871 GI/2013

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PUBLISHED BY AUTHORITY

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WEEKLY

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No. 7]

NEW DELHI, MARCH 10—MARCH 16, 2013, SATURDAY/PHALGUNA 19—PHALGUNA 25, 1934

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Separate Paging is given to this Part in order that it may be filed as a separate compilation.

Hkkx II—[k.M 3—mi&[k.M (iii)

PART II—Section 3—Sub-section (iii)

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Orders and Notifications Issued by Central Authorities (other than the Administrations of Union Territories)

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ELECTION COMMISSION OF INDIA

New Delhi, the 1st March, 2013

O.N. 18.—In pursuance of clause (b) of Sub-section 2 of Section 116C of the Representation of the People Act, 1951

(43 of 1951), the Election Commission hereby publishes the Order dated 3rd July, 2012 of the Supreme Court of India in Civil

Appeal No. 4847 of 2012 filed against the Judgement, dated 17th August, 2010 of the High Court of Chhattisgarh Bilaspur

in Election Petition No. 15 of 2009.

118

THE GAZETTE OF INDIA : MARCH 16, 2013/PHALGUNA 25, 1934

[PART II—SEC. 3(iii)]

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No 4847 of 2012

(Arising out of S.L.P. (C) No. 28104 of 2010

Shambhu Prasad Sharma

... Appellant

Versus

Shri Charandas Mahant & Ors.

... Respondent

JUDGMENT

T. S. THAKUR, J.

Leave granted.

2. This appeal arises out of an order passed by the

High Court of Judicature of Chhattisgarh, at Bilaspur

whereby Election Petition No.15 of 2009 filed by the

appellant has been dismissed on the ground that the same

does not make a concise statement of the material facts on

which the appellant relies and hence fails to disclose a

cause of action.

3. Election to No.4 Korba Parliamentary

Constituency in the State of Chhattisgarh was held as a

part of the general elections of the year 2009. As many as

twenty two candidates filed their nomination papers for

election from the above constituency but with the

withdrawal of nominations by four of such candidates,

only seventeen candidates were left in the fray besides the

appellant-petitioner who contested as an independent

candidate and respondent No.1 set up by the Indian

National Congress Party. The margin of victory between

respondent No.1 and Karuna Shukla set up by the Bhartiya

Janta Party who emerged as his nearest rival was around

20,000 votes. The appellant who polled 23136 votes then

filed Election Petition No.15 of 2009 before the High Court

of Chhattisgarh at Bilaspur in which he sought a declaration

about his having been elected unopposed apart from a

declaration to the effect that the nomination papers filed

by the rernaining 17 candidates had been improperly and

illegaily accepted. The appellant's case as set out in the

election petition primarily was that the nomination papers

filed by respondents 2 to 18 were incomplete for want of a

proper affidavit required to be filed in terms of the orders

passed by this Court in Union of India v. Association for

Democratic Reforms and Anr. (20021. 5 SCC 294 and the

instructions issued by the Election Commission requiring

the candidates to file such affidavits along with their

nomination papers. The appellant alleged that while he

had filed an affidavit in the prescribed format along with

his nomination papers which was found to be in order by

the Returning Officer, the nomination papers filed by the

remaining candidates were not accompanied by the

requisite affidavits in Form 3 ka (iii) thereby rendering the

nomination papers incomplete, hence liable to be rejected.

An objection to that effect appears to have been raised

even before the Returning Officer, who examined and

rejected the same in terms of his order dated 31st March,

2009. The Returning Officer held that the nomination papers

filed by all the candidates were accompanied by the

requisite affidavits and that there was no deficiency in the

same to justify their rejection. The election petition

questioned the said finding and assailed the order passed

by the Returning Officer as being perverse. The appellant

alleged that in terms of the order passed by this Court in

the judgment referred to above and the directions issued

by the Election Commission the essential information

required to be furnished in the affidavit particularly whether

there were any dues outstanding against the candidate

towards any financial institution or the government had

not been supplied in the requisite format by the candidates

whose nomination papers were accepted which was reason

enough for the rejection of the nomination papers filed by

them and declaration of the appellant-petitioner as having

been elected unopposed to the Lok Sabha from that

constituency.

4. The election petition was contested by the

returned candidate by filing an application under Order VII

Rule 11 of CPC read with Section 86(1) of the, Representation

of People Act, 1951. The application alleged that the petition

did not disclose any cause of action nor were the

provisions of Sections 81 and 82 of the Act cornplied with.

The election petition did not, according to the respondent,

contain any averment regarding the existence of any un-

discharged liability towards any financial institution or the

government nor were material facts stated to disclose a

cause of action.

5. The High Court has, in terms of the order

impugned before us, allowed the said application and

dismissed the election petition holding that the petition

did not indeed disclose any cause of action and was,

therefore, not maintainable. The High Court recorded a

finding that the appellant had not annexed affidavits filed

by other candidates to demonstrate how the same were

not in the format prescribed for the purpose nor was it the

case of the election petitioner that the respondents had

any un-discharged liability towards any financial Institution

or the government for that matter. It also relied upon the

fact that the Returning Officer had in no uncertain terms

recorded a finding that the requirement of filing an affidavit

in support of nomination papers containing the requisite

information in terms of orders passed by this Court had

been complied with in each case and that there was nothing

irregular or deficient in the affidavits or nomination papers

¹Hkkx II—[k.M 3(iii)º

Hkkjr dk jkti=k % ekpZ 16] 2013@iQkYxqu 25] 1934

119

to call for their rejection. The High Court noted that the

returned candidate had also stoutly denied the allegations

that the affidavit filed was not in the prescribed form or

that there was any distortion or concealment of information

in the same.

6. The requirement of filing an affidavit arises from

the decision of this Court in Union of India v. Association

for Democratic Reforms and Anr (supra). This Court had

in that case examined the nature and the extent of

jurisdiction exercised by the Election Commission under

Article 324 of the Constitution and held that the same

was wide enough to include all powers necessary for

smooth conduct of elections and that the word "elections"

was used in a wide sense to include the entire process of

election which comprises several stages and embraces

several steps in that process. This Court held that the

Election Commission could invoke its power under Article

324 till the Parliament brought a suitable legislation on

the subject. This Court recognized the right of the voters

in this country to know about the particulars and

antecedents of the candidates who would represent them

in the Parliament where laws concerning their liberty and

property may be enacted, and declared that the right of

freedom of speech and expression guaranteed under

Article 19(1)(a) of the Constitution would include the

freedom of the voter to cast his vote for which purpose

the voter was entitled to know everything that would

enable him to make the right choice. It was with that

salutary object in mind that this Court issued directions

to the Election Commission to call for information on

affidavit from each one of the candidates seeking election

to the Parliament or the State Legislatures as an essential

part of his nomination papers furnishing therein

information on the following aspects in relation to his/

her candidature:

“(1) Whether the candidate is convicted/acquitted/

discharged of any criminal offence in the past if any,

whether he is punished with imprisontnent or fine.

(2) Prior to six months of filing of nomination,

whether the candidate is accused in any pending

case, of any offence punishable with imprisonment

for two years or more and in which charge is framed

or cognizance is taken by the court of law, If so, the

details thereof,

(3) The assets (immovable, movable, bank balance,

etc.) of a candidate and of his/her spouse and that of

dependants.

(4) Liabilities, if any, particulerly whether there are

any overdues of any public financial institution or

government dues,

(5) The educational qualifications of the candidate.”

7. As a sequel to the above directions the Parliament

amended Representation of People Act, 1951 to introduce

Sections 33-A and 33-B with Representation of People (Third

Amendment) Act 2002. Section 33-A made it obligatory for

every candidate to furnish information whether or not he

has been 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 and whether

he has been convicted of an offence other than those referred

to in sub-section (1) or sub-section (2) or covered in sub-

section (3) of Section 8 and sentenced to imprisonment of

one year or more. Sub-section (2) to Section 33-A required, a

candidate or his proposer to deliver to the Returning Officer

an affidavit sworn by the candidate in the prescribed form

along with nomination papers in which the information

specified above is set out. Section 33-B, however, purported

to neutralise the effect of the directions issued by this Court

in Union of India v. Association for Democratic Reforms and

Anr. (supra) and declared that no candidate shall be liable to

disclose or furnish any information, in respect of his election,

which is not required to be disclosed or furnished under the

Act or the Rules made thereunder. The constitutional validity

of the above additions to the statute was challenged before

this Court in People's Union For Civil Liberties (PUCL) and

Anr. v. Union of India and Anr. (2003) 4 SCC 399. This Court

while upholding the vires of Section 33-A declared Section

33-B to be constitutionally invalid being in violation of Article

19(1)(a) of the Constitution. This Court reiterated the

directions given in Union of India v. Association for

Democratic Reforms and Anr. (supra) and directed the

Election Commission to issue revised instructions keeping

in view the observations made in the judgment delivered by

this Court. This Court also held that the order issued by the

Election Commission relating to the disclosure of assets and

liabilities will continue to hold good and be operative

although direction No.4 in so far as verification of assets

and liabilities by means of a summary enquiry and rejection

of nomination papers on the ground of furnishing wrong

information or suppression of material information was

concerned, the same shall not be enforced. In para 123 (9)

this Court observed:

"(9) The Election Commission has to issue revised

instructions to ensure implementation of Section

33-A subject to what is laid down in this judgment

regarding the cases in which cognizance has been

taken. The Election Commtssion's orders related to

disclosure of assets and liabilities will still hold good

and continue to be operative. However, Direction 4

of para 14 insofar as verification of assets and

liabilities by means of summary enquiry and rejection

of nomination paper on the ground of furnishing

120

THE GAZETTE OF INDIA : MARCH 16, 2013/PHALGUNA 25, 1934

[PART II—SEC. 3(iii)]

wrong information or suppressing material

information should not be enforced. ”

8. Coming to the facts of the present case, the

appellant assailed the election on the ground that the

affidavits filed by the contesting candidates were not in

the prescribed format. This is evident from the averments

made in para 5 of the election petition where the appellant

stated thus:

“5. That, on 31st March, 2009, the petitioner filed an

objection before the Election Officer, Korba, stating

that except the petitioner himself, the nomination

forms of the other candidates are incorrect and invalid

because the other candidates had not filed form

No.3(K)(III) affidavits showing debts/dues of the

Government. Due to not filing the affidavit in the

required prescribed form their candidature become

invalid and deemed to be an incomplete nomination

paper within the meaning of Section 33(A) & 33 (B)

of the representation Act of the people Act, 1961

which reads as under, the same is enclosed with this

petition as 'Annexure P-1’.”

9. To the same effect is para 14A of the election

petition where the appellant has set out the grounds for

setting aside the election of the elected candidate in the

following words:

“A. The nomination papers filed by Respondents

No.2 to 18 were incomplete due to want of proper

affidavit whom Respondent No.1 has accepted and

committed material illegality. Above acceptance are

contrary to Section 100(1)D(I)(N) of Representation

of People Act, 1951 hence liable to be declared

improper and illegal voter voted in their favour would

not have noted in their favour which has materially

affected the result of this petitioner.”

10. In para 14C also the appellant's case was that the

nomination papers could not have been accepted without

an affidavit disclosing the outstanding government dues

as required under the order of this Court in the case of

Union of India v. Association for Democratic Reforms and

Anr. (supra). Suffice it to say that the case pleaded by the

appellant was not one of complete failure of the requirement

of filing an affidavit in terms of the judgment of this Court

and the instructions given by the Election Commission but

a case where even according to the appellant the affidavits

were not in the required format.

11. What is significant is that the election petition

did not make any averment leave alone disclose material

facts in that regard suggesting that there were indeed any

outstanding dues payable to any financial institution or

the government by the returned candidate or any other

candidate whose nomination papers were accepted. The

objection raised by the appellant was thus in the nature of

an objection to form rather than substance of the affidavit,

especially because it was not disputed that the affidavits

filed by the candidates showed the outstandings to be nil.

12. The directions issued by this Court, and those

issued by the Election Commission make the filing of an

affidavit an essential part of the nomination papers, so that

absence of an affidavit may itself render a nomination paper

non-est in the eye of law. But where an affidavit has been

filed by the candidate and what is pointed out is only a

defect in the format of the affidavit or the like, the question

of acceptance or rejection of the paper shall have to be

viewed in the light of sub-section (4) to Section 36 of the

Act which reads:

“36 (4): The returning officer shall not reject any

nomination paper on the ground of any defect which

is not of a substantial character.”

13. Even the instructions issued to the Returning

Officers point out that a nomination paper shall not be

rejected unless the defect is of a substantial character.

The instructions issued to the Returning Officers in the

Hand Book published by the Election Commission

enumerates though not exhaustively,. what can be said to

be grounds for rejection of the nomination papers. Para

10.1 (VII) reads:

“10.1You must reject a nomination paper, if:

xxxxxxxxxxx

(vii) The nomination paper is not substantially in the

prescribed form, or

Xxxxxxxxxxx”

14. From the above it is evident that the form of the

nomination papers is not considered sacrosanct. What is

to be seen is whether there is a substantial compliance of

the requirement as to form. Every departure from the

prescribed format cannot, therefore, be made a ground for

rejection of the nomination paper.

15. In the case at hand, the appellant alleges that the

affidavit did not in the prescribed format state whether the

candidates had any outstanding liabilities qua financial

institutions or the government. Now a departure from the

format may assume some importance if the appellant alleged

that there were such outstanding liabilities which were

concealed by the candidates. That, however, is not the

case of the appellant. Any departure from the prescribed

format for disclosure of information about the dues, if any,

payable to the financial institutions or the government will

not be of much significance, especially when the declaration

made by the returned candidate in his affidavit clearly stated

that no such dues were recoverable from the deponent.

¹Hkkx II—[k.M 3(iii)º

Hkkjr dk jkti=k % ekpZ 16] 2013@iQkYxqu 25] 1934

121

The departure from the format was not, in the

circumstances, of a substantial character on which the

nomination papers of the returned candidate could be

lawfully rejected by the returning officer.

16. 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.

17. In the result this appeal fails and is hereby

dismissed but in the circumstances without any order as to

costs.

......................................................]

(T. S. THAKUR )

New Delhi

July 3, 2012

......................................................]

(GYAN SIDHA MISRA)

[No. 82/CGH/(15/2009)/2011]

(SEAL)

By Order,

TAPAS KUMAR, Principal Secy.

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ORDER

New Delhi, the 14th March, 2013

O.N. 19.—Whereas, the Election Commission of India is satisfied that each of the contesting candidate specified in

column 4 of the Table below at the General Election to the Puducherry Legislative Assembly, 2011 as specified in column 2

and held from the constituency specified in column 3 against his/her name has failed to lodge the account of his/her election

expenses as shown in column 5 of the said Table as required by the Representation of the People Act, 1951 and the Rule

made thererunder;

And whereas, the said candidates have either not furnished any reason or explanation for the said failure even after

due notice by the Election Commission and after considering the representation made by them, if any, the Election Commission

is satisfied that they have no good reason or justification for the said failure;

Now, therefore, in pursuance of Section 10A of the said Act, the Election Commission hereby declares the persons

specified in column 4 of the Table below to be disqualified for being chosen as and for being a member of either House of

Parliament or the Legislative Assembly or Legislative Council of a State or Union Territory for a period of three years from

the date of this order :—

¹Hkkx II—[k.M 3(iii)º

Hkkjr dk jkti=k % ekpZ 16] 2013@iQkYxqu 25] 1934

123

TABLE

Sl. Particulars of Election

Sl. No. and Name of

Name and Address of the

Reasons for

No.

the Legislative

Contesting Candidate

disqualification

Assembly

General Elections to Legislative 3-Ossudu (SC)

M. Pitchekarane @

Failed to lodge any account

Assembly of Puducherry, 2011

Pitchaiappan,

of his election expenses.

No. 27, Gopalankadai

Street, Kalmedupet,

Muthiraiyarpalayam &

Post, Puducherry-605009

-do-

S. T. Cale,

-do-

No. 8, M.G. R. Nagar,

Pillaiyarkuppampet,

Thondamanatham Post,

Puducherry-605502

-do-

5-Villianur

Sivakumar,

-do-

No. 7, Chetty Street,

Dharmapuri, Puducherry.

-do-

Kathirvelu,

-do-

No. 18, Chetty Street,

Dharmapuri,

Puducherry.

-do-

10-Kamaraj Nagar

K. Sakthivelu, No. 6,

-do-

Mariamman Koil Street,

Vadamangalam,

Puducherry-605110

-do-

A. Baskaran,

-do-

No. 35, Valluvanpet,

Poraiyoor Road, Villianur,

Puducherry-605110

-do-

16-Orleampeth

S. Nehru,

-do-

8, 2nd Cross, Iyyanar

Nagar, Puducherry-605013

-do-

M. Nehru,

-do-

51, Mariamman Koil

Street, Pudhupalayampet,

Puducherry-605013

-do-

21-Embalam (SC)

N. Ethirajan,

-do-

136, Indira Nagar,

Kirumampakkam Pet,

Bahour Commune,

Puducherry-607402

[No. 76/PUDU-LA/2011]

By Order,

TAPAS KUMAR, Principal Secy.

Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064

and Published by the Controller of Publications, Delhi-110054.