47. The cause of action is a bundle of all primary facts, which, if proved, would entitle to a relief claimed in the petition.
Shri Manohar, the learned Senior Advocate does not dispute the position of law that for the purpose of deciding the application under Order VII Rule 11(a) of the Code of Civil Procedure, the court has to proceed on the assumption that the contents of the petition are true and correct. What are the material facts, would depend upon the facts and circumstances of each case. These are all the principles of law laid down in the decisions of the Apex Court in cases of (i) Charan Dass v. Surinder Kumar and others, reported in 1995 Supp.(3) SCC 318, (ii) Anil Vasudeo Salgaonkar v. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310, and
(iii) Jitu Patnaik v. Sanatan Mohakud and others, reported in (2012) 4 SCC 194, relied upon by Shri Manohar.
Coming to the Item No.(iv), it is necessary for the petitioner to plead the material fact that prior to the date of delivery of nomination paper under Section 33(1) of the said Act, the charge/charges were framed against the respondent No.1 in respect of the offences which are not disclosed in Column (5)(i) in the affidavit in Form No.26 by the Court of competent jurisdiction. The date of framing of charge/charges becomes a material fact. Such pleading is significant to make out a case under Section 33-A(1)(i) of the said Act. Shri Manohar is right in urging that in the present case, neither a specific date of framing such charge is pleaded nor the pleading is that the charge was framed prior to the date of delivery of nomination paper by the respondent No.1. Such pleadings are completely absent in the petition.
For the purpose of this application, I proceed on the footing that Column (5)(ii) in Form No.26 is the part and parcel of Section 33-A(1)(i) and (ii) of the said Act and all the undisclosed three cases were required to be disclosed at least in Column (5)(ii) of the affidavit in Form No.26 by the respondent No.1. In order to show such failure to comply, what is required to be pleaded in the petition as a material fact is that the cognizance of the offences in which respondent No.1 is accused, was taken by the Court of competent jurisdiction prior to the date of delivery of nomination paper under Section 33(1) of the said Act.
The date of taking cognizance is a material fact which is also required to be stated in Item (a) in Column (5)(ii) in Form No.26.
It is, therefore, required to be pleaded in the petition, the significance of it being that it raises a presumption about the knowledge of the pending cases to the respondent No.1. There is neither a specific date of taking cognizance pleaded nor the pleading is that the cognizance was taken prior to the date of delivery of nomination paper by the respondent No.1. Such pleadings are completely absent in this petition. Merely because the respondent No.1 is shown to have been released on execution of bail bond of Rs.3000/- on 18-9-2000, that by itself does not mean that prior to the date of delivery of nomination paper, either the case was pending against him or the Court had taken cognizance of the offences alleged against him. The lack of pleading regarding such material facts becomes fatal for the Court to proceed on the trial of the election petition.
Bombay High Court
Satish Mahadeorao Uke vs Devendra Gangadhar Fadnavis And ... on 19 August, 2015
Bench: Ravi K. Deshpande
Civil Application No.993 of 2015 In Election Petition No.1 of 2014
Citation:2016(2) MHLJ639
Citation:2016(2) MHLJ639
1. This election petition is filed challenging the election of the respondent No.1 on the grounds under Section 100(1)(d)(i) and (iv) of the Representation of the People Act, 1951 (for short, "the said Act") for improper acceptance of his nomination paper by the Returning Officer. The substance of the averments made in the election petition is that the respondent No.1 has failed to disclose in his affidavit in Form No.26 submitted alongwith his ep1.14.odt nomination paper delivered under Section 33(1) of the said Act, the information, as required under Section 33-A(1)(i) and (2) of the said Act, in respect of certain offences in which he is accused in a case pending before the Court of competent jurisdiction. The nomination of the respondent No.1 was required to be rejected under Section 36(2)(b) of the said Act and the result of the election of the respondent No.1 has materially affected by such improper acceptance of his nomination, as contemplated under Section 100(1)(d)(i) and (iv) of the said Act.
2. The respondent No.1 has filed his written statement and opposed the claim made by the petitioner. He has also filed an application under Order VII, Rule 11(a) of the Civil Procedure Code for rejection of the petition on the objection that "the present election petition does not contain statement of material facts as to how the result of the election is materially affected, in so far as it concerns the returned candidate. In the absence of these materials facts, the petition does not disclose any cause of ep1.14.odt action". It is also the objection raised that the election petition and the documents annexed are not verified in the manner prescribed by the Code of Civil Procedure.
3. Before proceeding to deal with the controversy in respect of pleading of material facts, the relevant provisions of the Representation of the People Act, 1951 in respect of the nomination of the candidates need to be seen, which are incorporated in Part V of conduct of elections, and Chapter I regarding nomination of candidates therein. Section 30 of the said Act provides for fixing of dates for filing of nomination paper for election of a Member from a Constituency.
Section 32 provides that a person may be nominated as a candidate for election to fill a seat, if he is qualified to be chosen to fill that seat under the provisions of the Constitution and the said Act.
4. Section 33 relates to the presentation of nomination ep1.14.odt paper and requirements for a valid nomination. The provision of Section 33(1) being relevant, is reproduced below :
"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:
... ... ..."
In terms of the aforesaid provision, the nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer, is to be delivered to the Returning Officer. Rule 4 of the Conduct of Elections Rules, 1961 prescribes that every nomination paper presented under Section 33(1) shall be completed in such one of the Forms 2A to 2E, as the case may be. Since the present petition is concerned with the election to the Legislative Assembly of ep1.14.odt Maharashtra, it is governed by Form No.2B.
5. This election petition essentially concerns with the provision of Section 33-A of the said Act, which was introduced by Act No.72 of 2002 with effect from 24-8-2002. The provisions of Section 33-A(1)(i) of the said Act being relevant, are reproduced below :
"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) ... ......
(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)."
ep1.14.odt In terms of the aforesaid provision, a candidate at an election is required to furnish in his nomination paper delivered under sub-section (1) of Section 33, the information as to whether 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. Such information is required to be furnished in the affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1). Rule 4-A of the Conduct of Election Rules, 1961 prescribes that the affidavit shall be in Form No.26.
6. In terms of 36 of the said Act, the nomination paper is to be scrutinized by the Returning Officer.
Section 36(2) provides that the Returning Officer, on the objections filed to any nomination or on his own motion, may hold a summary enquiry in connection thereof.
Sub-sections (2), (3) and (4) of Section 36 being relevant, are ep1.14.odt reproduced below :
"36. Scrutiny of nominations.-- ...
(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 (20 of 1963); or
(b) that there has been a failure to comply with any of the provisions of section 33 orsection 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(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 ep1.14.odt 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."
A nomination can be rejected on several grounds mentioned in Section 36(2)(a) to (c) and clause (b), which is relevant, is that there has been a failure to comply with any of the provisions ofSection 33 or Section 34 of the said Act. Sub-section (3) is in the nature of exception and creates a bar to reject the nomination paper on the ground of any irregularity. Sub-Section (4) provides that the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of a substantial character.
7. The present election petition is filed challenging the election of the respondent No.1 on the grounds mentioned in Section 100(1)(d)(i) and (iv) of the said Act. Section 100(1) of ep1.14.odt the said Act being relevant is reproduced below :
"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 theGovernment 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 by an agent other than his election agent, or
(iii) by the improper reception, refusal or ep1.14.odt 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."
In para 5 of the petition, it is alleged that the respondent No.1 submitted his nomination paper for contesting the Legislative Assembly Election, 2014 from the 52, South-West Nagpur State Legislative Assembly Constituency, Nagpur, and the nomination paper dated 26-9-2014 submitted by the respondent No.1 is annexed to the petition. In para 6, it is stated that along with the nomination paper (Annexure III), the respondent No.1 submitted affidavit dated 26-9-2014 in Form No.26 mentioned criminal cases pending against him and the copy of the affidavit is annexed as Annexure IV. The relevant contents of affidavit in Form No.26, filled in and said to have been delivered by the ep1.14.odt respondent No.1 are reproduced below :
FORM 26 Affidavit to be filed by the candidate along with nomination paper before the returning officer for election to House of People (Name of House) from Constituency PART-A I, Devendra Fadnavis son of Gangadhar Fadnavis aged about 44 years, resident of 276, Dharampeth, Trikoni Park, Nagpur-10 a candidate at the above, election, do hereby solemnly affirm and state on oath as under:-
(1) I am a candidate set up by Bhartiya Janta Paty (2) My name is enrolled in 56-West Nagpur Constituency Maharashtra at Serial No.269 in Part No.229 (3) My contact telephone number is - 0712-2533446 My email ID is - officeofmla@gmail.com and my social media accounts are -
1) Facebook - www.facebook.com/devendra.fadnavis
2) Twitter - www.twitter.com/Dev_Fadnavis
3) Website - www.devendrafadnavis.in (4) ...
(5) I am not accused of any offence(s) punishable with imprisonment for two years or more in pending case(s) in which a charge(s) has been framed by the court(s) of competent jurisdiction.
If the deponent is accused of any such offence(s) he shall furnish ep1.14.odt the following information:-
(i) The following case(s) is/are pending against me in which charges have been framed by the court for an offence punishable with imprisonment for two years or more:-
(a) Case/First Information Report No. FIR No.252/91 P.S. together with complete details of Sitabuldi Nagpur concerned police station/ District/State
(b) Section (s) of the concerned Act(s) and 147, 148, 324 I.P.C. short description of the offence(s) for which charged
(c) Name of Court, Case No. and date of J.M.F.C. No.2 Nagpur, order taking cognizance cognizance taken on 16/07/1991
(d) Court(s) which framed the charge(s) J.M.F.C.No.2 Nagpur
(e) Date(s) on which the charge(s) was/were 01/04/06 framed
(f) Whether all or any of the proceeding(s) No have been stayed by any Court(s) of competent jurisdiction
(ii) The following case(s) is/are pending against me in which cognizance has been taken by the court [other than the cases mentioned in item (i) above] :-
(a) Name of the Court, Case No. P.S. Sitabuldi, J.M.F.C. No.2, and date of order taking Case No.11390/09, Dt.10/08/2009 cognizance Case No.10009/09 Dt.16/07/2009 Case No.164/98, Dt.13/02/1998 Case No.1303/96, Dt.05/10/1996 ep1.14.odt Case No.573/93, Dt.20/05/1993 Case No.219/98, Dt.26/02/1998 Case No.962/09, Dt.21/01/2009 Case No.18282/06 Dt.21/09/2006
(b) The details of cases where the Section 135 B.P. At 143, 147,148, court has taken cognizance, 323 IPC, 143, 427, IPC, section (s) of the Act(s) and all cases are registered for description of the offence(s) for agitations. which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if any) filed against the above order(s)
(a) Name of the Court, Case No. P.S. Sadar, J.M.F.C. No.6, and date of order taking Case No.28/04, Dt.13/02/2004 cognizance Case No.13871/08 Dt.22/09/2008 Case No.14170/09, Dt.24/09/2009
(b) The details of cases where the Section/143, 147,148,323, 427, IPC, court has taken cognizance, 135, BP.
section (s) of the Act(s) and All cases are registered for description of the offence(s) for agitations which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if any) filed against the above order(s)
(a) Name of the Court, Case No. P.S. Dhantoli, J.M.F.C.No.2, ep1.14.odt and date of order taking Case No.5652/09, Dt.25/04/2009 cognizance Case No.945/2000 Dt.15/03/2000
(b) The details of cases where the Section/188, 171 (g 34), IPC, 135, court has taken cognizance, B.P.
section (s) of the Act(s) and all cases are registered for description of the offence(s) for agitations.
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Ganeshpeth, J.M.F.C.No.1, and date of order taking Case No.14315/09, Dt.29/09/2009 cognizance Case No.4240/10 Dt.05/05/2010
(b) The details of cases where the Section/3,4, 135, B.P. court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.
description of the offence(s) for which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if any) filed against the above order(s)
(a) Name of the Court, Case No. P.S. Ambazari, C.J.M.
and date of order taking Case No.331/05, Dt.27/04/2005 cognizance Case No.333/05 Dt.27/06/2005
(b) The details of cases where the Section/188 IPC, court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.
ep1.14.odt
description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Koradi, J.M.F.C.No.6, and date of order taking Case No.2815/09, Dt.04/03/2009 cognizance
(b) The details of cases where the Section/188,IPC, court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.
description of the offence(s) for which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if any) filed against the above order(s)
(a) Name of the Court, Case No. P.S. Kotwali, J.M.F.C.No.8, and date of order taking Case No.427/99, Dt.13/08/2009 cognizance
(b) The details of cases where the Section/134, 135, B.P. Act court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.
description of the offence(s) for
which cognizance taken
(c) Details of Appeal(s)/ N.A.
Applications for revision (if
ep1.14.odt
any) filed against the above
order(s)
(a) Name of the Court, Case No. P.S. Wadi, J.M.F.C.No.8, and date of order taking Case No.305/99, Dt.30/09/1999 cognizance Case No.307/99, Dt.08/10/1999
(b) The details of cases where the Section/188, 134, 135, IPC, court has taken cognizance, all cases are registered for section (s) of the Act(s) and agitations.
description of the offence(s) for which cognizance taken
(c) Details of Appeal(s)/ Applications for revision (if N.A.
any) filed against the above order(s) (6) I have not been convicted of an offence(s) (other than any offence(s) referred to in sub-section (1) or sub-section (2) or covered in sub-section (3), ofSection 8 of the Representation of the People Act, 1951 (43 of 1951) and sentenced to imprisonment for one year or more.
If the deponent is convicted and punishable as aforesaid, he shall furnish the following information:
In the following cases, I have convicted and sentenced to imprisonment by a court of law:
(a) The details of cases where the N.A.
court has taken cognizance, section
(s) of the Act(s) and description of
the offence(s) for which convicted
(b) Name of the Court(s), Case No. and N.A.
ep1.14.odt
date(s) of order(s)
(c) Punishment imposed N.A.
(d) Whether any appeal was/has been N.A.
filed against the conviction order, if
so, details and the present status of
the appeal
9. In para 7, it is alleged that the petitioner searched the information regarding the pending criminal matters against the respondent No.1 and verified it from the official website of District Court, Nagpur. While searching the information, the petitioner came to know about the two criminal matters, which are not mentioned by the respondent No.1 in his affidavit in Form No.26 submitted along with his nomination paper. It is stated in para 7 that the respondent No.1 has concealed the information about filing of criminal cases as under :
"i) Regular Criminal Case No.343/2003 - Madanlal Parate vs. Shri Hastak & others pending before the 21 st Jt. Civil Judge, Junior Division and Judicial Magistrate First Class, Nagpur (Corporation Court No.2); and ep1.14.odt
ii) Summary Criminal Case No.231/1996 -
Madanlal Parate vs. Devendra Fadnavis pending before the 15th Civil Judge, Junior Division and Judicial Magistrate First Class, Nagpur (JMFC Court No.6)."
The petitioner has annexed the copies of status of the aforesaid cases claims to have obtained from the District Court's website as Annexures V and VI, involving the respondent No.1.
10. In para 9 of the petition, the petitioner states that in Regular Criminal Case No.343 of 2003 (earlier Private Criminal Complaint No.125 of 1998), the respondent No.1 is accused No.4.
This case is filed and pending under Sections 109, 217, 218, 220, 420, 425, 466, 467, 468, 469,471, 474 and 506-B read with Section 34 of the Indian Penal Code before the 21st Joint Civil Judge, Junior Division and Judicial Magistrate First Class, Nagpur, and is fixed for 24-12-2014. It is further alleged that the respondent No.1 has signed the personal release bond of Rs.3,000/- on 18-9-2010, i.e. Exhibit 28, before the Judicial ep1.14.odt Magistrate First Class, Court No.2, Nagpur. The petitioner has annexed the copy of the complaint as Annexure VII.
11. It is further alleged by the petitioner that another case pending against the respondent No.1 is Summary Criminal Case No.231 of 1991 (Madanlal Parate v. Devendra Fadnavis), in which the respondent No.1 is the sole accused. It is alleged that this case is filed and pending underSection 500 of the Indian Penal Code before the 15th Civil Judge, Junior Division and Judicial Magistrate First Class, Nagpur, Court No.6, and is fixed for 17-11-2014. The petitioner has annexed the copies of complaint and bail bond as Annexures VIII and IX.
12. It is alleged by the petitioner in para 10 of the petition that the respondent No.1 has suppressed the aforesaid two cases deliberately and has intentionally disclosed only selected cases, which, according to him, may have no obstacles in acceptance of his nomination paper. It is further alleged that the two criminal ep1.14.odt cases stated in the petition "discloses that the Respondent No.1 is facing accusation from the aggrieved party who is also an Advocate of which cognizance has been taken by the concerned Court". It is further alleged that the non-disclosure has materially affected the election of the respondent No.1 as a successful candidate and, therefore, the petition is being presented under Section 100(1)(d)(i) and (iv) of the said Act.
13. By way of amendment introduced in para 27-A in the election petition, which was allowed by consent of the parties on 17-4-2015, it is alleged that the respondent No.1 also concealed the materials facts in his affidavit dated 26-9-2014 filed along with his nomination paper. The concealment is made in column (5)(i) about the Sections under which the chargesheet has been filed by the Police Station Officer, Sitabuldi, in Crime No.252 of 1991 under various Sections 149,294, 448, 324 and 336 along with Sections 147, 148 and 325 of the Indian Penal Code (Sections 147, 148 and 324 of the Indian Penal Code were ep1.14.odt only disclosed by the respondent No.1). It is further alleged that the concerned Judicial Magistrate First Class has accordingly framed the charges against the respondent No.1 even under the other Sections of the Indian Penal Code, which are not mentioned by the respondent No.1 in column 5(i).
14. This petition seeks a declaration essentially in terms of prayer clause (4), which is reproduced below :
"4] declare that the Respondent no.1's nomination had been improperly accepted by the Respondent no.5 for the Maharashtra Legislative Assembly Election, 2014 for the 52, South-West Nagpur Constituency, Nagpur and the election of the Respondent no.1 i.e. returned candidate is void due to non-compliance of the provisions of Constitution of India, The Representation of People Act as well as the Rules and Orders framed thereunder and the other laws."
It is not necessary to reproduce the other prayer clauses made in the petition.
ep1.14.odt
15. Perusal of the affidavit in Form No.26, the contents of which are reproduced in para 8 above, shows that the respondent No.1 has in fact furnished the information in Column (5)(i) and
(ii) therein, in compliance of the provision of Section 33-A(1)(i) of the said Act. In Column (5)(i), the respondent No.1 has given the details of the cases pending against him in which the charges have been framed by the Court of competent jurisdiction for the offences punishable with imprisonment for two years or more. In Column (5)(ii), he has also furnished the information regarding the cases pending against him in which the cognizance has been taken by the Court other than the cases mentioned in Column (5)(i).
16. Clause (i) of sub-section (1) of Section 33-A of the said Act contemplates five types of cases, viz. (a) where a candidate at an election leaves totally blank, the space meant for such information in the prescribed Form No. 26; (b) where there is disclosure of some pending cases in which a candidate is an ep1.14.odt accused, but there is non-disclosure of the other pending cases in which also he is an accused; (c) where the information furnished is found to be completely false and incorrect; (d) where there is a disclosure of some offences in a pending case or cases in which he is accused, but there is non-disclosure of the other offences in the same case in respect of which also he is an accused; and (e) where there is some defect or irregularity, which is not of a substantial character in furnishing of such information in the nomination form.
17. After reading the petition as a whole, I find that the petitioner is coming before the Court with a case of non-disclosure of pending Regular Criminal Case No.343 of 2003 (Madanlal Parate v. Shri Hastak & others), and Summary Criminal Case No.231 of 1996 (Madanlal Parate v. Devendra Fadnavis), in which he is an accused in respect of the offences, which are punishable with imprisonment for a period of two years or more. This attracts non-disclosure of these cases in ep1.14.odt Column (5)(i) in the affidavit in Form No.26 read with Section 33-A(1)(i) of the said Act. Though in the third case, which is Crime No.252 of 1991, the offences in respect of which the respondent No.1 is an accused are stated to be under Sections 147, 148 and 324 of the Indian Penal Code, there is non-disclosure of the other offences under Sections 149, 294, 448,324 and 336 of the Indian Penal Code for which the punishment prescribed is for a period of less than two years. This would be a case of non-disclosure of some offences in the same case, in Column (5)(ii) in the affidavit in Form No.26 read with Section 33-A(2) of the said Act. I would, therefore, treat the petition as one reflecting non-disclosure of certain material information, as required in Column (5)(i) and (ii) of the affidavit in Form No.26 resulting in failure to comply with the provisions of Section 33-A (1)(i) and (2) of the said Act.
18. The legislative history behind the provisions of Sections 33(1) and 33-A(1)(i) and (2) of the said Act read with ep1.14.odt the contents of affidavit in Form No.26 under Rule 4-A of the Conduct of Election Rules need to be seen. The decision of the Apex Court in the case of Union of India and another v.
Association for Democratic Reforms and another, reported in (2002) 5 SCC 294, is a milestone and triggered electoral reform in the country, which has led to introducing the said provision.
The Apex Court has held that it was incumbent upon every candidate, who is contesting the elections, to give information about his criminal background, which requirement is not only essential part of fair and free elections, but also every voter has a right to know about the details of the candidate and such requirement is also covered by freedom of speech granted underArticle 19(1)(a) of the Constitution of India.
19. In order to bring the directions contained in the said decision within the statutory framework, the revised guidelines were issued by the Election Commission on 23-3-2006. Para (3) of the said guidelines/directions is relevant and hence it is ep1.14.odt reproduced below :
"(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon'ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nomination such non-furnishing of the affidavit."
20. The meaning and scope of the aforesaid guidelines came up for discussion before the Apex Court in the case of Resurgence India v. Election Commission of India and another, reported in AIR 2014 SC 344, which is a judgment rendered in a petition under Article 32 of the Constitution of India for issuance of specific directions to effectuate meaningful implementation of the judgment in Association of Democratic Reforms, cited supra.
In the said decision, it is held that the candidate, who has filed an affidavit with false information, as well as the candidate, who has filed an affidavit with the particulars left blank, should be treated on par, and it results in breach of fundamental right guaranteed under Act 19(1)(a) of the Constitution, viz. "right to know", which ep1.14.odt is inclusive of freedom of speech and expression. It is further held that if a candidate files an affidavit having blank particulars, it renders the affidavit nugatory. It is further held that if a candidate fails to furnish such information, then he is obviously avoiding a statutory enquiry being conducted by the Returning Officer underSection 36(2) of the said Act relating to his being not qualified or disqualified in the light ofSection 8 of the said Act and it is bound to result in a defect of a substantial character in the nomination.
21. In the latest decision of the Apex Court in case of Krishnamoorthy v. Sivakumarand othersreported in (2015) 3 SCC 467, while dealing with the provisions of Section 33-A read with Column (5)(i) in Form No.26, the Court considered the question as to whether non-furnishing of the information while filing an affidavit pertaining to the criminal cases, especially cases involving heinous or serious crimes or relating to corruption or moral turpitude would tantamount toep1.14.odt corrupt practice, regard being had to the concept of undue influence. In para 82 of the said judgment, the Apex Court has held as under :
"82. But the question is when an election petition is filed before an Election Tribunal or the High Court, as the case may be, questioning the election on the ground of practising corrupt practice by the elected candidate on the foundation that he has not fully disclosed the criminal cases pending against him, as required under the Act and the Rules and the affidavit that has been filed before the Returning Officer is false and reflects total suppression, whether such a ground would be sustainable on the foundation of undue influence. We may give an example at this stage. A candidate filing his nomination paper while giving information swears an affidavit and produces before the Returning Officer stating that he has been involved in a case under Section 354 IPC and does not say anything else though cognizance has been taken or charges have been framed for the offences under the Prevention of Corruption Act, 1988 or offences pertaining to rape, murder, dacoity, smuggling, land grabbing, local enactments like the Maharashtra Control of Organised Crime Act, 1999, U.P. Control of Goondas Act, 1970, embezzlement, attempt to murder or any other offence which may come within the compartment of serious or heinous offences or corruption or moral turpitude. It is apt to note here that when an FIR is filed a person filing a nomination paper may not be aware of lodgement of ep1.14.odt the FIR but when cognizance is taken or charge is framed, he is definitely aware of the said situation. It is within his special knowledge. If the offences are not disclosed in entirety, the electorate remain in total darkness about such information. It can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chosen as a representative to an elected body."
The Court has held that when the FIR is filed, a person filing a nomination paper may not be aware of lodgment of the FIR, but when the cognizance is taken or charge is framed, he is definitely aware of the said situation. It is held that it is within his special knowledge and if the offences are not disclosed in entirety, the electorate remain in total darkness about such information. It is further held that it can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chosen as a representative to an elected body.
ep1.14.odt
22. In para 86 of the decision of Apex Court in Krishnamoorthy's case, cited supra, it is held that the requirement of a disclosure especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offences of corruption or moral turpitude, the exercise of electoral right would not be an advised one. He will be exercising his franchise with the misinformed mind and his fundamental right to know also gets nullified. The Apex Court has held that while filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, is not given, indubitably, there is an attempt to suppress, effort to misguide, and keep the people in dark. It is further held that this attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice and the election is liable to be declared as null and void under Section 100(1)(b) of the said Act.
ep1.14.odt
23. The position, which emerges from the decision of the Apex Court, cited supra, can be summarized as under :
(i) The object and purpose of introducing Section 33-A of the Representation of the People Act, 1951 calling information in Form No.26 on affidavit under Rule 4-A of the Conduct of Election Rules is to effectuate the fundamental right of freedom of speech and expression, as granted to the voters under Article 19(1)(a) of the Constitution of India, to know the criminal antecedents of the candidates at an election, which is necessary concomitant for a free and fair election. [Para 18]
(ii) The candidate filing an affidavit with false information as well as the candidate leaving particulars in the affidavit blank, are treated on par, resulting in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution of India, rendering affidavit ep1.14.odt nugatory. [Para 20]
(iii) Failure to furnish information on the affidavit in Form No.26 under Rule 4-A of the Conduct of Election Rules read with Section No.33-A of the said Act is obviously to avoid statutory enquiry being conducted by the Returning Officer under Section 36(2)of the Representation of People Act relating to the candidate being not qualified or disqualified in the light of Section 8, as contained in ground under Section 100(1)(a)therein, and it is bound to result in a defect of a substantial character.
[Para 20]
(iv) In cases of heinous or serious offences, if the cognizance is taken or charge is framed, the candidate is definitely aware of the said situation. It is within his special knowledge. If such offences are not disclosed in entirety, the electorate remain in total darkness about such information. The exercise of electoral right would not be an advised one and he will be exercising his franchisee with the misinformed ep1.14.odt mind. [Paras 21 and 22]
(v) In case where nomination form is accepted in breach of the mandate of Section 36(2)(b) read with Section 33-A(1)(i) and (2) of the said Act, it would be a case of a corrupt practice of "undue influence" under Section 100(1)(b) read with Section 123(2)of the said Act. [Para 22]
24. Every candidate at an election is duty bound to honestly disclose full and complete information called on the affidavit in Form No.26 so as to make himself qualified to be chosen as a candidate at an election. Any suppression or concealment or non-disclosure of the material information, which is within his special knowledge, may be treated as a defect of a substantial character so as to adversely affect on his being qualified to be chosen for nomination as a candidate for election.
It may not be possible for the Returning Officer at the stage of scrutiny of nomination paper to conduct a detailed enquiry about ep1.14.odt the correctness of the information furnished, or non-disclosure, concealment or suppression of the material information, either for want of objection or because of time constraints or for want of adequate machinery to conduct such an enquiry. In such a case, a decision on these aspects is merely deferred and can be made the subject-matter of challenge in an election petition.
However, mere quoting of wrong Sections in the election petition will not prevent the Court from treating the petition challenging the election of the respondent No.1 on the ground under Section 100(1)(a) of the said Act, namely, that on the date of his election, the respondent No.1 was not qualified to be chosen to fill the seat under the Constitution or the Representation of People Act, 1951. Such petition is not required to be supported by an affidavit, as contemplated by the proviso to Section 83(1) and there is no other legal impediment in treating this petition on the ground under Section 100(1)(a) of the said Act. Though this petition challenges the election of the ep1.14.odt respondent No.1 on the grounds under Section 100(1)(d)(i) and
(iv) of the said Act, it can be treated as petition on the ground under Section 100(1)(a) of the said Act also.
26. This petition is not filed on the ground mentioned in Section 100(1)(b) of the said Act, alleging that the respondent No.1 is guilty of corrupt practice of "undue influence", as defined underSection 123(2) of the said Act, and this position is conceded by the petitioner, in response to such question put to him during the course of arguments. Even otherwise, the petition cannot be treated as raising a ground of corrupt practice because it is not supported by an affidavit in the prescribed form in support of such allegation along with the particulars thereof, as contemplated by the proviso in Section 83(1) of the said Act.
After the petition was closed for orders on 10-7-2015, the petitioner filed an affidavit in Form No.25 under Rule 94-A of the Conduct of Election Rules on 13-7-2015 stating that it is in support of the allegation of corrupt practice of "undue influence"
ep1.14.odt under Section 123(2) of the said Act, which cannot be accepted for the reason that it is filed much after the period of limitation has expired.
27. Shri Sunil Manohar, the learned Senior Counsel, assisted by Advocate Shri Deven Chauhan, appearing for the respondent No.1, has urged that even if it is accepted that there is non-compliance of the requirement of Section 33-A(1)(i) and (2) read with Section 33(1) of the said Act, it would not ipso facto make the petitioner entitled to any relief claimed in the petition.
According to him, the petition challenges the election of the respondent No.1 on the grounds under Section 100(1)(d)(i) and
(iv) of the said Act and, therefore, the petitioner has to specifically plead and prove the material fact that the result of the election "insofar as it concerns the returned candidate" has been materially affected by improper acceptance of such nomination paper by the Returning Officer. He submits that unless this fact is proved, the petitioner cannot succeed in this petition.
ep1.14.odt
28. Inviting my attention to para 10 of the petition, wherein the averment is that "the non-disclosure has materially affected the election of the respondent No.1 as a successful candidate", Shri Manohar has urged that the said Act has attached much significance to the expression "insofar as it concerns the returned candidate" and, therefore, such is the material fact, which is required to be pleaded in the petition, and it is totally absent. He submits that there are several ways in which the result of the election, insofar as the returned candidate is concerned, gets affected. The respondent No.1 is, therefore, entitled to know how and in what manner his election is alleged to be materially affected. He submits that there is no pleading as to how and in what manner the result of the election insofar as it concerns the respondent No.1 has been materially affected. He has, therefore, urged that it is not permissible for the petitioner to lead evidence to prove this fact and hence the petition is liable to be rejected for failure to make out a cause of action. In support of all his ep1.14.odt contentions, he has relied upon the following decisions of the Apex Court :
(1) Jabar Singh v. Genda Lal [AIR 1964 SC 1200], (2) Santosh Yadav Vs. Narender Singh [(2002) 1 SCC 160], (3) G.S. Iqbal Vs. K.M. Khader & Ors.
[(2009) 11 SCC 398], (4) Mangani Lal Mandal Vs. Bishnu Deo Bhandari [(2012) 3 SCC 314], (5) Shambhu Prasad Sharma Vs. Charandas Mahant & Ors. [(2012) 11 SCC 390], and (6) Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari & Anr. [(2014) 5 SCC 312]
29. Shri Satish Uke, the petitioner, appearing in person, has urged that the facts stated in the petition have to be read as a whole along with the contents of the documents, which are also verified and signed in the manner prescribed to find out whether ep1.14.odt all the material facts are pleaded in the petition or not. He has relied upon two decisions of the Apex Court in the cases of
(i) Kisan Shankar Kathore v. Arun Dattatray Sawant and others, reported in AIR 2014 SC 2069, and (ii) Krishnamoorthy v.
Sivakumar and others, reported in (2015) 3 SCC 467. He submits that there is a deliberate suppression of complete information by the respondent No.1, as required by Sections 33(1) and33-A(1)(i) and (2) of the said Act read with Column (5)(i) and (ii) in his affidavit in Form No.26, and this is a defect of a substantial character. He has invited my attention to the contents of para 9 of the petition, wherein it is stated that the respondent No.1 has signed the personal release bond of Rs.3,000/- on 18-9-2000. In para 10 of the petition, the averment is that the cognizance is taken of the offences. He, therefore, submits that there are pleadings in respect of material facts and the objection raised by the respondent No.1 is required to be rejected.
30. Shri Manohar has placed heavy reliance upon the ep1.14.odt decision of the Apex Court in the case of Jabar Singh v. Genda Lal, reported in AIR 1964 SC 1200, for his proposition that in case of improper acceptance of nomination paper of the returned candidate, the requirement ofSection 100(1)(d)(i) need to be complied with. It was a case where the appellant before the Apex Court was declared elected by a margin of two votes. The respondent No.1 therein filed an election petition on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in his favour, as mentioned under Section 100(1)(d)(iii) of the said Act. The Election Tribunal declared the election of the appellant as void and the appeal preferred before the Apex Court was dismissed. It was not a case of improper acceptance of nomination of the returned candidate at an election or of the candidate other than the returned candidate underSection 100(1)(a) or Section 100(1)(d)(i) of the said Act. This case is therefore, not an authority for the proposition that in case of improper acceptance of nomination paper of a "returned candidate", the requirement of ep1.14.odt Section 100(1)(d)(i) of the said Act regarding pleading and proof that the result of the election insofar as it concerns a returned candidate has been materially affected, is attracted.
31. In the case of Santosh Yadav, cited supra, there were 17 candidates in the field, including the appellant and the respondent. The respondent No.1 was elected by a margin of 334 votes. The election was challenged on the ground that the nomination of one Shri Naresh Yadav was improperly accepted, as he was disqualified under clause (a) of sub-sections (i) and (iii) ofSection 8 of the said Act. The High Court refused to set aside the election on the ground that there was no pleading that the result of the election insofar as it concerns the "returned candidate", had been materially affected. The Apex Court held that it is difficult to make reasonable guess, muchless with any certainty that if Shri Naresh Yadav was excluded, then such number of votes would have been taken out of the votes held by him and fallen into the box of the appellant so as to make her ep1.14.odt successful. The Apex Court dismissed the appeal under Section 116-A of the said Act. It was thus a case of improper acceptance of the nomination paper under Section 100(1)(d)(i) of the said Act, not of the "returned candidate" but of the candidate, who was defeated. The decision is, therefore, not applicable to the facts of this case.
In case of G.S. Iqbal, cited supra, the election petition challenging the election of the respondent No.2, a returned candidate, on the grounds set out in Section 100 (1)(d)(i) and (iv) of the said Act was dismissed by the High Court, holding in para 14 that there was no illegality in accepting the nomination paper of the returned candidate. In para 22, the Apex Court has held that as a matter of fact the petitioner neither specifically pleaded nor proved that there has been non-compliance with any of the provisions of Section 33 or 34 of the said Act and there was no ground made out for rejection of nomination of the "returned candidate" under Section 36(2)(b) of the said Act. It isep1.14.odt thereafter the Court proceeds to consider the question of non-compliance with the provisions of the Constitution and of the Representation of People Act 1951, as contemplated under Section 100(1)(d)(iv) therein.
33. The Apex Court held in G.S. Iqbal's case that in order to make out a case under Section 100(1)(d)(iv) of the said Act, it was necessary for the petitioner to specifically plead that the election insofar as it concerned the "returned candidate" has been materially affected by non-compliance with the provisions of the said Act or the Rules made thereunder. The appeal before the Apex Court was dismissed. The finding in this case was that in fact there was no case of improper rejection of the nomination paper of the returned candidate made out under Section 36(2)(b) of the said Act. It was not a case where the question of pleading and proof of the fact that the result of election was materially affected upon improper acceptance of the nomination paper of a "returned candidate" that was involved.
ep1.14.odt
34. In the case of Mangani Lal, cited supra, the petition was on the grounds under Section 100(1)(d)(i) and (iv) of the said Act challenging the election of a returned candidate, which was set aside by the High Court on the ground of non-disclosure of assets and liabilities of his wife and children. The High Court placed heavy reliance upon the decision of the Apex Court in case ofUnion of India v. Association of Democratic Reforms, reported in (2002) 5 SCC 294, and People's Union for Civil Liabilities v. Union of India, reported in (2003) 4 SCC 399, to hold that the suppression of facts by the returned candidate with regard to the assets and liabilities was breach of the Constitution, namely Article 19(1)(a), and has breached the right of information of the electors.
35. In paras 11 and 12 of the decision in Mangani Lal's case, the Apex Court has held that a mere non-compliance or breach of the Constitution of the statutory provisions noticed ep1.14.odt above, by itself, does not result in invalidating the election of a returned candidate under Section 100 (1)(d)(iv) of the said Act.
The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) of the said Act, is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. It is held that the election-petitioner to succeed on such ground has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The Apex Court found that there was no such pleading and, therefore, the decision of the High Court setting aside the election of the returned candidate was reversed. Though the petition was on the grounds under Section 100(1)(d)(i) and (iv) of the said Act, the decision is only in respect of the ground under Section 100(1)(d)(iv), which was neither a case of improper acceptance of nomination paper of a returned candidate nor of any other candidate. Hence, the decision is not an authority on ep1.14.odt the improper acceptance of nomination paper of a returned candidate. The decision is therefore, not applicable in the present case.
36. In the case of Shambhu Prasad Sharma, cited supra, the High Court dismissed the election petition under Order VII, Rule 11(a) of the Civil Procedure Code on the ground of lack of pleading of material facts. There were 17 candidates in the field, excluding the appellant, who was defeated by the respondent No.1, who was elected. The case was that the nomination form of the respondent Nos.2 to 18 ought to have been rejected for non-
compliance of Sections 33-A and 33-B of the said Act. The petition was on the ground mentioned in Section 100 (1)(d)(i) of the said Act, i.e. in respect of wrongful acceptance of the nomination papers of the candidates other than the "returned candidate" and the petitioner. In this background, the Court considered the question of failure to plead material fact that the election of the "returned candidate" was materially affected by ep1.14.odt such improper acceptance and the petition was dismissed on that ground alone by the Apex Court. This decision is not an authority in the case of improper acceptance of the nomination paper of the returned candidate.
37. In the decision of Arikala Narasa Reddy, cited supra, it was a case before the Apex Court of improper reception of votes under Section 100 (1)(d)(iii) of the said Act and the claim was for re-count of votes. The appellant was declared elected by one vote and the question of validity of three votes held in favour of respondent No.1, which were wrongly rejected, and one vote counted in favour of the appellant, ought to have been rejected.
In this background, the question of pleading and proof that the result of the election has been materially affected, was considered. The High Court declared that the respondent No.1 was elected by a margin of two votes and the Supreme Court modified the said order. It was a case under Section 100(1)(d)(iii) and not under Section 100(1)(a) or ep1.14.odt Section 100(1)(d)(i) of the said Act. This decision is not an authority for the proposition that in case of improper acceptance of the nomination paper of the returned candidate, the requirement of pleading and proof that the result of the election insofar as it concerns a returned candidate is materially affected, as contained in Section 100(1)(d)(i) of the said Act, is attracted.
On the contrary, though separate, but concurring judgment delivered by Shri N. Rajagopala Ayyangar, J. (as he then was the Member of the Bench) in the case of Jabar Singh, is heavily relied upon by Shri Manohar, in which it is held as under:
"For instance, let me take a case within S. 100(1)(d)(i) where there has been an improper acceptance of any nomination. The question arises as to whether the election of the returned candidates has been materially affected by the improper acceptance. Obviously, a nomination which is alleged to have been improperly accepted and which is the subject of the charge under S. 100(1)(d)(i) is not the acceptance of the nomination either of the election petitioner where he has been one of the candidates or of the returned candidates but only of one of the other defeated candidates.(emphasis supplied). If after ep1.14.odt inquiry the nomination is found to have been improperly accepted and the Tribunal proceeds to inquire as to its effects on the election, I take it, it would necessarily have to consider the votes received by that candidate. If this is not to be done it would either mean that in every case of an improper acceptance of a nomination the election is to be declared void or that in no case can such a declaration be made. Now, if the vote cast in favour of that candidate whose nomination was improperly accepted have to be counted, necessarily there has to be a scrutiny and the Tribunal would have to inquire and ascertain the number of valid votes cast for that candidate in order to determine whether the improper acceptance of votes in favour of that candidate has materially affected the result of the election i.e has resulted in the election of the "returned candidate". In that context the scrutiny of the improper reception of the votes in favour of such candidate would obviously have to take place and that could be done only by virtue of the provision inS. 100(1)(d)(iii).
This would at least show that the expression of "any vote" in the clause has to be read as meaning 'any vote cast in the election with which the petitioner is concerned' and not 'any vote cast in favour of the "returned candidate"', to take the illustration merely of the improper reception of a vote." (Emphasis supplied) The Apex Court has answered the question as to whether the election of the "returned candidate" has been materially affected ep1.14.odt by improper acceptance and it is held that obviously a nomination paper, which is alleged to have been improperly accepted and which is the subject of the challenge on the ground under Section 100(1)(d)(i), is not the acceptance of the nomination, either of the election-petitioner, where he has been one of the candidates or of the "returned candidate", but only of one of the other defeated candidates. Though Shri Manohar has relied upon this decision in support of his contention, in fact the decision is an authority for the proposition of law that the requirement ofSection 100(1)(d)(i) of the said Act is not attracted in case of improper acceptance of the nomination paper of a returned candidate, which runs contrary to his own arguments.
39. The aforesaid view gets reinforced from the further observation of the Apex Court that while deciding the question of materially affecting the result of election, insofar as it concerns a "returned candidate", the Court will have necessarily to ep1.14.odt scrutinize the votes of the candidate, who is defeated, and not the votes of the candidate, who is declared to be elected. The Court will have to make an enquiry to ascertain the number of valid votes caste for the candidate whose nomination was improperly accepted, to determine whether such votes have materially affected the result of the election of a returned candidate.
In the case of Kisan Shankar Kathore, cited supra, replied upon by Shri Satish Uke, the petitioner in person, it was a case where the appellant before the Division Bench of two Judges of the Apex Court, was the "returned candidate" whose election was declared as null and void by the High Court on the ground that there was non-disclosure of dues of the Government and Public Undertakings and also of movable and immovable properties owned by his wife and the partnership firm, in which he was a partner. The High Court held that it was a material defect and the nomination form filed along with the affidavit was tainted, which resulted in improper acceptance of nomination ep1.14.odt paper, within the meaning of Section 100(1)(d)(i) of the said Act.
41. In Kisan Shankar Kathore, it was a petition filed under Section 100 (1)(d)(i) and (iv) of the said Act and the High Court framed an issue as to whether on account of acceptance of the nomination paper, the election result is materially affected? This issue was answered as under, by the High Court in para 137 of its judgment, which is reproduced below:
"137. In my opinion, it is not necessary to elaborate on this matter beyond a point, except to observe that when it is a case of improper acceptance of nomination on account of invalid affidavit or no affidavit filed therewith, which affidavit is necessarily an integral part of the nomination form; and when that challenge concerns the returned candidate and if upheld, it is not necessary for the Petitioner to further plead or prove that the result of the returned candidate has been materially affected by such improper acceptance."
(Emphasis supplied) The High Court held that when the challenge on the ground of improper acceptance concerns the returned candidate and it is upheld, it is not necessary for the petitioner to further plead and ep1.14.odt prove that the result of the returned candidate has been materially affected. The Apex Court dismissed the appeal under Section 116-A of the said Act and held in para 33 that the finding of the High Court on non-disclosure of information qua all aspects, is without blemish and the information contained in the affidavit cannot be treated as sufficient/substantial compliance.
The Apex Court observed in Kisan Shankar Kathore's case that when the objections are raised to the correctness of the information or alleging that there is non-disclosure of certain important information in the affidavit filed along with the nomination paper, it may not be possible for the Returning Officer at that time to conduct a detailed examination and to reject the nomination paper. Where such a detailed enquiry is needed, 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 ep1.14.odt 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.
43. This decision in Kisan Shankar Katore's case is, therefore, clearly an authority for the proposition that when the challenge on the grounds under Section 100(1)(d)(i) and (iv) concerns a returned candidate and if upheld, it is not necessary for the petitioner to further plead and prove that the result of the returned candidate has been materially affected by such improper acceptance. It supports the contention of the petitioner. The High Court and the Apex Court in fact considered this case as one on the ground under Section 100(1)(a) of the said Act, although it is not so specifically stated in the decision. The contention of Shri Manohar that in this case the Courts have not considered the aspect of pleading and proof of materially ep1.14.odt affecting the result of the election of the returned candidate, is, therefore, rejected.
44. In view of the aforesaid decisions, the position of law can be summarized as under:
(i) Mere quoting of wrong sections in the election petition will not prevent the court from treating the petition challenging the election of the respondent No.1 on the ground under Section 100(1)(a) of the said Act. Though the present petition is filed on the grounds mentioned in Section 100(1)(d)(i) and (iv) of the said Act it can be treated as the petition challenging the election of the respondent No.1 on the ground underSection 100(1)(a) of the said Act, namely that on the date of his election, the respondent No.1 was not qualified to be chosen to fill the seat under the Constitution or the Representation of People Act, 1951. [Paras 25 and 41 to 43] ep1.14.odt
(ii) The requirement of Section 100(1)(d)(i) of the said Act to establish that the election of the returned candidate has materially affected is not attracted in a case, where there is improper acceptance of nomination paper of the returned candidate. [Paras 38, 40 and 41]
(iii) In order to show that the election of a returned candidate is materially affected, as stipulated under Section 100(1)(d)(i), the votes secured by a candidate who is defeated and whose nomination paper was improperly accepted, are required to be counted. [Para 39]
(iv) Once it is found that it is a case of improper acceptance of nomination paper of a returned candidate on the ground of suppression of material information, it would result in rejection of nomination paper and the declaration would be that the returned candidate was not entitled to contest and his election is void.
[Paras 41 to 43]
(v) Necessary corollary of improper acceptance of ep1.14.odt nomination paper of a returned candidate would be that all the votes secured by him at the election in question have to be ignored. The only consequence would be that the result of his election automatically gets materially affected.
45. Shri Manohar could not point out any authority in support of his proposition that mere proof of improper acceptance of nomination of a returned candidate will not, by itself or ipso facto or per se entitled to a declaration claimed in the petition. He also could not point out any authority for the proposition that the requirement of pleading and proof that the election of the returned candidate has materially affected, as contemplated by Section 100(1)(d)(i) and (iv), is attracted in a challenge on the ground of improper acceptance of the nomination paper of a returned candidate. His contention that in the present case, the petitioner shall not be entitled to any relief unless it is pleaded and proved, as contemplated by Section 100(1)(d)(i) and (iv) of the said Act, and the result of the election ep1.14.odt insofar as it concerns the returned candidate was materially affected by such improper acceptance, is completely misconceived and, therefore, rejected. Consequently, it is held here that the said requirement of Section 100(1)(d)(i) and (iv) of the said Act is not attracted in case of improper acceptance of the nomination paper of the returned candidate. It is further held that upon proof of the fact that the nomination paper of the respondent No.1 carried the defect of a substantial character requiring the Returning Officer to reject the nomination under Section 36(2) of the said Act, the petitioner shall be entitled to a declaration claimed in the petition.
46. Presently, I am dealing with the application under Order VII, Rule 11(a) of the Civil Procedure Code claiming rejection of the petition at the threshold on the ground that it fails to disclose the cause of action for want of pleading of material facts. Section 83(1)(a) of the said Act inter alia provides that an election petition shall contain a concise statement of the material ep1.14.odt facts, which is analogous to Order VI, Rule 2(1) of the Civil Procedure Code. This provision states that every pleading shall contain a concise form of the material facts on which the party relies for the reliefs claimed. It is well-settled that all the facts, which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the said Act, resulting in dismissal of the election petition at the threshold under Order VII, Rule 11(a) of the Civil Procedure Code for failure to disclose complete cause of action. The entire chain of material facts leading to a relief claimed in the petition should be complete and any missing in the link shall result in failure to disclose the cause of action.
47. The cause of action is a bundle of all primary facts, which, if proved, would entitle to a relief claimed in the petition.
Shri Manohar, the learned Senior Advocate does not dispute the position of law that for the purpose of deciding the application ep1.14.odt under Order VII Rule 11(a) of the Code of Civil Procedure, the court has to proceed on the assumption that the contents of the petition are true and correct. What are the material facts, would depend upon the facts and circumstances of each case. These are all the principles of law laid down in the decisions of the Apex Court in cases of (i) Charan Dass v. Surinder Kumar and others, reported in 1995 Supp.(3) SCC 318, (ii) Anil Vasudeo Salgaonkar v. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310, and
(iii) Jitu Patnaik v. Sanatan Mohakud and others, reported in (2012) 4 SCC 194, relied upon by Shri Manohar.
48. Now, the question is about the pleading of the material facts in respect of non-disclosure of information as required under Column (5)(i) and (ii) of the affidavit in Form No.26, resulting in failure to comply with the provisions of Section 33-A(1)(i) of the said Act, making the respondent No.1 not qualified to be chosen to fill the seat under the provisions of the Constitution andRepresentation of People Act. The ep1.14.odt petitioner has to make out a case in the pleading that the nomination paper of the respondent No.1 suffered from a defect of a substantial character and, therefore, it was required to be rejected under Section 36(2)(b) of the said Act.
49. The provision of Section 33-A(1)(i) of the said Act, which is relevant in this case, is attracted, if it is shown that prior to the date of delivery of nomination paper under Section 33(1) of the said Act -
(a) the respondent No.1 was an accused of any offence punishable with imprisonment for two years or more in a case pending against him; and
(b) the Court of Competent jurisdiction had framed a charge against him in respect of such offence.
In order to enable the voters to effectively exercise the right of ep1.14.odt franchise with well informed mind, the material information considered to be the bare minimum, to form an opinion to choose the candidate to be voted at an election, is called from every candidate in Column (5)(i) in the affidavit in Form No.26 is under Rule 4-A of the Conduct of Election Rules.
50. If the petitioner is coming with a case of failure to disclose or non-disclosure or concealment or suppression of such information by the respondent No.1 in Column (5)(i) in the affidavit in Form No.26, the petition must contain the following material facts based upon the information called, viz. -
(i) the fact that the respondent No.1 is an accused in the offences under specific Section/s of specific Act/s with short description of such offence/offences together with Cases/FIR number with the details of the concerned Police Station,
(ii) the fact that the offence/offences alleged against ep1.14.odt the respondent No.1 is/are punishable with imprisonment for a period of two years or more,
(iii) the fact that such case/cases were pending against the respondent No.1 on the date of delivery of nomination paper under Section 33 of the said Act, alongwith the Case No./Nos.
and the name of the Court, where the matter is pending,ig
(iv) the fact that the charge/charges were framed against the respondent No.1 prior to the date of delivery of nomination paper under Section 33 of the said Act in respect of the offence/offences alleged against him alongwith the specific date of framing of charge/charges by the court of competent jurisdiction, and
(v) the fact that there is a failure to disclose or non-disclosure or concealment or suppression of the aforesaid material facts by the respondent No.1 in his affidavit in Form No.26 delivered along with the nomination form under Section 33A(2) of the said Act to the Returning ep1.14.odt Officer.
If all the aforesaid facts are pleaded or found in the petition, then it can be said that a cause of action is made out to attract the provision of Section 33-A(1)(i) of the said Act and to claim rejection of the nomination paper under Section 36(2) therein. It is thereafter the Court can proceed further to complete the trial.
51. The petitioner has pleaded that the respondent No.1 has concealed the information that he is an accused in Regular Criminal Case No.343 of 2003 for the offences under Sections 109, 217,218, 220, 420, 425, 466, 467, 468, 469, 471, 474 and 506-B read with Section 34 of the Indian Penal Code, which is pending in the Court of Judicial Magistrate First Class at Nagpur. The petitioner has also pleaded that the respondent No.1 is also an accused in Summary Criminal Case No.231 of 1996 for the offence punishable under Section 500 of the Indian Penal Code, which is pending in the Court of Judicial Magistrate First ep1.14.odt Class, Nagpur (Court No.6). Thus, the petitioner has given the complete details of the cases, which are not disclosed by the respondent No.1.
52. The petitioner has not pleaded in the petition that the offences alleged against the respondent No.1 are punishable with imprisonment for a period of two years or more. It is possible that if the offences punishable are with imprisonment for a period of less than two years, then the provision of Section 33-A(1)(i) of the said Act would not be attracted. However, in my opinion such failure to plead would not make any difference for the reason that the particular provisions in respect of the offences in which the respondent No.1 is an accused are specifically stated and it is a mater of law to go to the said provisions to find out whether the offences are punishable with imprisonment for a period of two years or more, so as to attract the said provision. It cannot be said that it is a case of absence of pleading of material facts stated in Items No.(i) to (iii) above.
ep1.14.odt
53. Coming to the Item No.(iv), it is necessary for the petitioner to plead the material fact that prior to the date of delivery of nomination paper under Section 33(1) of the said Act, the charge/charges were framed against the respondent No.1 in respect of the offences which are not disclosed in Column (5)(i) in the affidavit in Form No.26 by the Court of competent jurisdiction. The date of framing of charge/charges becomes a material fact. Such pleading is significant to make out a case under Section 33-A(1)(i) of the said Act. Shri Manohar is right in urging that in the present case, neither a specific date of framing such charge is pleaded nor the pleading is that the charge was framed prior to the date of delivery of nomination paper by the respondent No.1. Such pleadings are completely absent in the petition.
54. When the charge is framed prior to the date of submitting nomination paper, it raises a presumption about the ep1.14.odt knowledge of the pendency of such proceedings to the respondent No.1 and the statutory obligation to disclose it in Form No.26 arises. If the charge is framed subsequently to the delivery of nomination paper under Section 33 of the said Act, it cannot be said that there was any such statutory obligation upon the respondent No.1 to disclose such information in Form No.26. A specific question was put to the petitioner Shri Satish Uke as to whether the charge/charges were framed against the respondent No.1 prior to the delivery of nomination paper under Section 33(1) of the said Act in respect of the offences not disclosed, his response is that such charges were not so framed.
There is no case made out in the pleadings to attract the provision of Section 33-A(1)(i) of the said Act and to reject the nomination paper of the respondent No.1 under Section 36(2) therein. The period of limitation has expired and the petitioner cannot be permitted to cure this defect by incorporating such pleadings. No amount of evidence can be permitted to be led. The lack of pleading of such material facts becomes fatal for the Court to ep1.14.odt proceed on the trial of the election petition.
55. Faced with the situation that there is no pleading that the charge/charges was/were framed against the respondent No.1 prior to the date of delivery of nomination paper under Section 33(1)of the said Act, Shri Satish Uke, the petitioner appearing in person, has urged that it is a case of clear non-compliance of the requirement of information contained in Column (5)(ii) in the affidavit in Form No.26 which require furnishing of information of cases pending against the respondent No.1 in which cognizance has been taken by the Court of Competent jurisdiction [other than the cases mentioned in Column (5)(i)]. He submits that Column (5)(ii) is the part and parcel ofSection 33-A(1)(i) and (2) of the said Act and lack of pleadings regarding framing of charge prior to the date of nomination is not material in such case. According to him, all the three cases were required to be disclosed at least in Column (5)(ii) in Form No.26 by the respondent No.1 and since ep1.14.odt there is undisputed non-disclosure, it is a case of non-compliance of Section 33-A(1)(i) and (2) of the said Act requiring rejection of nomination paper under Section 36(2) of the said Act.
56. For the purpose of this application, I proceed on the footing that Column (5)(ii) in Form No.26 is the part and parcel of Section 33-A(1)(i) and (ii) of the said Act and all the undisclosed three cases were required to be disclosed at least in Column (5)(ii) of the affidavit in Form No.26 by the respondent No.1. In order to show such failure to comply, what is required to be pleaded in the petition as a material fact is that the cognizance of the offences in which respondent No.1 is accused, was taken by the Court of competent jurisdiction prior to the date of delivery of nomination paper under Section 33(1) of the said Act.
The date of taking cognizance is a material fact which is also required to be stated in Item (a) in Column (5)(ii) in Form No.26.
It is, therefore, required to be pleaded in the petition, the significance of it being that it raises a presumption about the ep1.14.odt knowledge of the pending cases to the respondent No.1. There is neither a specific date of taking cognizance pleaded nor the pleading is that the cognizance was taken prior to the date of delivery of nomination paper by the respondent No.1. Such pleadings are completely absent in this petition. Merely because the respondent No.1 is shown to have been released on execution of bail bond of Rs.3000/- on 18-9-2000, that by itself does not mean that prior to the date of delivery of nomination paper, either the case was pending against him or the Court had taken cognizance of the offences alleged against him. The lack of pleading regarding such material facts becomes fatal for the Court to proceed on the trial of the election petition.
57. The pleading in paragraph 27A in the petition is that though the respondent No.1 has disclosed Crime No.252 of 1991 in Column (5)(i) in which he is an accused in respect of the offences under Sections 147, 148 and 324 of the Indian Penal Code, there is non-disclosure of the other offences under ep1.14.odt Sections 149, 294, 448, 324 and 336 of the Indian Penal Code.
Form No.26 delivered by the respondent No.1 shows that the date of taking cognizance by the Court of Judicial Magistrate First Class No.2 at Nagpur in respect of those offences is shown in Column (5)(i) as 16-7-1991 along with the date of framing of charge as 4-1-2006. The respondent No.1 has disclosed that he is an accused in this case in respect of the offences under Sections 147, 148 and 324 of the Indian Penal Code for which the punishment prescribed is of two years or more. The offences under Sections 149, 294, 448, 324 and 336 of the Indian Penal Code in the same case are not disclosed and they are punishable with imprisonment for a period of less than two years. It is therefore not a case of non-disclosure of the information required underSection 33-A(1)(i) of the said Act. Be that as it may, there is no pleading that the defect was of a substantial character and, therefore, the Returning Officer was required to reject the nomination paper of the respondent No.1 under Section 36(2) of the said Act, on that ground alone.
ep1.14.odt
58. Though in the application filed under Order VII, Rule 11(a) of the Civil Procedure Code an objection is raised that the verification to the petition suffers from a defect of incurable nature, the learned Senior Advocate Shri Manohar has conceded to position that the defect is curable and the petitioner can be permitted to cure such defect and the petition cannot be rejected on that ground alone. I, therefore, need not consider this question in detail.
59. From what has been held above, it is apparent that it is a case of failure to plead material facts of non-disclosure of information in Column (5)(i) and (ii) of the affidavit in Form No.26 delivered under Section 33-A(1)(i) and (2) of the said Act that prior to the date of delivery of nomination paper under Section 33 of the said Act - (i) a charge was framed against the respondent No.1 in a case pending in respect of any offence punishable with imprisonment for a period of two years or more, ep1.14.odt or (ii) he was an accused in a pending case in which cognizance was taken in respect of any offence punishable with imprisonment for less than two years and such defect was of a substantial character requiring the rejection of the nomination paper under Section 36(2) of the said Act.
60. In the result, Civil Application No.993 of 2015 at Exhibit 13 is allowed. Consequently, the election petition is rejected under Order VII, Rule 11(a) of the Civil Procedure Code.
The security deposit is forfeited. No order as costs.
JUDGE.
PDL/NSN
No comments:
Post a Comment