
Appellant, the declaration made by him that he passed Master of Business
Administration (MBA) in 2004 from Mysore University was a clerical error.
The Respondent abandoned the allegation of corrupt practices and other
electoral malpractices during the trial of the election petition in the
High Court. The High Court framed six issues which are as follows:
“Whether the Returning Officer of 27th Moirang AC has illegally accepted
the nomination paper of the respondent or not?
Whether the election of the respondent had been materially affected by the
acceptance of the nomination paper of the respondent by the R.O. of 27th
Moirang A/C or not?
Whether the respondent had filed false affidavit in respect of the highest
education qualification in the Form, in which the respondent had mentioned
“MBA Mysore University” or whether it was merely a clerical error?
Whether the petition lacks material facts or not?
Whether the election petition is liable to be dismissed for not putting the
words “attested to be true copy of the petition” on each and every page of
the petition by the petitioner himself or not; or on any of the defects
raised by the respondent in his written statement?
Whether the petitioner is entitled to the relief claimed in the writ
petition?”
Issue No. 5 pertains to attestation of the petition not being made
properly. The objection raised by the Appellant to the maintainability of
the election petition was that only the front page of the election petition
had the words “Attested to be true copy.” Issue No. 5 was answered in
favour of the Respondent. The High Court considered the main controversy
pertaining to the filing of false affidavit regarding the educational
qualification by the Appellant in a detailed manner. There is no doubt
that the Appellant filed Form 26 in which he mentioned his educational
qualification as MBA from Mysore University in 2004. After careful
consideration of the material on record and various judgments cited by the
parties, the High Court concluded that the declaration made by the
Appellant in Form 26 about his educational qualification as MBA from Mysore
University was false. The plea of the Appellant that the defect in Form
26 was due to a clerical error was rejected. The contention of the
Appellant that providing wrong information about the educational
qualification was not a defect of substantial character was also rejected.
The Appellant contended that the Respondent failed to plead and prove that
the result was ‘materially affected’ as required under Section 100 (1) (d)
of the Act. The High Court did not accept the said contention on the
ground that there were only two candidates in the fray in which case it was
not necessary to prove that the result of election of the returned
candidate was materially affected. The High Court further held if it is
found that the Appellant’s nomination was improperly accepted, the result
of his election stood automatically affected materially. The High Court
on the basis of the above reasons declared the election of the Appellant as
void. The Appellant has filed this appeal challenging the same.
We have heard Mr. V. Giri, learned Senior Counsel for the Appellant and Ms.
Meenakshi Arora, learned Senior Counsel for the Respondent. Mr. Giri
submitted that the declaration pertaining to the educational qualification
of the Appellant was merely a clerical error and cannot be termed as a
false declaration. In any event, the declaration of educational
qualification is not a defect of substantial nature warranting rejection of
his nomination. Mr. Giri also submitted that the election petition was
filed under Section 100 (1) (d) (i) and (iv) of the Act. He stated that
there is neither pleading nor proof in the election petition that the
improper acceptance of the Appellant’s nomination had materially affected
the result. According to Mr. Giri, the Appellant’s election cannot be set
aside on the ground of improper acceptance of his nomination without the
requirement of Section 100 (1) (d) of the Act being satisfied. He
referred to Durai Muthuswami v. N. Nachiappan and Ors. reported in 1973 (2)
SCC 45 and submitted that the said judgment should be restricted to the
facts of that case. He also attempted to distinguish the said judgment as
not applicable to the facts of this case by submitting that it was a case
of disqualification under Section 9-A of the Act. He further submitted
that the said case was one filed under Section 100 (1) (a) of the Act. He
contended that there is no need for pleading or proving that the result was
materially affected if the election is challenged under Section 100 (1) (a)
to (c) whereas it is compulsory in a petition filed under Section 100 (1)
(d).
Ms. Meenakshi Arora, learned Senior Counsel, argued that the Respondent
pleaded in the election petition that the result of the election was
materially affected by the improper acceptance of the nomination of the
Appellant. She took us through the pleadings and evidence, both oral and
documentary, to contend that the declaration of educational qualification
by the Appellant was not a mistake. She submitted that the same
declaration was made by the Appellant even when he contested the earlier
election to the Legislative Assembly in 2008. She also highlighted the
contradictory stands relating to the declaration taken by the Appellant.
She submitted that it was not necessary to show that the result of the
election was materially affected when there were only two contesting
candidates for one seat. She relied upon the judgment in Durai Muthuswami
(supra) which according to her, was approved in Jagjit Singh v. Dharam Pal
Singh, reported in 1995 Supp (1) SCC 422. She further relied upon Union
of India v. Association for Democratic Reforms, reported in 2002 (5) SCC
294, People’s Union for Civil Liberties (PUCL) v. Union of India, reported
in 2003 (4) SCC 399, Kisan Shankar Kathore v. Arun Dattatray Sawant
reported in 2014 (14) SCC 162 and Resurgence India v. Election Commission
of India and Anr. reported in 2014 (14) SCC 189 in support of her
submission that a voter has a right to know about the educational
qualification of the candidate and any false or mis-declaration would
result in rejection of the nomination of the candidate. Ms. Meenakshi Arora
also cited Hari Krishna Lal v. Babu Lal Marandi reported in 2003 (8) SCC
613 to contend that the false declaration relating to the educational
qualification of a candidate is a defect of substantial character.
Two issues fall for our consideration in this appeal which are:
Whether a false declaration relating to the educational qualification is a
defect of substantial character warranting rejection of a nomination?
Whether it is necessary to plead and prove that the result was materially
affected when the nomination of the returned candidate was found to have
been improperly accepted, moreso, when there are only two candidates
contesting the election?
Chapter I of Part V of the Act deals with the nomination of candidates.
Section 33 of the Act provides for presentation of nomination paper and
requirements of a valid nomination. A nomination paper complete in the
prescribed form, signed by a candidate and by an elector of the
constituency as proposer should be delivered to the Returning Officer
within the prescribed period. Section 33-A which was inserted by Act 72
of 2002 with effect from 24.08.2002 contemplates that a candidate has to
provide additional information, apart from the information provided by him
under Section 33 (1). The information mentioned in Section 33-A relates to
the criminal antecedents of a candidate. Section 36 deals with scrutiny of
nomination. Section 36(4) which is relevant for adjudication of this case
is as follows:
“36. Scrutiny of nomination. – (4) The Returning Officer shall not reject
any nomination paper on the ground of any defect which is not of a
substantial character.”
Rule 4 (A) of the Conduct of Election Rules, 1961 which was inserted with
effect from 03.09.2002 reads as under:
“[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
subsection (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.]”
A candidate has to file an affidavit along with his nomination paper as
prescribed in Form 26 in which one of the columns pertains to the
educational qualification. Grounds for declaring the election to be void
are provided in Section 100 of the Act which is as under:
“100. Grounds for declaring election to be void.—
[(1) Subject to the provisions of sub-section (2) if 3 [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 9 [or the Government of Union Territories Act,
1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with the consent of a returned
candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned
candidate 1 [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.]
[(2)] If in the opinion of 2 [the High Court], a returned candidate has
been guilty by an agent, other than his election agent, of any corrupt
practice 4 *** but 2 [the High Court] is satisfied—
(a) that no such corrupt practice was committed at the election by the
candidate or his election agent, and every such corrupt practice was
committed contrary to the orders, and 5 [without the consent], of the
candidate or his election agent;
6 * * * * *
(c) that the candidate and his election agent took all reasonable means
for preventing the commission of corrupt 7 *** practices at the election;
and
(d) that in all other respects the election was free from any corrupt 7
*** practice on the part of the candidate or any of his agents,
then 2 [the High Court] may decide that the election of the returned
candidate is not void.”
Section 125-A prescribes penalty for filing false affidavit which is
reproduced as under:
“[125A. Penalty for filing false affidavit, etc.—
A candidate who himself or through his proposer, with intent to be elected
in an election,—
fails to furnish information relating to sub-section (1) of section 33A; or
give false information which he knows or has reason to believe to be false;
or
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 33A, 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.]”
Sir Winston Churchill underlining the importance of a voter in a democratic
form of Government stated as follows:
“At the bottom of all tributes paid to democracy is the little
man, walking into a little booth, with a little pencil, making a little
cross on a little bit of paper — no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of the
point.”
In Union of India v. Association for Democratic Reforms (supra) this Court
held that the voter has a fundamental right to information about the
contesting candidates. The voter has the choice to decide whether he
should cast a vote in favour of a person involved in a criminal case. He
also has a right to decide whether holding of an educational qualification
or holding of property is relevant for electing a person to be his
representative. Pursuant to the judgment in Union of India v. Association
for Democratic Reforms (supra) Section 33-A was inserted in the
Representation of the People Act providing for right to additional
information by an Ordinance. The challenge to the said Ordinance was
dealt with by this Court in People’s Union for Civil Liberties (PUCL) v.
Union of India (supra) in which it was held as follows:
“78. What emerges from the above discussion can be summarised thus:
(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.”
It is relevant to mention that the Election Commission of India issued a
press note on 28.06.2002 in which there was a reference to the judgment of
this Court in Union of India v. Association for Democratic Reforms in which
it was held that information on five aspects has to be provided to the
voter. One of the five aspects pertains to the educational qualification
of the candidates. An order was issued by the Election Commission of India
on 28.06.2002 directing that full and complete information relating to the
five aspects which were mentioned in the judgment has to be furnished.
Providing incomplete information or suppression of material information on
any of the five aspects was to be treated as a defect of substantial
character by the Returning Officers.
In Resurgence India v. Election Commission of India and Anr. (supra) this
Court held that every candidate is obligated to file an affidavit with
relevant information with regard to their criminal antecedents, assets and
liabilities and educational qualification. The fundamental right under
Article 19 (1) (a) of the voter was reiterated in the said judgment and it
was held that filing of affidavit with blank particulars would render the
affidavit as nugatory. In Kisan Shankar Kathore v. Arun Dattatray Sawant
reported in 2014 (14) SCC page 162 this Court considered the question as to
whether it was incumbent upon the Appellant to have disclose the
information sought for in the nomination form and whether the non-
disclosure thereof render the nomination invalid and void. It was held
that non-furnishing of the required information would amount to
suppression/non-disclosure.
It is clear from the law laid down by this Court as stated above that every
voter has a fundamental right to know about the educational qualification
of a candidate. It is also clear from the provisions of the Act, Rules
and Form 26 that there is a duty cast on the candidates to give correct
information about their educational qualifications. It is not in dispute
that the Appellant did not study MBA in the Mysore University. It is the
case of the Appellant that reference to MBA from Mysore University was a
clerical error. It was contended by the Appellant that he always thought
of doing MBA by correspondence course from Mysore University. But,
actually he did not do the course. The question which has to be decided is
whether the declaration given by him in Form 26 would amount to a defect of
substantial nature warranting rejection of his nomination. Section 36 (4)
of the Act mandates that the Returning Officer shall not reject a
nomination paper on the ground of any defect which is not of a substantial
character. The declaration made by the Appellant in Form 26, filed in 2012
is not a clerical error as contended by him. The Appellant contested
election to the same constituency in 2008 and in the affidavit filed by him
in Form 26 he declared that he passed MBA from Mysore University in 2004.
In the affidavit filed by him in this election petition by way of
examination-in-chief, the Appellant stated that his nomination paper and
the enclosed affidavit were prepared and filed by his counsel Chakpam
Bimolchandra Singh on the instructions of his agent Ph. Shamu Singh. He
also stated that his counsel filled the prescribed affidavit in his own
hand-writing. The Appellant also stated that he signed the affidavit
without reading the contents and he came to know about the error only when
the Respondent raised his objection to the nomination. The Appellant
further stated that he was working in Projeon, Infosys Company and IBM till
2007 and because of his job many local friends and elders thought that he
was an MBA degree-holder. His election agent also thought that he was
holding an MBA degree due to which he instructed the Advocate Chakpam
Bimolchandra Singh to fill up column 9 of the affidavit by stating that the
Appellant is an MBA degree-holder. In his cross-examination, the
Appellant gave evasive replies to the questions relating to his educational
qualification. He stated that he does not remember whether he had
undergone MBA from Mysore University and he does not remember whether he
possesses MBA degree. Chakpam Bimolchandra Singh who was examined as DW-3
in his cross-examination denied having filled up the entries in Form 26.
He stated that he entered the educational qualifications of the Appellant
on the basis of instructions given by the election agent Shamu Singh. He
also stated that he was not present before the Oath Commissioner when the
Appellant signed the affidavit.
The contention of the Appellant that the declaration relating to his
educational qualification in the affidavit is a clerical error cannot be
accepted. It is not an error committed once. Since 2008, the Appellant
was making the statement that he has an MBA degree. The information
provided by him in the affidavit filed in Form 26 would amount to a false
declaration. The said false declaration cannot be said to be a defect
which is not substantial. He was given an opportunity by the Returning
Officer to produce the relevant document in support of his declaration. At
least at that point of time he should have informed the Returning Officer
that an error crept into the declaration. He did not do so. The false
declaration relating to his educational qualification cannot be stated to
be not of a substantial character. It is no more res integra that every
candidate has to disclose his educational qualification to subserve the
right to information of the voter. Having made a false declaration
relating to his educational qualification, the Appellant cannot be
permitted to contend that the declaration is not of a substantial
character. For the reasons stated supra, we uphold the findings recorded
by the High Court that the false declaration relating to the educational
qualification made by the Appellant is substantial in nature.
Having answered the first question against the Appellant, we proceed now to
deal with the next point. Section 100 (1) (a) to (c) deals with
disqualification, corrupt practices and improper rejection of nominations
respectively which are grounds for setting aside the election. The sine
qua non for setting aside an election under Section 100 (1) (d) is that the
result of the election, in so far as it concerns a returned candidate, has
been materially affected. The contention of Mr. Giri, learned Senior
Counsel for the Appellant is that even if it is held that the nomination of
the appellant was improperly accepted, his election cannot be set aside in
the absence of any pleading or proof that the result was materially
affected by the improper acceptance of the nomination. He relied upon
Magani Lal Mandal v. Bishnu Deo Bhandari, reported in 2012 (3) SCC page 314
to contend that every defect cannot be a ground for setting aside an
election under Section 100 (1) (d) without further proof that it had
materially affected the result of the returned candidate. He also referred
to Shambhu Prasad Sharma v. Charandas Mahant and Ors. reported in 2012 (11)
SCC page 390 in which it was held as follows:
“20. Coming to the allegation that other candidates had also not submitted
affidavits in proper format, rendering the acceptance of their nomination
papers improper, we need to point out that the appellant was required to
not only allege material facts relevant to such improper acceptance, but
further assert that the election of the returned candidate had been
materially affected by such acceptance. There is no such assertion in the
election petition. Mere improper acceptance assuming that any such improper
acceptance was supported by assertion of material facts by the appellant-
petitioner, would not disclose a cause of action to call for trial of the
election petition on merit unless the same is alleged to have materially
affected the result of the returned candidate.”
There is no dispute that an election cannot be set aside on the ground of
improper acceptance of any nomination without a pleading and proof that the
result of the returned candidate was materially affected. The point to be
considered is whether the law as laid down by this Court relating to the
pleading and proof of the fact of the result of the returned candidate
being materially affected applies to a case where the nomination of the
returned candidate is declared to have been improperly accepted. A
situation similar to the facts of this case arose for consideration of this
Court in Durai Muthuswami’s case. It is necessary to deal with this case
in detail as the Counsel for the Appellant submitted that the said judgment
is not applicable to the facts of the present case and that finding in the
said case have to be treated as obiter.
The facts, in brief, of the case of Durai Muthuswami are that the
Petitioner in the election petition contested in the election to the Tamil
Nadu Legislative Assembly from Sankarapuram constituency. He challenged
the election of the First Respondent on the grounds of improper acceptance
of nomination of the returned candidate, rejection of 101 postal ballot
papers, ineligible persons permitted to vote, voting in the name of dead
persons and double voting. The High Court dismissed the election petition
by holding that the Petitioner failed to allege and prove that the result
of the election was materially affected by the improper acceptance of the
nomination of the First Respondent as required by Section 100 (1) (d) of
the Act. The Civil Appeal filed by the Petitioner therein was allowed by
this Court in Durai Muthuswami (supra) in which it was held as follows:
“3. Before dealing with the question whether the learned Judge was right
in holding that he could not go into the question whether the 1st
respondent's nomination has been improperly accepted because there was no
allegation in the election petition that the election had been materially
affected as a result of such improper acceptance, we may look into the
relevant provisions of law. Under Section 81 of the Representation of the
People Act, 1951 an election petition calling in question any election may
be presented on one or more of the grounds specified in sub-section (1) of
Section 100 and Section 101. It is not necessary to refer to the rest of
the section. Under Section 83(1) (a), insofar as it is necessary for the
purpose of this case, an election petition shall contain a concise
statement of the material facts on which the petitioner relies. Under
Section 100(1) 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 ….
(b)-(c) * * *
(d) that the result of the election, insofar as it concerns a returned
candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
(ii)-(iii) * * *
the High Court shall declare the election of the returned candidate to be
void. Therefore, what Section 100 requires is that the High Court before it
declares the election of a returned candidate is void should be of opinion
that the result of the election insofar as it concerns a returned candidate
has been materially affected by the improper acceptance of any nomination.
Under Section 83 all that was necessary was a concise statement of the
material facts on which the petitioner relies. That the appellant in this
case has done. He has also stated that the election is void because of the
improper acceptance of the 1st respondent's nomination and the facts given
showed that the 1st respondent was suffering from a disqualification which
will fall under Section 9-A. That was why it was called improper
acceptance. We do not consider that in the circumstances of this case it
was necessary for the petitioner to have also further alleged that the
result of the election insofar as it concerns the returned candidate has
been materially affected by the improper acceptance of the 1st respondent's
nomination. That is the obvious conclusion to be drawn from the
circumstances of this case. There was only one seat to be filled and there
were only two contesting candidates. If the allegation that the 1st
respondent's nomination has been improperly accepted is accepted the
conclusion that would follow is that the appellant would have been elected
as he was the only candidate validly nominated. There can be, therefore, no
dispute that the result of the election insofar as it concerns the returned
candidate has been materially affected by the improper acceptance of his
nomination because but for such improper acceptance he would not have been
able to stand for the election or be declared to be elected. The petitioner
had also alleged that the election was void because of the improper
acceptance of the 1st respondent's nomination. In the case of election to a
single-member constituency if there are more than two candidates and the
nomination of one of the defeated candidates had been improperly accepted
the question might arise as to whether the result of the election of the
returned candidate had been materially affected by such improper reception.
In such a case the question would arise as to what would have happened to
the votes which had been cast in favour of the defeated candidate whose
nomination had been improperly accepted if it had not been accepted. In
that case it would be necessary for the person challenging the election not
merely to allege but also to prove that the result of the election had been
materially affected by the improper acceptance of the nomination of the
other defeated candidate. Unless he succeeds in proving that if the votes
cast in favour of the candidate whose nomination had been improperly
accepted would have gone in the petitioner's favour and he would have got a
majority he cannot succeed in his election petition. Section 100(1)(d)(i)
deals with such a contingency. It is not intended to provide a convenient
technical plea in a case like this where there can be no dispute at all
about the election being materially affected by the acceptance of the
improper nomination. “Materially affected” is not a formula that has got to
be specified but it is an essential requirement that is contemplated in
this section. Law does not contemplate a mere repetition of a formula. The
learned Judge has failed to notice the distinction between a ground on
which an election can be declared to be void and the allegations that are
necessary in an election petition in respect of such a ground. The
petitioner had stated the ground on which the 1st respondent's election
should be declared to be void. He had also given the material facts as
required under Section 83(1)(a). We are, therefore, of opinion that the
learned Judge erred in holding that it was not competent for him to go into
the question whether the 1st respondent's nomination had been improperly
accepted.” (Underlining ours)
It is clear from the above judgment that there is a difference between the
improper acceptance of a nomination of a returned candidate and the
improper acceptance of nomination of any other candidate. There is also a
difference between cases where there are only two candidates in the fray
and a situation where there are more than two candidates contesting the
election. If the nomination of a candidate other than the returned
candidate is found to have been improperly accepted, it is essential that
the election Petitioner has to plead and prove that the votes polled in
favour of such candidate would have been polled in his favour. On the
other hand, if the improper acceptance of nomination is of the returned
candidate, there is no necessity of proof that the election has been
materially affected as the returned candidate would not have been able to
contest the election if his nomination was not accepted. It is not
necessary for the Respondent to prove that result of the election in so far
as it concerns the returned candidate has been materially affected by the
improper acceptance of his nomination as there were only two candidates
contesting the election and if the Appellant’s nomination is declared to
have been improperly accepted, his election would have to be set aside
without any further enquiry and the only candidate left in the fray is
entitled to be declared elected. The judgment of this Court in Durai
Muthuswami (supra) was referred to in Jagjit Singh v. Dharam Pal Singh,
1995 Supp (1) SCC 422 page 429 in which it was held as follows:
“21. The trial Judge has held that since there is no averment in the
petition that the result of the election was materially affected by
improper rejection or acceptance of votes, it is devoid of cause of action.
We are unable to agree that the absence of such an averment in the facts of
this case is fatal. As pointed out by this Court, there may be cases where
the obvious conclusion to be drawn from the circumstances is that the
result of the election has been materially affected and that Section
100(1)(d) of the Act is not intended to provide a convenient technical plea
in a case where there can be no dispute at all about the result of the
election being materially affected by the alleged infirmity. (See: Durai
Muthuswami v. N. Nachiappan [(1973) 2 SCC 45 : (1974) 1 SCR 40] .) In the
present case, the appellant in the election petition has stated that he has
lost by a margin of 80 votes only. From the various averments in the
election petition it was evident that the number of valid votes of the
appellant which are alleged to have been improperly rejected is much more
than 80. From the averments contained in the election petition it is thus
obvious if the appellant succeeds in establishing his case as set out in
the election petition the result of this election, insofar as it concerns
the returned candidate, would be materially affected.”
It was held by this Court in Vashist Narain Sharma v. Dev Chandra, reported
in 1955 (1) SCR 509 as under:
“9. The learned counsel for the respondents concedes that the burden of
proving that the improper acceptance of a nomination has materially
affected the result of the election lies upon the petitioner but he argues
that the question can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had
secured less votes than the difference between the returned candidate and
the candidate securing the next highest number of votes,
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly accepted is the
returned candidate himself.
It is agreed that in the first case the result of the election is not
materially affected because if all the wasted votes are added to the votes
of the candidate securing the highest votes, it will make no difference to
the result and the returned candidate will retain the seat. In the other
two cases it is contended that the result is materially affected. So far as
the third case is concerned it may be readily conceded that such would be
the conclusion. But we are not prepared to hold that the mere fact that the
wasted votes are greater than the margin of votes between the returned
candidate and the candidate securing the next highest number of votes must
lead to the necessary inference that the result of the election has been
materially affected. That is a matter which has to be proved and the onus
of proving it lies upon the petitioner. It will not do merely to say that
all or a majority of the wasted votes might have gone to the next highest
candidate. The casting of votes at an election depends upon a variety of
factors and it is not possible for any one to predicate how many or which
proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is
confronted with a difficult situation, it is not possible to relieve him of
the duty imposed upon him by Section 100(1)(c) and hold without evidence
that the duty has been discharged. Should the petitioner fail to adduce
satisfactory evidence to enable the Court to find in his favour on this
point, the inevitable result would be that the Tribunal would not interfere
in his favour and would allow the election to stand.” (Underlining ours).
This Court in Kisan Shankar Kathore v. Arun Dattatray Sawant (supra) dealt
with a situation similar to that of this case. In that case, the election
of the returned candidate was successfully challenged on the ground of non-
disclosure of material information. The appeal filed by the returned
candidate was dismissed by this Court by observing as follows:
“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.”
Mere finding that there has been an improper acceptance of the nomination
is not sufficient for a declaration that the election is void under Section
100 (1) (d). There has to be further pleading and proof that the result of
the election of the returned candidate was materially affected. But,
there would be no necessity of any proof in the event of the nomination of
a returned candidate being declared as having been improperly accepted,
especially in a case where there are only two candidates in the fray. If
the returned candidate’s nomination is declared to have been improperly
accepted it would mean that he could not have contested the election and
that the result of the election of the returned candidate was materially
affected need not be proved further. We do not find substance in the
submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not
applicable to the facts of this case. The submission that Durai Muthuswami
is a case of disqualification under Section 9-A of the Act and, so, it is
not applicable to the facts of this case is also not correct. As stated
supra, the election petition in that case was rejected on the ground of non-
compliance of Section 100 (1) (d). The said judgment squarely applies to
this case on all fours. We also do not find force in the submission that
the Act has to be strictly construed and that the election cannot be
declared to be void under Section 100 (1) (d) without pleading and proof
that the result of the election was materially affected. There is no
requirement to prove that the result of the election of the returned
candidate is materially affected once his nomination is declared to have
been improperly accepted.
For the aforementioned reasons, the Civil Appeal is dismissed. No costs.
Civil Appeal No. 2829 of 2016
This appeal is filed by the Petitioner in the election petition
challenging that part of the judgment dated 29.02.2016 of the High Court
Manipur at Imphal, by which the relief that he should be declared to be
elected was rejected. The Appellant contested the election as a candidate
of the Nationalist Congress Party (NCP). Respondent No.1 was declared to
have been elected on 28.01.2012. The election of the First Respondent was
set aside by the High Court in the election petition filed by the
Appellant. The Appellant also sought for a relief that he should be
declared to have been elected. Such relief was rejected by the High Court.
Hence, this appeal.
After the result of the election was declared on 28.01.2012, the Appellant
resigned from NCP and joined Bhartiya Janta Party (BJP). To a question
posed by the Court during the recording of his evidence, the Appellant
stated that he tendered resignation from NCP in the latter part of 2013,
that he joined BJP and he continued to be a member of the BJP. In January,
2016, the Appellant filed an application for amendment to the election
petition. He intended to insert additional submissions relating to his
expulsion from NCP on 23.12.2013 and the representation made by him to the
President NCP Manipur to cancel the expulsion order. He also wanted to
bring on record the fact that his enrolment to the membership of BJP was
rejected on 18.01.2016. He further stated in the application that the
order of expulsion by the NCP was revoked by an order dated 21.01.2016.
The arguments in the election petition filed by the Appellant were
concluded on 25.02.2016. The High Court recorded a finding in the impugned
judgment that all the pending miscellaneous applications were disposed of
with the consent of both sides and the election petition was to be
adjudicated on the basis of existing material on record. As the
miscellaneous application filed by the Appellant was not considered, the
High Court decided the matter on the basis of the material on record which
clearly showed that the Appellant resigned from NCP and joined BJP. After
a careful consideration of the material on record, the High Court refused
to grant the declaration as sought by the Appellant. The High Court held
that having joined BJP, the Appellant was not entitled for a declaration as
he contested the election in 2012 on behalf of NCP. The High Court
highlighted the fact that the Appellant will be an MLA belonging to BJP, if
declared elected after having contested the election on behalf of the NCP.
Taking into account the spirit of law as expressed in paragraph no. 2 of
the 10th Schedule of the Constitution of India the High Court did not grant
the relief sought by the Appellant that he should be declared elected.
Ms. Meenakshi Arora, learned Senior Counsel appearing for the Appellant
submitted that the 10th Schedule to the Constitution is not applicable to
adjudication of an election petition. She relied upon Section 53 (2) of
the Act to contend that the Appellant should be declared as duly elected as
he was the only person remaining in the fray after the election of
respondent/returned candidate was declared void. Section 101 of the Act
provides for declaration of the Petitioner to have been duly elected if the
High Court is of the opinion that the Petitioner received majority of the
valid votes.
According to Section 80 (A) of the Act, the High Court will have the
jurisdiction to try an election petition. It is well settled law that the
High Court hearing an election petition is not an ‘authority’ and that it
remains the High Court while trying an election petition under the Act.
(See T. Deen Dayal v. High Court of A.P., 1997 (7) SCC 535 at page 540.
This Court in Hari Shanker Jain v. Sonia Gandhi, 2001 (8) SCC 233 at page
244 upheld the decision of a Full Bench of the Rajasthan High Court wherein
it was decided that the jurisdiction of the High Court to try an election
petition is not by way of constituting a special jurisdiction and
conferring it upon the High Court. It is an extension of the original
jurisdiction of the High Court to hear and decide the election disputes.
It is clear from the above judgments of this Court that the inherent power
of the High Court is not taken away when the election disputes are
adjudicated. Section 53 (2) is a power conferred on the Returning Officer
to declare a candidate elected when the number of candidates is equal to
the number of seats to be filled. The power of the High Court is not
fettered by Section 53 (2). The High Court has taken into consideration an
anomalous situation that would arise by a candidate belonging to one party
being declared elected after having crossed the floor. We are in agreement
with the High Court and we do not intend to interfere with the discretion
exercised by the High Court.
For the aforesaid reasons, the Civil Appeal is dismissed. No order as to
costs.
.…............................J.
[ANIL R. DAVE]
................................J.
[L. NAGESWARA RAO]
New Delhi,
October 28, 2016