5696 GI/2016
(277)
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REGD. NO. D. L. (N) 04/0007/2003—05
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PUBLISHED BY AUTHORITY
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WEEKLY
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No. 38]
NEW DELHI, DECEMBER 18—DECEMBER 24, 2016, SATURDAY/AGRAHAYANA 27— PAUSA 3, 1938
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Separate Paging is given to this Part in order that it may be filed as a separate compilation
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PART II—Section 3—Sub-section (iii)
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Orders and Notifications issued by the Central Authorities (Other than the Administrations of Union Territories)
भारत िनवा चन आयोग
भारत िनवा चन आयोग
भारत िनवा चन आयोग
भारत िनवा चन आयोग
नई दली, 14 दस बर, 2016
आ.अ.84-—लोक ितिनिधव अिधिनयम, 1951 (1951 का 43) क! धारा 116(ग) और धारा 106 के अनुसरण म),
भारत िनवा+चन आयोग, वष+ 2016 क! िसिवल यािचका सं. 2649 और 2829 म), भारत के माननीय उ4तम 5यायालय के
दनांक 28 अ6ूबर, 2016 के िनण+य / आदेश और वष+ 2012 क! िनवा+चन यािचका सं. 1 म), दनांक 29 फरवरी, 2016 के
मिणपुर उ4 5यायालय के िनण+य / आदेश को एत=ारा कािशत करता है।
(वष+ 2016 क! िसिवल यािचका सं. 2649 एवं 2829 म), भारत के माननीय उ4तम 5यायालय के दनांक
28.10.2016 के संलA िनण+य / आदेश अिधसूचना के अंBेजी भाग म) छपा है ।)
(वष+ 2012 क! िनवा+चन यािचका सं. 1 म) मिणपुर उ4 5यायालय के दनांक 29.02.2016 के संलA िनण+य / आदेश
अिधसूचना के अंBेजी भाग म) छपा है ।)
[सं. 82/मिणपुर-िवधान सभा/2016]
आदेश से,
EटेGडहोप युहलुंग, धान सिचव
278 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
ELECTION COMMISSION OF INDIA
New Delhi, the 14th December, 2016
O.N. 84.—In pursuance of Section 116(c) and Section 106 of the Representation of the People Act, 1951
(43 of 1951), the Election Commission of India, hereby, publishes the judgement/order of the Supreme Court of India
dated 28th October,2016 in Civil Appeal No.2649 & 2829 of 2016 and the judgement/order of High Court of Manipur
dated 29th February, 2016 in the Election Petition No. 1 of 2012.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2649 of 2016
SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH .... Appellant(s)
Versus
SHRI PUKHREM SHARATCHANDRA SINGH ….Respondent(s)
With
CIVIL APPEAL No. 2829 of 2016
PUKHREM SHARATCHANDRA SINGH .... Appellant(s)
Versus
SRI MAIREMBAM PRITHVIRAJ @ PRITHVIRAJ SINGH
….Respondent(s)
JUDGMENT
L. NAGESWARA RAO, J.
CIVIL APPEAL No. 2649 of 2016
The Appellant has filed this appeal aggrieved by the judgment of the High Court of Manipur at Imphal by which
his election to the Manipur Legislative Assembly from Moirang Assembly constituency was declared as void.
2. A Notification was issued for election to the 10th Manipur Legislative Assembly on 04.01.2012. The Appellant
belonging to the Nationalist Congress Party (NCP) and the Respondent who was sponsored by the Indian National
Congress (INC) filed their nominations within the time prescribed. There was no other nominationfiled.The Respondent
objected to the nomination of the Appellant at the time of scrutiny on the ground that a false declaration relating to
educational qualification was made by the Appellant. The Returning Officer directed the Appellant to submit
documents in proof of his educational qualification as declared in the affidavit filed under Form 26. The Appellant
failed to produce any document to prove his educational qualification in spite of which the Returning Officer
accepted the nomination of the Appellant. Polling took place on 28.01.2012 and the counting of votes was held on
06.03.2012. The result was declared on the same day. The Appellant secured 14,521 votes and the Respondent secured
13,363 votes. The Appellant was declared elected as MLA, Moirang Constituency.
3. The Respondent challenged the election of the Appellant by filing an election petition in the Guwahati High
Court seeking a declaration that the Appellant’s election was null and void, that the Respondent should be declared
as duly elected and that a criminal proceeding should be directed to be initiated against the Appellant under Section
125-A and 127 of the Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’). Apart from the
ground of improper acceptance of nomination, the Respondent also alleged corrupt practices against the Appellant.
4. The Appellant denied the allegation of false declaration. According to the Appellant, the declaration made by him that
he passed Master of Business Administration (MBA) in 2004 from Mysore University was a clerical error. The
Respondent abandoned the allegation of corrupt practices and other electoral malpractices during the trial of the
election petition in the High Court. The High Court framed six issues which are as follows:
(i)
“Whether the Returning Officer of 27th Moirang AC has illegally accepted the nomination paper of the
respondent or not?
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 279
(ii)
Whether the election of the respondent had been materially affected by the acceptance of the nomination paper
of the respondent by the R.O. of 27th Moirang A/C or not?
(iii) Whether the respondent had filed false affidavit in respect of the highest education qualification in the Form,
in which the respondent had mentioned “MBA Mysore University” or whether it was merely a clerical error?
(iv) Whether the petition lacks material facts or not?
(v)
Whether the election petition is liable to be dismissed for not putting the words “attested to be true copy of the
petition” on each and every page of the petition by the petitioner himself or not; or on any of the defects
raised by the respondent in his written statement?
(vi) Whether the petitioner is entitled to the relief claimed in the writ petition?”
5. Issue No. 5 pertains to attestation of the petition not being made properly. The objection raised by the Appellant
to the maintainability of the election petition was that only the front page of the election petition had the words “Attested
to be true copy.” Issue No. 5 was answered in favour of the Respondent. The High Court considered the main
controversy pertaining to the filing of false affidavit regarding the educational qualification by the Appellant in a
detailed manner. There is no doubt that the Appellant filed Form 26 in which he mentioned his educational
qualification as MBA from Mysore University in 2004. After careful consideration of the material on record and
various judgments cited by the parties, the High Court concluded that the declaration made by the Appellant in
Form 26 about his educational qualification as MBA from Mysore University was false. The plea of the Appellant that
the defect in Form 26 was due to a clerical error was rejected. The contention of the Appellant that providing
wrong information about the educational qualification was not a defect of substantial character was also rejected.
The Appellant contended that the Respondent failed to plead and prove that the result was ‘materially affected’ as
required under Section 100 (1) (d) of the Act. The High Court did not accept the said contention on the ground that
there were only two candidates in the fray in which case it was not necessary to prove that the result of election of
the returned candidate was materially affected. The High Court further held if it is found that the Appellant’s
nomination was improperly accepted, the result of his election stood automatically affected materially. The High Court
on the basis of the above reasons declared the election of the Appellant as void. The Appellant has filed this appeal
challenging the same.
6. We have heard Mr. V. Giri, learned Senior Counsel for the Appellant and Ms. Meenakshi Arora, learned Senior
Counsel for the Respondent. Mr. Giri submitted that the declaration pertaining to the educational qualification of
the Appellant was merely a clerical error and cannot be termed as a false declaration. In any event, the declaration
of educational qualification is not a defect of substantial nature warranting rejection of his nomination. Mr. Giri also
submitted that the election petition was filed under Section 100 (1) (d) (i) and (iv) of the Act. He stated that there is
neither pleading nor proof in the election petition that the improper acceptance of the Appellant’s nomination had
materially affected the result. According to Mr. Giri, the Appellant’s election cannot be set aside on the ground of
improper acceptance of his nomination without the requirement of Section 100 (1) (d) of the Act being satisfied.
He referred to Durai Muthuswami v. N. Nachiappan and Ors. reported in 1973 (2) SCC 45 and submitted that the
said judgment should be restricted to the facts of that case. He also attempted to distinguish the said judgment as not
applicable to the facts of this case by submitting that it was a case of disqualification under Section 9-A of the Act.
He further submitted that the said case was one filed under Section 100 (1) (a) of the Act. He contended that there is no
need for pleading or proving that the result was materially affected if the election is challenged under Section 100 (1)
(a) to (c) whereas it is compulsory in a petition filed under Section 100 (1) (d).
7. Ms. Meenakshi Arora, learned Senior Counsel, argued that the Respondent pleaded in the election petition that
the result of the election was materially affected by the improper acceptance of the nomination of the Appellant.
She took us through the pleadings and evidence, both oral and documentary, to contend that the declaration of
educational qualification by the Appellant was not a mistake. She submitted that the same declaration was made by
the Appellant even when he contested the earlier election to the Legislative Assembly in 2008. She also highlighted
the contradictory stands relating to the declaration taken by the Appellant. She submitted that it was not necessary to
show that the result of the election was materially affected when there were only two contesting candidates for
one seat. She relied upon the judgment in Durai Muthuswami (supra) which according to her, was approved in Jagjit
Singh v. Dharam Pal Singh, reported in 1995 Supp (1) SCC 422. She further relied upon Union of India v.
Association for Democratic Reforms, reported in 2002 (5) SCC294, People’s Union for Civil Liberties (PUCL)
v. Union of India, reported in 2003 (4) SCC 399, Kisan Shankar Kathore v. Arun Dattatray Sawantc
reported in 2014 (14) SCC 162 and Resurgence India v. Election Commission of India and Anr. reported in
2014 (14) SCC 189 in support of hersubmission that a voter has a right to know about theeducational
qualification of the candidate and any false or mis-declaration wouldresult in rejection of the nomination of the
candidate. Ms. Meenakshi Aroraalso cited Hari Krishna Lal v. Babu Lal Marandi reported in 2003 (8) SCC613 to
contend that the false declaration relating to the educational qualification of a candidate is a defect of substantial
character.
8. Two issues fall for our consideration in this appeal which are:
280 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
(a) Whether a false declaration relating to the educational qualification is adefect of substantial character
warranting rejection of a nomination?
(b) Whether it is necessary to plead and prove that the result was materiallyaffected when the nomination of the
returned candidate was found to havebeen improperly accepted, moreso, when there are only two
candidates contesting the election?
9. Chapter I of Part V of the Act deals with the nomination of candidates. Section 33 of the Act provides for
presentation of nomination paper andrequirements of a valid nomination. A nomination paper complete in
theprescribed form, signed by a candidate and by an elector of theconstituency as proposer should be delivered
to the Returning Officerwithin the prescribed period. Section 33-A which was inserted by Act 72of 2002 with effect
from 24.08.2002 contemplates that a candidate has to provide additional information, apart from the information
provided by him under Section 33 (1). The information mentioned in Section 33-A relates to the criminal antecedents
of a candidate. Section 36 deals with scrutiny of nomination. Section 36(4) which is relevant for adjudication of this
case is as follows:
“36. Scrutiny of nomination. – (4) The Returning Officer shall not reject any nomination paper on the ground of
any defect which is not of a substantial character.”
10. Rule 4 (A) of the Conduct of Election Rules, 1961 which was inserted with effect from 03.09.2002 reads as under:
“[4A. Form of affidavit to be filed at the time of delivering nomination paper.—The candidate or his
proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper
under sub section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form 26.]”
11. A candidate has to file an affidavit along with his nomination paper as prescribed in Form 26 in which one of
the columns pertains to the educational qualification. Grounds for declaring the election to be void are provided in
Section 100 of the Act which is as under:
“100. Grounds for declaring election to be void.—
[(1) Subject to the provisions of sub-section (2) if 3 [the High Court] is of opinion—
(a)
that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen
to fill the seat under the Constitution or this Act 9 [or the Government of Union Territories Act, 1963
(20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other
person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate 1 [by an agent other than
his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void,
or
(iv) by any non—compliance with the provisions of the Constitution or of this Act or of any rules or
orders made under this Act,
[the High Court] shall declare the election of the returned candidate to be void.]
[(2)] If in the opinion of 2 [the High Court], a returned candidate has been guilty by an agent, other than his
election agent, of any corrupt practice 4 *** but 2 [the High Court] is satisfied—
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every
such corrupt practice was committed contrary to the orders, and 5 [without the consent], of the candidate or
his election agent;
6 * * * * *
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt
7 *** practices at the election; and
(d) that in all other respects the election was free from any corrupt 7 *** practice on the part of the candidate or
any of his agents,
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 281
then 2 [the High Court] may decide that the election of the returned candidate is not void.”
12. Section 125-A prescribes penalty for filing false affidavit which is reproduced as under:
“[125A. Penalty for filing false affidavit, etc.—
A candidate who himself or through his proposer, with intent to be elected in an election,—
(i)
fails to furnish information relating to sub-section (1) of section 33A; or
(ii)
give false information which he knows or has reason to believe to be false; or
(iii) conceals any information, in his nomination paper delivered under sub- section (1) of section 33 or in his
affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall,
notwithstanding anything contained in any other law for the time being in force, be punishable with
imprisonment for a term which may extend to six months, or with fine, or with both.]”
13. Sir Winston Churchill underlining the importance of a voter in a democratic form of Government stated as follows:
“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil,
making a little cross on a little bit of paper — no amount of rhetoric or voluminous discussion can possibly diminish
the overwhelming importance of the point.”
14. In Union of India v. Association for Democratic Reforms (supra) this Court held that the voter has a fundamental
right to information about the contesting candidates. The voter has the choice to decide whether he should cast a
vote in favour of a person involved in a criminal case. He also has a right to decide whether holding of an educational
qualification or holding of property is relevant for electing a person to be his representative. Pursuant to the
judgment in Union of India v. Association for Democratic Reforms (supra) Section 33-A was inserted in the
Representation of the People Act providing for right to additional information by an Ordinance. The challenge to
the said Ordinance was dealt with by this Court in People’s Union for Civil Liberties (PUCL) v. Union of India
(supra) in which it was held as follows:
“78. What emerges from the above discussion can be summarised thus:
(D) The contention that as there is no specific fundamental right conferred on a voter by any statutory provision
to know the antecedents of a candidate, the directions given by this Court are against the statutory provisions
is, on the face of it, without any substance. In an election petition challenging the validity of an election of a
particular candidate, the statutory provisions would govern respective rights of the parties. However, voters'
fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law.
A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred
by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their
votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the
citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to
public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have
competent legislatures.”
15. It is relevant to mention that the Election Commission of India issued a press note on 28.06.2002 in which there
was a reference to the judgment of this Court in Union of India v. Association for Democratic Reforms in which it was
held that information on five aspects has to be provided to the voter. One of the five aspects pertains to the
educational qualification of the candidates. An order was issued by the Election Commission of India on 28.06.2002
directing that full and complete information relating to the five aspects which were mentioned in the judgment has to
be furnished. Providing incomplete information or suppression of material information on any of the five aspects was
to be treated as a defect of substantial character by the Returning Officers.
16. In Resurgence India v. Election Commission of India and Anr. (supra) this Court held that every candidate is
obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities
and educational qualification. The fundamental right under Article 19 (1) (a) of the voter was reiterated in the said
judgment and it was held that filing of affidavit with blank particulars would render the affidavit as nugatory. In
Kisan Shankar Kathore v. Arun Dattatray Sawant reported in 2014 (14) SCC page 162 this Court considered the
question as to whether it was incumbent upon the Appellant to have disclose the information sought for in the
nomination form and whether the non- disclosure thereof render the nomination invalid and void. It was held that
non-furnishing of the required information would amount to suppression/non-disclosure.
17. It is clear from the law laid down by this Court as stated above that every voter has a fundamental right to know
about the educational qualification of a candidate. It is also clear from the provisions of the Act, Rules and Form 26
that there is a duty cast on the candidates to give correct information about their educational qualifications. It is not
in dispute that the Appellant did not study MBA in the Mysore University. It is the case of the Appellant that reference
282 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
to MBA from Mysore University was a clerical error. It was contended by the Appellant that he always thought of
doing MBA by correspondence course from Mysore University. But, actually he did not do the course. The
question which has to be decided is whether the declaration given by him in Form 26 would amount to a defect of
substantial nature warranting rejection of his nomination. Section 36 (4) of the Act mandates that the Returning
Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial character. The
declaration made by the Appellant in Form 26, filed in 2012 is not a clerical error as contended by him. The Appellant
contested election to the same constituency in 2008 and in the affidavit filed by him in Form 26 he declared that he
passed MBA from Mysore University in 2004. In the affidavit filed by him in this election petition by way of
examination-in-chief, the Appellant stated that his nomination paper and the enclosed affidavit were prepared and
filed by his counsel Chakpam Bimolchandra Singh on the instructions of his agent Ph. Shamu Singh. He also stated
that his counsel filled the prescribed affidavit in his own hand-writing. The Appellant also stated that he signed
the affidavit without reading the contents and he came to know about the error only when the Respondent raised his
objection to the nomination. The Appellant further stated that he was working in Projeon, Infosys Company and IBM
till 2007 and because of his job many local friends and elders thought that he was an MBA degree-holder. His election
agent also thought that he was holding an MBA degree due to which he instructed the Advocate Chakpam
Bimolchandra Singh to fill up column 9 of the affidavit by stating that the Appellant is an MBA degree-holder. In
his cross-examination, the Appellant gave evasive replies to the questions relating to his educational qualification.
He stated that he does not remember whether he had undergone MBA from Mysore University and he does not
remember whether he possesses MBA degree. Chakpam Bimolchandra Singh who was examined as DW-3 in his
cross-examination denied having filled up the entries in Form 26. He stated that he entered the educational
qualifications of the Appellant on the basis of instructions given by the election agent Shamu Singh. He also stated
that he was not present before the Oath Commissioner when the Appellant signed the affidavit.
18. The contention of the Appellant that the declaration relating to his educational qualification in the affidavit is a
clerical error cannot be accepted. It is not an error committed once. Since 2008, the Appellant was making the
statement that he has an MBA degree. The information provided by him in the affidavit filed in Form 26 would
amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial. He
was given an opportunity by the Returning Officer to produce the relevant document in support of his declaration. At
least at that point of time he should have informed the Returning Officer that an error crept into the declaration. He did
not do so. The false declaration relating to his educational qualification cannot be stated to be not of a substantial
character. It is no more res integra that every candidate has to disclose his educational qualification to subserve the
right to information of the voter. Having made a false declaration relating to his educational qualification, the
Appellant cannot be permitted to contend that the declaration is not of a substantial character. For the reasons
stated supra, we uphold the findings recorded by the High Court that the false declaration relating to the educational
qualification made by the Appellant is substantial in nature.
19. Having answered the first question against the Appellant, we proceed now to deal with the next point. Section
100 (1) (a) to (c) deals with disqualification, corrupt practices and improper rejection of nominations respectively
which are grounds for setting aside the election. The sine qua non for setting aside an election under Section 100 (1) (d)
is that the result of the election, in so far as it concerns a returned candidate, has been materially affected. The
contention of Mr. Giri, learned Senior Counsel for the Appellant is that even if it is held that the nomination of the
appellant was improperly accepted, his election cannot be set aside in the absence of any pleading or proof that the
result was materially affected by the improper acceptance of the nomination. He relied upon Magani Lal Mandal
v. Bishnu Deo Bhandari, reported in 2012 (3) SCC page 314 to contend that every defect cannot be a ground for
setting aside an election under Section 100 (1) (d) without further proof that it had materially affected the result of
the returned candidate. He also referred to Shambhu Prasad Sharma v. Charandas Mahant and Ors. reported in
2012 (11) SCC page 390 in which it was held as follows:
“20. Coming to the allegation that other candidates had also not submitted affidavits in proper format, rendering
the acceptance of their nomination papers improper, we need to point out that the appellant was required to not
only allege material facts relevant to such improper acceptance, but further assert that the election of the
returned candidate had been materially affected by such acceptance. There is no such assertion in the election
petition. Mere improper acceptance assuming that any such improper acceptance was supported by assertion of
material facts by the appellant-petitioner, would not disclose a cause of action to call for trial of the election
petition on merit unless the same is alleged to have materially affected the result of the returned candidate.”
20. There is no dispute that an election cannot be set aside on the ground of improper acceptance of any nomination
without a pleading and proof that the result of the returned candidate was materially affected. The point to be
considered is whether the law as laid down by this Court relating to the pleading and proof of the fact of the result of
the returned candidate being materially affected applies to a case where the nomination of the returned candidate is
declared to have been improperly accepted. A situation similar to the facts of this case arose for consideration of this
Court in Durai Muthuswami’s case. It is necessary to deal with this case in detail as the Counsel for the Appellant
submitted that the said judgment is not applicable to the facts of the present case and that finding in the said case have
to be treated as obiter.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 283
21. The facts, in brief, of the case of Durai Muthuswami are that the Petitioner in the election petition contested in
the election to the Tamil Nadu Legislative Assembly from Sankarapuram constituency. He challenged the election of
the First Respondent on the grounds of improper acceptance of nomination of the returned candidate, rejection of 101
postal ballot papers, ineligible persons permitted to vote, voting in the name of dead persons and double voting. The
High Court dismissed the election petition by holding that the Petitioner failed to allege and prove that the result of
the election was materially affected by the improper acceptance of the nomination of the First Respondent as required
by Section 100 (1) (d) of the Act. The Civil Appeal filed by the Petitioner therein was allowed by this Court in Durai
Muthuswami (supra) in which it was held as follows:
“3. Before dealing with the question whether the learned Judge was right in holding that he could not go into
the question whether the 1st respondent's nomination has been improperly accepted because there was no
allegation in the election petition that the election had been materially affected as a result of such improper
acceptance, we may look into the relevant provisions of law. Under Section 81 of the Representation of the
People Act, 1951 an election petition calling in question any election may be presented on one or more of the
grounds specified in sub-section (1) of Section 100 and Section 101. It is not necessary to refer to the rest of the
section. Under Section 83(1) (a), insofar as it is necessary for the purpose of this case, an election petition
shall contain a concise statement of the material facts on which the petitioner relies. Under Section 100(1) if
the High Court is of opinion— (a) that on the date of his election a returned candidate was not qualified, or
was disqualified, to be chosen to fill the seat under the Constitution or this Act ….
(b)-(c) * * *
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
(ii)-(iii) * * *
the High Court shall declare the election of the returned candidate to be void. Therefore, what Section 100
requires is that the High Court before it declares the election of a returned candidate is void should be of opinion
that the result of the election insofar as it concerns a returned candidate has been materially affected by the
improper acceptance of any nomination. Under Section 83 all that was necessary was a concise statement of the
material facts on which the petitioner relies. That the appellant in this case has done. He has also stated that the
election is void because of the improper acceptance of the 1st respondent's nomination and the facts given
showed that the 1st respondent was suffering from a disqualification which will fall under Section 9-A. That
was why it was called improper acceptance. We do not consider that in the circumstances of this case it was
necessary for the petitioner to have also further alleged that the result of the election insofar as it concerns the
returned candidate has been materially affected by the improper acceptance of the 1st respondent's nomination.
That is the obvious conclusion to be drawn from the circumstances of this case. There was only one seat to
be filled and there were only two contesting candidates. If the allegation that the 1st respondent's
nomination has been improperly accepted is accepted the conclusion that would follow is that the appellant
would have been elected as he was the only candidate validly nominated. There can be, therefore, no dispute that
the result of the election insofar as it concerns the returned candidate has been materially affected by the
improper acceptance of his nomination because but for such improper acceptance he would not have been able
to stand for the election or be declared to be elected. The petitioner had also alleged that the election was void
because of the improper acceptance of the 1st respondent's nomination. In the case of election to a single-
member constituency if there are more than two candidates and the nomination of one of the defeated candidates
had been improperly accepted the question might arise as to whether the result of the election of the returned
candidate had been materially affected by such improper reception. In such a case the question would arise as to
what would have happened to the votes which had been cast in favour of the defeated candidate whose
nomination had been improperly accepted if it had not been accepted. In that case it would be necessary for the
person challenging the election not merely to allege but also to prove that the result of the election had been
materially affected by the improper acceptance of the nomination of the other defeated candidate. Unless he
succeeds in proving that if the votes cast in favour of the candidate whose nomination had been improperly
accepted would have gone in the petitioner's favour and he would have got a majority he cannot succeed in his
election petition. Section 100(1)(d)(i) deals with such a contingency. It is not intended to provide a convenient
technical plea in a case like this where there can be no dispute at all about the election being materially
affected by the acceptance of the improper nomination. “Materially affected” is not a formula that has got to be
specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere
repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an
election can be declared to be void and the allegations that are necessary in an election petition in respect of
such a ground. The petitioner had stated the ground on which the 1st respondent's election should be declared to
be void. He had also given the material facts as required under Section 83(1)(a). We are, therefore, of opinion
that the learned Judge erred in holding that it was not competent for him to go into the question whether the 1st
respondent's nomination had been improperly accepted.” (Underlining ours)
284 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
22. It is clear from the above judgment that there is a difference between the improper acceptance of a nomination of
a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference
between cases where there are only two candidates in the fray and a situation where there are more than two
candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to
have been improperly accepted, it is essential that the election Petitioner has to plead and prove that the votes polled
in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of
nomination is of the returned candidate, there is no necessity of proof that the election has been materially
affected as the returned candidate would not have been able to contest the election if his nomination was not
accepted. It is not necessary for the Respondent to prove that result of the election in so far as it concerns the returned
candidate has been materially affected by the improper acceptance of his nomination as there were only two
candidates contesting the election and if the Appellant’s nomination is declared to have been improperly accepted, his
election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to
be declared elected. The judgment of this Court in Durai Muthuswami (supra) was referred to in Jagjit Singh v.
Dharam Pal Singh, 1995 Supp (1) SCC 422 page 429 in which it was held as follows:
“21. The trial Judge has held that since there is no averment in the petition that the result of the election was
materially affected by improper rejection or acceptance of votes, it is devoid of cause of action.We are unable to
agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may
be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election
has been materially affected and that Section 100(1)(d) of the Act is not intended to provide a convenient
technical plea in a case where there can be no dispute at all about the result of the election being materially
affected by the alleged infirmity. (See: Durai Muthuswami v. N. Nachiappan [(1973) 2 SCC 45 : (1974) 1 SCR
40] .) In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes
only. From the various averments in the election petition it was evident that the number of valid votes of the
appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained
in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the
election petition the result of this election, insofar as it concerns the returned candidate, would be materially
affected.”
It was held by this Court in Vashist Narain Sharma v. Dev Chandra, reported in 1955 (1) SCR 509 as under:
“9. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance
of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the
question can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference
between the returned candidate and the candidate securing the next highest number of votes,
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly accepted is the returned candidate himself. It is agreed
that in the first case the result of the election is not materially affected because if all the wasted votes are added
to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned
candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as
the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared
to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned
candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the
result of the election has been materially affected. That is a matter which has to be proved and the onus of
proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have
gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is
not possible for any one to predicate how many or which proportion of the votes will go to one or the other of
the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult
situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without
evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable
the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere
in his favour and would allow the election to stand.” (Underlining ours).
This Court in Kisan Shankar Kathore v. Arun Dattatray Sawant (supra) dealt with a situation similar to that of this case.
In that case, the election of the returned candidate was successfully challenged on the ground of non- disclosure of
material information. The appeal filed by the returned candidate was dismissed by this Court by observing as
follows:
“Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of
material information, one can state that question of rejection in such a case was only deferred to a later date.
When the Court gives such a finding, which would have resulted in rejection, the effect would be same,
namely, such a candidate was not entitled to contest and the election is void.”
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 285
23. Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that
the election is void under Section 100 (1) (d). There has to be further pleading and proof that the result of the election
of the returned candidate was materially affected. But, there would be no necessity of any proof in the event of the
nomination of a returned candidate being declared as having been improperly accepted, especially in a case where
there are only two candidates in the fray. If the returned candidate’s nomination is declared to have been improperly
accepted it would mean that he could not have contested the election and that the result of the election of the returned
candidate was materially affected need not be proved further. We do not find substance in the submission of Mr.
Giri that the judgment in Durai Muthuswami (supra) is not applicable to the facts of this case. The submission that
Durai Muthuswami is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of
this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non-
compliance of Section 100 (1) (d). The said judgment squarely applies to this case on all fours. We also do not find
force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void
under Section 100 (1) (d) without pleading and proof that the result of the election was materially affected. There
is no requirement to prove that the result of the election of the returned candidate is materially affected once his
nomination is declared to have been improperly accepted.
24. For the aforementioned reasons, the Civil Appeal is dismissed. No costs.
Civil Appeal No. 2829 of 2016
25. This appeal is filed by the Petitioner in the election petition challenging that part of the judgment dated
29.02.2016 of the High Court Manipur at Imphal, by which the relief that he should be declared to be elected was
rejected. The Appellant contested the election as a candidate of the Nationalist Congress Party (NCP). Respondent
No.1 was declared to have been elected on 28.01.2012. The election of the First Respondent was set aside by the
High Court in the election petition filed by the Appellant. The Appellant also sought for a relief that he should
be declared to have been elected. Such relief was rejected by the High Court.
Hence, this appeal.
26. After the result of the election was declared on 28.01.2012, the Appellant resigned from NCP and joined Bhartiya
Janta Party (BJP). To a question posed by the Court during the recording of his evidence, the Appellant stated that
he tendered resignation from NCP in the latter part of 2013, that he joined BJP and he continued to be a member of the
BJP. In January, 2016, the Appellant filed an application for amendment to the election petition. He intended to
insert additional submissions relating to his expulsion from NCP on 23.12.2013 and the representation made by him
to the President NCP Manipur to cancel the expulsion order. He also wanted to bring on record the fact that his
enrolment to the membership of BJP was rejected on 18.01.2016. He further stated in the application that the order
of expulsion by the NCP was revoked by an order dated 21.01.2016.
27. The arguments in the election petition filed by the Appellant were concluded on 25.02.2016. The High Court
recorded a finding in the impugned judgment that all the pending miscellaneous applications were disposed of with the
consent of both sides and the election petition was to be adjudicated on the basis of existing material on
record. As the miscellaneous application filed by the Appellant was not considered, the High Court decided the
matter on the basis of the material on record which clearly showed that the Appellant resigned from NCP and joined
BJP. After a careful consideration of the material on record, the High Court refused to grant the declaration as sought
by the Appellant. The High Court held that having joined BJP, the Appellant was not entitled for a declaration as he
contested the election in 2012 on behalf of NCP. The High Court highlighted the fact that the Appellant will be an
MLA belonging to BJP, if declared elected after having contested the election on behalf of the NCP. Taking into
account the spirit of law as expressed in paragraph No. 2 of the 10th Schedule of the Constitution of India the High
Court did not grant the relief sought by the Appellant that he should be declared elected.
28. Ms. Meenakshi Arora, learned Senior Counsel appearing for the Appellant submitted that the 10th Schedule to the
Constitution is not applicable to adjudication of an election petition. She relied upon Section 53 (2) of the Act to
contend that the Appellant should be declared as duly elected as he was the only person remaining in the fray after
the election of respondent/returned candidate was declared void. Section 101 of the Act provides for declaration of
the Petitioner to have been duly elected if the High Court is of the opinion that the Petitioner received majority of the
valid votes.
29. According to Section 80 (A) of the Act, the High Court will have the jurisdiction to try an election petition. It is
well settled law that the High Court hearing an election petition is not an ‘authority’ and that it remains the High
Court while trying an election petition under the Act. (See T. Deen Dayal v. High Court of A.P., 1997 (7) SCC
535 at page 540. This Court in Hari Shanker Jain v. Sonia Gandhi, 2001 (8) SCC 233 at page 244 upheld the
decision of a Full Bench of the Rajasthan High Court wherein it was decided that the jurisdiction of the High Court to
try an election petition is not by way of constituting a special jurisdiction and conferring it upon the High Court.
It is an extension of the original jurisdiction of the High Court to hear and decide the election disputes. It is clear
286 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
from the above judgments of this Court that the inherent power of the High Court is not taken away when the
election disputes are adjudicated. Section 53 (2) is a power conferred on the Returning Officer to declare a candidate
elected when the number of candidates is equal to the number of seats to be filled. The power of the High Court is
not fettered by Section 53 (2). The High Court has taken into consideration an anomalous situation that would arise by a
candidate belonging to one party being declared elected after having crossed the floor. We are in agreement with the
High Court and we do not intend to interfere with the discretion exercised by the High Court.
30. For the aforesaid reasons, the Civil Appeal is dismissed. No order as to
costs.
.…............Sd/................J.
[ANIL R. DAVE]
................Sd/-................J.
[L. NAGESWARA RAO]
New Delhi,
October 28, 2016
ITEM NO.–B
COURT NO.1
SECTION XVII
(For Judgment)
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Civil Appeal No (s). 2649/2016
SRI MAIREMBAM PRITHVIRAJ @ PRITHIBIRAJ SINGH
Appellant (s)
Versus
SHRI PUKHREM SHARATCHANDRA SINGH
Respondent(s)
WITH C.A. No. 2829/2016
Date : 28/10/2016 These appeals were called on for pronouncement fo judgment today
For Appellant (s)
Mr. Sapam Biswajit Meitei, Adv.
(C.A. No. 2649/2016)
Mr. Naresh Kumar Gaur, Adv.
Mr. Linthoingambi Thongam, Adv.
Ms. Punam Kumari, Adv.
(C.A. No. 2829)
Ms. Meenakshi Arora, Sr. Adv.
Mr. Lenin Hijam, Adv.
Mr. Pratik R. Mombarde, Adv.
Mr. A.D. Tamboli. Adv.
Mr. Vasav V. Adv.
Mr. S. Gowthaman, Adv.
For Respondent(s)
Ms. Meenakshi Arora, Sr. Adv.
Mr. Lenin Hijam, Adv.
Mr. Pratik R. Mombarde, Adv.
Mr. A.D. Tamboli. Adv.
Mr. Vasav V. Adv.
Mr. S. Gowthaman, Adv.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 287
Mr. Sapam Biswajit Meitei, Adv.
Mr. Naresh Kumar Gaur, Adv.
Mr. Linthoingambi Thongam, Adv.
Ms. Punam Kumari, Adv.
Hon’ble Mr. Justice L. Nageswara Rao Pronounced the Judgment of the Bench comprising Hon’ble Mr. Justice
Anil R. Dave and His Lordship.
In terms of the signed reportable judgment, these appeals are dismissed. No. costs.
(MAHABIR SINGH)
(VEENA KHERA)
COURT MASTER
COURT MASTER
(Signed Reportable Judgment is placed on the file)
IN THE HIGH COURT OF MANIPUR AT IMPHAL
Election Petition No.1 of 2012
Shri Pukhrem Sharatchandra Singh, aged about 63 years, S/o (L) P.Koiremba Singh,
Phairembam Leikai, Moirang, P.O. & P.S. Moirang, Bishnupur District, Manipur-
795133
..... Petitioner
-Versus-
Sri Mairembam Prithviraj @ Prithibiraj Singh, aged about
36 years, s/o (L) M.Manindra Singh, Moirang Kiyam Leikai, P.O. & P.S. Moirang,
Bishnupur District, Manipur-795133.
...... Respondent
BEFORE
THE HON’BLE MR.JUSTICE N. KOTISWAR SINGH
For the election petitioner
:
Mr. N. Kumarjit, Sr. Adv.
Mr. N. Surendrajit, Adv.,
Mr.P.Tamphamani, Adv.
For the respondent
:
Mr. V. Giri, Senior Adv.,
Mr.H. Ishwarlal, Adv.
Ms.
Punam
Kumari,
Adv.,
Mr.
Sapam
Biswajit,
Adv.,
Mr. Manav Vohra, Adv.
Dates of hearing
:
22.02.2016, 23.02.2016,
24.02.2016, 25.02.2016. Date of
reserving judgment
:
25.02.2016
Date of Judgment and order
:
29.02.2016
JUDGEMENT AND ORDER(CAV)
Heard Mr. N. Kumarjit, learned Senior counsel assisted by Mr. N. Surendrajit, Advocate and Mr. P.
Tamphamani, Advocate for the election petitioner. Heard Mr. V. Giri, learned Senior counsel assisted by Ms. Punam
Kumari, Advocate, Mr. Sapam Biswajit, Advocate, Mr. Manav Vohra, Advocate and heard also Mr. H. Ishwarlal,
learned counsel appearing for the respondent/returned candidate.
2. The petitioner who had contested as a Nationalist Congress Party (NCP) candidate from the 27th Moirang
Assembly Constituency in the 10th Assembly Election held in 2012 has challenged the election of the respondent
288 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
who had successfully contested the election as an Indian National Congress (INC) candidate and seeking declaration of
his election as void under Section 100(1)(d)(i) of the Representation of the People Act, 1951 (hereinafter referred
to as the “RP Act/Act”).
3. The gravamen of the complaint of election petitioner as pleaded in the election petition is filing of
false affidavit by the respondent at the time of submission of nomination paper which according to the
petitioner would entail in rejection of his nomination paper and, indulging in corrupt practices and electoral
malpractices inviting disqualification. Of the aforesaid 2 (two) grounds raised, the election petitioner has abandoned
the allegations of electoral malpractices and corrupt practices and has focussed his assailment on the filing of
false affidavit which according to the election petitioner would render the nomination paper materially
defective and hence, though was liable to be rejected under Section 36(2)(b) of the Act, was improperly accepted,
thus, rendering it fit for declaring the election of the respondent as void under Section 100(1)(d)(i) of the RP Act.
4. The 10th Assembly Election of the Manipur which was notified on 4.01.2012 was held on 28.01.2012.
The scrutiny of the nomination papers was held on 12.01.2012. The petitioner states that at the time of scrutiny of the
nomination papers, the petitioner raised objections to the nomination paper submitted by the respondent and sought for
rejecting his nomination paper on 3 (three) grounds, viz.:
(i) that the respondent failed to file proper affidavit prescribed under Article 173 of the Constitution of
India;
(ii) that the affidavit filed by the respondent was a false one, as he had falsely deposed at para No.9
of his affidavit dated 06.01.2012 submitted along with the nomination paper that his highest educational
qualification is “MBA, 2004, Mysore University” which according to the petitioner is false and, that the
respondent at para No. 5 had put the word “Nil” in respect of residential building and concealed
parts of his homestead land and structure;
(iii) that the affidavit was filed without subscribing oath or affirmation before the Returning Officer.
5. The petitioner claims that in view of the aforesaid defects and false information provided in the affidavit
filed by the respondent along with the nomination paper the petitioner requested the Returning Officer for rejecting the
nomination paper of the respondent. On such objection being raised, the Returning Officer directed the respondent to
furnish/produce the documents in support of his affidavit pertaining to passing of MBA in 2004 from Mysore University
on the next date of the scrutiny on 13.01.2012. On the next date fixed on 13.01.2012, the respondent failed to file the
relevant documents in support of his educational qualification mentioned. However, the Returning Officer illegally
accepted the nomination paper. The petitioner claims that he subsequently obtained necessary information from the
University of Mysore about the aforesaid qualification claimed by the respondent and came to know that the respondent
was never a student of MBA from Mysore University in the year 2004-05.
6. The respondent was declared elected after the respondent got 14521 votes whereas the petitioner got only 13363
votes when the result was declared on 06.03.2012.
7. The petitioner claims that he submitted representations on 02.04.2012 and 05.04.2012 before the Returning
Officer, 27th Moirang Assembly Constituency seeking for summary proceeding on the objection raised by him as
mentioned above. However, as nothing materialised, the petitioner preferred this election petition challenging the
election of the respondent and seeking declaration of the election of the respondent as void.
8. The respondent/returned candidate filed his written statement contesting the averments and allegations
made in the petition. In his written statement, the respondent had stated that the entry made as regards the
educational qualification was a clerical error. He states that he passed B.A. (Honours) in History from Kirori Mal
College, Delhi University in 2001 and PG Programme in Service Industry Management which is a 1 year course from
August, 2003 July, 2004 from the Institute of Tourism and Future Management Trends under NEC, Govt. of India
Special Employment Generation Employment Programme in Service Industry at ITFT, Chandigarh. Thereafter, he
worked at Progeon and Infosys and IBM till 2007. It has been stated in his written statement that the word
Mysore used was a clerical mistake and it was a “thought processing ” of the respondent to obtain MBA degree from
University of Mysore through correspondence course as the same was discussed amongst friends and supporters that
nowadays people should do MBA courses and there are colleges in Karnataka providing correspondence course
facilities. And this thought process emerged in the mind and continued in the wrong depiction of the word. As such it
was contended that it was merely a clerical mistake and there was no question of giving any false declaration in
respect of any academic qualification as in any case he was neither going to gain nor lose anything by it.
Accordingly, when this was explained to the Returning Officer, the objection raised by the election petitioner before
Returning Officer was rejected as it was not of a substantial nature. It is provided under Section 36(4) of the RP
Act, 1951 that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not
of a substantial character. It has been also pleaded that even if the allegations of the petitioner are deemed
correct, the same do not fall within the meaning of corrupt and malpractices as defined under the Act.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 289
The respondent in his written statement counter charged that the election petition is defective being
violative of Section 81(3) of the RP Act, 1951. It has been stated that every page except the first page of the
copy of the election petition furnished to the respondent bears only the signature of the petitioner mentioning
“Attested” though as per Section 81(3) of the Act each and every copy of the petition is to be attested by the
petitioner under his own signature to be a true copy of the petition. Hence, it has been contended that the election
petition is liable to be dismissed as violative of Section 81 of the RP Act, 1951.
The petitioner filed the rejoinder affidavit in which it has been claimed that filing of false affidavit amounts
to filing of incomplete nomination paper which will make it liable to be rejected under Section
36(2) of the RP Act, 1951. The election petitioner also denied that the error in stating the educational
qualification of the respondent was a clerical error.
9. On the basis of the pleadings, the following six (6) issues were framed:
i) Whether the Returning Officer of 27th -Moirang AC has illegally accepted the nomination paper of the
respondent or not?
ii) Whether the election of the respondent had been materially affected by the acceptance of the nomination
paper of the respondent by the R.O. of 27th -Moirang A/C or not?
iii) Whether the respondent had filed false affidavit in respect of the highest education qualification in the form,
in which the respondent had mentioned “MBA Mysore University” or whether it was merely a clerical
error?
iv) Whether the petition lacks material facts or not?
v) Whether the election petition is liable to be dismissed for not putting the words “attested to
be true copy of the petition” on each and every page of the petition by the petitioner himself or not; or on
any of the defects raised by the respondent in his written statement?
vi) Whether the petitioner is entitled to the relief claimed in the writ petition?
10. On examination of the aforesaid six issues framed, it is evident that the petitioner had abandoned his charge
made against the respondent about electoral malpractices or corrupt practices and ground of challenge is now
confined to the issues as to whether the respondent had filed a false affidavit in respect of his highest
educational qualification at the time of filing the nomination paper and whether it was merely a clerical error or
not and its consequences and whether the election petition is liable to be dismissed on the ground of improper attestation
of the copies of the petition.
11. The parties have adduced their respective evidences.
The election petitioner examined two (2) witnesses in support of his claim, the petitioner himself
as PW 1 and his Election Agent, namely, Hemam Boyai Singh as PW 2.
The respondent also adduced evidence and examined himself as DW 1, Sri Philem Shamu Singh,
his Election Agent as DW 2 and Chakpram Bimolchandra Singh, a lawyer as DW 3.
12. Of the six issues framed, Issue No. (v) above is to whether the election petition is liable to be dismissed for not
putting the words “attested to be true copy of the petition” on each and every page of the petition by the petitioner
himself or of any of the defects raised by the respondent in his written statement. Therefore, if the respondent is
successful on this issue, there will be no necessity to examine the other issues. If the election petition is dismissed on the
ground of non- maintainability due to the alleged defects, the question of deciding the other issues does not arise.
Hence, this Court proposes to take up this Issue no. (v) at the first instance. This issue has been raised also in Civil
Misc. Case No. 1 of 2012 filed by the respondent. Before we proceed to deal with this issue it may be apposite to
refer to relevant provisions of the Representation of People Act, 1951 and the Rules framed thereunder. Section
81(3) of the Representation of the People Act, 1951 reads as follows :-
“81. Presentation of petitions.—(1) …………………………
…………………………………………………………………………
(3) Every election petition shall be accompanied by as many copies thereof as there are
respondents mentioned in the petition and every such copy shall be attested by the petitioner under his
own signature to be a true copy of the petition.
86. Trial of election petitions.—(1) The High Court shall dismiss an election petition which does
not comply with the provisions of section 81 or section 82 or section 117.
290 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
Explanation.—An order of the High Court dismissing an election petition under this sub-section shall be
deemed to be an order made under clause (a) of section 98.
(2) ………………………………………………
...........………………………………………………
………………………………………………………
(7) …………………………………………………… ”
13. It has been contended by the respondents that the petitioner has not attested the
copy of the petition to be the true copy of the original petition as required under Section 81(3) of the
Act, since only the front page of the copy bears the words “attested to be true copy”, though, in
respect of other pages of the copy the election petitioner has put his signatures only with the
word “attested”. It has been contended that the fact that the petitioner has mentioned “attested to be a
true copy” in the front page of the copy of the petition shows that he was aware of the requirements
of law. However, since he has chosen not to comply with the aforesaid requirements in the subsequent
pages, as he has not put his signatures with the words “attested to be true copy” on each page, he
must face the consequence of getting the petition dismissed. It has been contended that the said defect
is a vital and substantial one which would amount to non compliance with the provisions of Section
81(3) of the RP Act, 1951 which will attract Section 86(1) of the RP Act inviting dismissal of the
petition.
14. Though other allegations have been made in the said Civil Misc. Application No. 1 of 2012 contending that
the signatures endorsed by the petitioner in the election petition are doubtful as these are completely different from the
signature of the petitioner available on official records, and hence vital defects of substantial character, this has
not been pursued by the Respondent.
15. It has been also alleged that the affidavit accompanying the election petition suffers from various
material defects as the allegations relating to corrupt practice have not been properly verified as to whether these
are based on personal knowledge or information received. For example, the contents of paragraphs No. 4.9
and 4.10 of the affidavit filed by the election petitioner are facts of official election process, yet these have been
referred to as instances of corrupt practices. Similarly, in respect of contents of paragraph No. 4.16(1) and
4.16(2) of the petition, though these relate to something else, these have been referred to in the accompanying
affidavit as instances of corrupt practices of furnishing false statement of possessing higher educational qualifications
and non disclosure of assets and properties. These paragraphs which ought to be verified as true to his personal
knowledge yet these have been verified as submissions of the petitioner. Thus, it has been contended by the
respondent that these are irregularities and defects of substantial nature which are found in the affidavit of the
petitioner which are not in conformity with Form No. 25 prescribed under Rule 94-A and hence, the election petition is
liable to be dismissed. These allegations, of course, had been denied by the election petitioner contending that these
defects are of no substantial nature.
16. With reference to this Issue no. (v), the parties have referred to an array of decisions to support their
respective contentions.
17. The respondent has relied on the following, inter alia, decisions :
(1)
Mukhtiar Singh Vs. The Chief Election Commissioner and Dharam Dev Solanki MLA, AIR
1997 Delhi 116;
(2)
Ved Prakash Gaur Vs. Sukhan & Ors., AIR 1984 Delhi 27th 6;
(3)
Sharif-ud-Din Vs. Abdul Gani Lone, AIR 1980 SC 303;
(4)
Kushalchand Vs. Harlal and Ors., AIR 1978 M.P. 174;
(5)
Rajendra Singh Vs. Usha Rani, AIR 1984 SC 956;
(6)
Mithilesh Kumar Pandey Vs. Baidyanath Yadav & Ors., AIR 1984 SC 305;
(7)
Mrs. Vinod (Vinod Chadha) Vs. Kirpal Singh Dhilon & Anr., AIR 1987 P & H 110;
(8)
Harcharan Singh Josh Vs. Hari Kishan, (1997) 10 SCC 294;
(9)
Purushottam Vs. Returning Officer, Amravati and Ors., AIR 1992 Bombay 227th .
In Mukhtiar Singh (supra), it has been held that since there was no endorsement of the petitioner in the
copy of the petition that it is an attested true copy of the petition and there has been substantial variance
between the election petition and copy thereof which has been furnished to the respondent, the latter cannot be
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 291
considered to be true copy of the former and hence, the election petition is liable to be dismissed for violating
Section 81(3).
In Ved Prakash Gaur (supra), the petitioner supplied photostat copy of the petition without requisite attestation
and petition was held liable to be dismissed since copies filed along with petition were not attested by the petitioner
“under his own signature” to be true copy of the petition, holding that provisions of Section 86 are mandatory.
In Sharif-ud-Din (supra), the Hon’ble Supreme Court held that requirement that copy of election petition for
respondent should be attested by petitioner is a mandatory one, non-compliance whereof would make the
petition liable to be dismissed.
In Kushalchand (supra), the MP High Court held that failure to supply copy of annexure in election
petition to the respondent is fatal.
The Hon’ble Supreme Court in Rajendra Singh (supra) held that furnishing of incorrect copy of the election
petition filed to the respondent amounts to non-compliance of Section 81(3) and is liable to be dismissed.
In Mithilesh Kumar Pandey (supra), the Hon’ble Supreme Court held that while making allegations of corrupt
practices, mistakes in copy of petitions supplied to elected candidate as regards names of persons to whom corrupt
practices were alleged to have been committed by him such mistakes relating to omission of some names giving
wrong names, etc. are fatal and the petitions are liable to be dismissed in limine.
In Mrs. Vinod (Vinod Chadha) (supra), the Punjab and Haryana High Court held that the Photostat copy
supplied to the other party should be certified by the petitioner to be a true copy in order to conform to the provisions
of Section 81(3).
18. The respondent further relied on the decisions of Harcharan Singh Josh (supra) in which it was
held that the copy of the affidavit supplied to the respondent not containing the affirmation by the Oath
Commissioner was held to be not curable defect and it was further held that the said substantial compliance
has no application in such a case, thus, upholding dismissal of election petition on that ground. However, in
the later decision in T. Phungzanthang Vs. Hangkhanlian & Others, (2001) 8 SCC 358, this decision was
held to be no longer a good law in view of the Constitution Bench decision in T.M. Jacob Vs. C. Poulose and
Others, (1999) 4 SCC 1027.
The respondent also relied on the decision of Purushottam (supra) that absence of endorsement of Notary on
the copy of affidavit accompanying election petition is fatal. The respondent has also relied on other decisions of the
Hon’ble Supreme Court relating to corrupt practice, lack of material facts, lack of cause of action etc.. However, as the
ground of challenge in the election petition insisted upon is based mainly on the issue whether the petitioner has
filed false affidavit or not, this Court is of the view that it may not be necessary to digress to other issues.
19. The election petitioner, on the other hand pressed into service the following decisions, inter alia, in
support of his contention that the election petition does not suffer from any defect as alleged by the respondent :-
1) Subbarao Vs. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027th ;
2) T.M. Jacob Vs. C. Poulose and Others, (1999) 4 SCC 1027 ;
3)
Bhagwan Rambhau Karankal Vs. Chandrakant Batesingh Raghuwanshi, 2001 (6) Supreme
101;
4) T. Phungzanthang Vs. Hangkhanlian & Others, (2001) 8 SCC 358;
5) Ram Prasad Sarma Vs. Mani Kumar Subba and Others, (2003) 1 SCC 289;
6) Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar and Others, (2005) 2 SCC 188;
7) Umesh Challiyill Vs. K.P. Rajendran, (2008) 11 SCC 740;
8) Ponnalal Lakshmaiah Vs. Kommuri Pratap Reddy and Others, (2012) 7 SCC 788;
9) G.M. Siddeshwar Vs. Prasanna Kumar, (2013) 4 SCC 776;
20. This Court proposes to refer to only those cases of both the parties which the Court considers to be directly
relevant to the issue at hand.
21. As regards the objection raised by the respondent that the election petition is liable to be dismissed on
the ground of non-conformity with Section 81(3) of the RP Act, 1951, which is a procedural defect, there are
overwhelming judicial pronouncements that the Court ought not to take a hyper technical view and that it is only where
there is total or near total non-compliance of the provisions of Section 81(3) that it may render such election
petition liable to be dismissed. However, if there is a substantial compliance with the requirements of Section 81(3),
the election petition cannot be dismissed. The Hon’ble Supreme Court as far back as in the year 1964 in Ch.
292 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
Subbarao Vs. Member, Election Tribunal, Hyderabad and Ors., AIR 1964 SC 1027th had dealt with the
case in which the election petition was typewritten and copies which accompanied the petition were carbon copies
of the typescript. The copies bore 2 (two) signatures in original of the election petitioner authenticating both the
contents of the petition as well as the verification thereof. The petitioner did not, however, insert the words “true copy”
before or above his signatures. The High Court dismissed the election petition on the ground of non-compliance of
provisions of Section 81(3) of the Act. The Hon’ble Supreme Court held that if the signature of the petitioner whose
name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document.
The aforesaid decision in Ch. Subbarao (supra) was relied upon by another Constitution Bench in Dr. Anup
Singh Vs. Shri Abdul Ghani and Ors., AIR 1965 SC 815. In Para No. 7, the Hon’ble Supreme Court held
that :-
“(7) An exactly similar matter came to be considered by this Court in Ch. Subba Rao v. Member, Election
Tribunal, AIR 1964 SC 1027th . In that case also the copies were signed by the petitioner but there was no
attestation in the sense that the words "true copy” were omitted above the signature of the petitioner. This
Court held that as the signature in original was there in the copy, the presence of such original signature in
the copy was sufficient to indicate that the copy was attested as a true copy, even though the words "true
copy" were not written above the signature in the copies. This Court further held that there was substantial
compliance with S. 81(3) of the Act and the petition could not be dismissed under S. 90(3). That case
applies with full force to the facts of the present case, and it must therefore be held that there was
substantial compliance with S. 81 (3) and the petitions could not therefore be dismissed under S. 90(3).”
22. In the present case at hand, even if the election petitioner did not write the words “attested to be true copy of
the petition”, along with his signatures, the election petitioner wrote the words “attested” before his signatures in his
own hand writing on each page, thus, in conformity with the aforesaid 2 (two) decisions of the Hon’ble Supreme Court.
This Court is of the view that since the election petitioner had put his signatures on the copies furnished to the
respondent and also had written the word “attested” on each page, he has substantially complied with the requirements
of Section 81(3) of the RP Act, 1951. Hence, it cannot be said that the election petitioner has not complied with the
provisions of Section 81(3) and cannot, therefore, be dismissed under Section 86(1) of the Act as sought by the
respondent in view of the above Constitution Bench decisions in Ch. Subbarao (supra) and Dr. Anup Singh
(supra). This Court is of the view that it may not be necessary to deal with the other case laws relied upon by
the respondent as these are not applicable to the present case.
23. Accordingly, the Issue no. (v) as to whether the election petition is liable to be dismissed for not putting the
words “attested to be true copy of the petition” on each and every page of the petition by the petitioner himself; or
on any of the defects raised by the respondent in his written statement, is decided against the respondent and in
favour of the petitioner.
24. As regards the other Issue No. (iv) as to whether the petition lacks material facts or not, since the
election petitioner has more or less given up his grounds of challenge based on electoral malpractices or corrupt
practices, this Court would confine to the issue as to whether there are sufficient materials as regards the
allegation that the respondent had filed a false affidavit or not and need not burden this judgment with the judicial
pronouncements relating to material facts.
As regards this allegation that the respondent had filed a false affidavit regarding his educational qualifications, this
Court is of the opinion that the election petitioner has pleaded with sufficient materials as mentioned in paragraphs
No. 4.4, 4.5, 4.6, 4.8, 4.19, 4.20 of the election petition. Accordingly, it cannot be said that the petition lacks
material facts as regards this allegation.
Mr. Kumarjit, Learned Senior counsel submits that with regard the issue as to whether the pleadings lack
material facts, it has been submitted that the petitioner has abandoned all the pleas about corrupt practices. Thus, this
plea of the respondent that the election petition lacks material particulars is without any substance. He submits that
as far as the allegation of giving false affidavit is concerned, the petitioner has given all the material facts and
particulars. He submits that as regards the allegation of the respondent that the affidavit of the petitioner in the election
petition suffers from material defect is without any substance as these allegations relate to the method of corrupt
practices. Since, he has already abandoned the claim regarding corrupt practices of the respondent, this defect
appearing in his affidavit does not matter. It has been submitted that, in any event, as regards the allegation of
filing of false affidavit at the time of submission of nomination, such allegation does not require to be
supported by any affidavit as is required in the case of allegation of corrupt practice. Referring to proviso to sub-
section (1) of Section 83 of the RP Act, the Learned Senior counsel submits that only when the challenge to the election
is based on corrupt practice of the returned candidate, the petition is to be accompanied by an affidavit in the
prescribed form, otherwise not.
Hence, this Issue No. (iv) as to whether the petition lacks material facts is decided against the respondent.
25. Regarding Issues No. (i), (ii) and (iii), Issues No. (i) and (ii) are dependant upon the finding in Issue No.
(iii). Accordingly, we proceed to first deal with the Issue no. (iii) as to whether the respondent had filed false affidavit
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 293
in respect of highest educational qualification in Form no. 26 in which the respondent had mentioned “MBA, 2004,
Mysore University” or whether it was merely a clerical error.
26. The case of the election petitioner as regards this Issue No. (iii) is that the respondent while filing his nomination
paper submitted an affidavit in Form No. 26 as required under Section 33 of the Act read with Rule 4A of the
Conduct of Elections Rules, 1961 in which the respondent had mentioned in para 9 of the said affidavit that his highest
qualification is “MBA, 2004, Mysore University” though he did not possess MBA from Mysore University.
Accordingly, it has been contended by the election petitioner that the respondent had filed a false affidavit as
regards his educational qualification. The plea of the respondent is that he did not give any false declaration
in respect of his academic qualification but what was stated in the affidavit was merely a clerical error. It
was his plea in the written statement that it was his thought process to obtain MBA degree from Mysore University
through correspondence course as the same was discussed amongst friends and supporters that nowadays people should
have MBA course and there are colleges in Karnataka providing correspondence course facilities. This thought process
emerged in his mind and continued in wrong depiction of the word. He thus contends that this is a clerical
mistake from which he was neither going to gain or lose anything. Thus, when the mistake was explained to
the Returning Officer at the time of scrutiny of nomination paper, Returning Officer decided not to reject the
nomination paper as the same was not of substantial nature.
27. As we proceed, we may briefly refer to the grounds under which an election could be declared void by the High
Court which are provided under Section 100 of the RP Act.
Clauses (a), (b), (c) and (d) of Sub-section (1) of Section 100 specify the grounds under which the
election of the Returned candidate can be declared void.
Section 100(2) clarifies the conditions in which the election of the Returned candidate may not be
declared void. The present case does not fall under this category.
Clause (a) of Section 100(1) provides the situation where a returned candidate was not qualified on the date of
his election or was disqualified, to be chosen to fill the seat under the Constitution or this Act. It is not the case
of the election petitioner that the respondent was not qualified or was disqualified, to be chosen to fill the seat under
the Constitution or this Act. Hence, clause (a) of Section 100(1) is not attracted in the present case.
Clause (b) of Section 100(1) provides that an election can be declared void if the Court finds that any
corrupt practice has been committed by a returned candidate or his election agent or by any other person with the
consent of a returned candidate or his election agent. In the present case, though corrupt practice was one of
the grounds pleaded in the election petition, the election petitioner has abandoned this ground, hence no issue was
framed in this regard and he has not led any evidence in this regard. Hence, the ground provided under clause (b) of
Section 100(1) is not attracted in the present case.
Clause (c) of Section 100(1) provides for declaring the election void if any nomination is improperly
rejected. Since in the present case there is no such case of improper rejection of any nomination, this
ground is also not applicable.
This leaves the last ground for declaring the election to be void as provided under clause (d) of Section 100(1)
of the Act which provides that if the High Court is of opinion that the result of the election, in so far as
it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate or by an agent other than his
election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders
made under this Act,the election of the returned candidate shall be declared void.
As mentioned above, the allegations of corrupt practice has been already abandoned by election petitioner.
Similarly, there is also no case of improper reception, refusal or rejection of any vote or the reception of any
vote which is void in the present case. Thus, the only grounds left are of the improper acceptance of any
nomination as provided under clause (d)(i) of Section 100(1) and of non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under this Act as provided under clause (d)(iv) of
Section 100(1) of the RP Act, 1951.
28. It is the case of the election petitioner that the nomination paper of the respondent had been improperly accepted,
which was otherwise liable to be rejected as the respondent had filed a false affidavit giving false
294 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
information about his highest educational qualification. Hence, the election of the respondent is liable to be
dismissed under Section 100(1)(d)(i).
It would be pertinent here to refer to the relevant provisions of the RP Act, 1951 which deal with the
filing of nomination paper and the grounds for rejection thereof.
Section 33 of the Act deals with presentation of nomination paper and stipulates the requirements for a
valid nomination. It, inter- alia, provides that the nomination paper must be completed in the prescribed form and
signed by the candidate and by an elector of the constituency as proposer. Though Section 33 of the Act does not
specifically mention filing of any affidavit along with nomination paper, it is so provided under Rule 4A of the
Conduct of Elections Rules, 1961. Rule 4A provides that the candidate or his proposer, as the case may be, shall, at
the time of delivering to the returning officer the nomination paper under sub-section (1) of Section 33 of the
Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in
Form 26 as contained in the Rules furnishing detailed particulars relating to the antecedents criminal or otherwise of the
candidate, assets and liabilities of the candidate, and also the educational qualification. There is another
provision under the RP Act which requires a candidate to furnish information at the time of submission of
nomination paper under Section 33A of the Act.
29.
Section 36 of the RP Act, 1951 which deals with the scrutiny of nomination papers and provides the
grounds under which nomination can be rejected reads as follows :
“36. Scrutiny of nominations.—(1) On the date fixed for the scrutiny of nominations under section 30, the
candidates, their election agents, one proposer of each candidate, and one other person duly authorized in
writing by each candidate, but no other person, may attend at such time and place as the returning officer may
appoint; and the returning officer shall give them all reasonable facilities for examining the
nomination papers of all candidates which have been delivered within the time and in the manner laid down in
section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be
made to any nomination and may, either on such objection or on his own motion, after such summary
inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:—
[(a) that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is
disqualified for being chosen to fill the seat under any of the following provisions that may be applicable,
namely:—
Articles 84, 102, 173 and 191,
[Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of
1963)] or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34 ; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in clause (b) or clause (c)] of sub- section (2) shall be deemed to authorize the
rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination
paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no
irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is
not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of
section 30 and shall not allow any adjournment of the proceedings except when such proceedings are
interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the returning officer or is made by any other person the candidate
concerned may be allowed time to rebut it not later than the next day but one following the date fixed for
scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been
adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same
and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such
rejection.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 295
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force
of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector
for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the
Representation of the People Act,1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the
same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to
say, candidates whose nominations have been found valid, and affix it to his notice board.
(emphasis added)
30. Therefore, the issue whether a nomination paper of a candidate has been improperly accepted or not has
to be examined with reference to the above provisions of Section 36 of the RP Act and related law governing the field.
We will, therefore, examine the relevant laws relating to the requirements of a valid nomination paper, filing
scrutiny, etc.
31. As we proceed to examine the requirements of a valid nomination paper, more particularly, in the context of
the present controversy which revolves around the issue of the educational qualification of the respondent in his
nomination paper which the election petitioner charges to be false though the respondent claims to be a mere clerical
error, we may revisit the relevant judicial pronouncements.
32. While dealing with various shortcomings plaguing the Indian electoral system and to stem the tide of
criminalisation of Indian politics, very important issues arose before the Courts about the right of the voters to know
of the relevant particulars of the candidates, as ultimately it is the voters who decide the fate of the candidates who
will periodically exercise the political power. These issues had also engaged the Law Commission of India which
in its 178th Report had proposed certain changes under Rule 4 of the Conduct of Election Rules, 1961 for providing
certain information. The matter was first considered before the High Court of Delhi which took the view that the
changes proposed for providing information by amending the relevant provisions of the Conduct of Electoral
Rules, 1961 was within the domain of the legislature and it was for the Parliament to make necessary amendments in
the RP Act, 1951 and the relevant Rules. However, the High Court also made a very significant direction holding
that a citizen of this country has a fundamental right to receive information regarding the criminal activities of a
candidate of the Parliament or the Lok Sabha or the Legislative Assemblies so as to make his choice effective and
meaningful and accordingly directed the Election Commission of India to secure to voters the following information of
each of the candidates :
“1. Whether the candidate is accused of any offence(s) punishable with imprisonment. If so, the details
thereof.
2. Assets possessed by a candidate, his or her spouse and dependent relations.
3. Facts giving insight into the candidate’s competence, capacity and suitability for acting as a parliamentarian or
a legislator including details of his/her educational qualifications.
4. Information which the Election Commission considers necessary for judging the capacity and capability of the
political party fielding the candidate for election to Parliament or the State Legislature.”
The aforesaid directions were challenged by the Union of India before the Hon’ble Supreme Court. The Hon’ble
Supreme Court in Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294 elaborately
discussed the various issues including the right of the citizen to know about the candidates contesting election and
observed in paragraph no. 46 as follows:
“46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can
be stated that:
1. ............................................................................
2. ............................................................................
3..............................................................................
4. To maintain the purity of elections and in particular to bring transparency in the process of election, the
Commission can ask the candidates about the expenditure incurred by the political parties and this
transparency in the process of election would include transparency of a candidate who seeks election or re-election.
In a democracy, the electoral process has a strategic role. The little man of this country would have basic
elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to
bind his liberty and property may be enacted.
296 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the
concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant on
Civil and Political Rights, which is as under:
“(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.”
6. On cumulative reading of a plethora of decisions of this Court as referred to, it is clear that if the field meant for
legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample
jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary
directions to the executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or
expression in case of election would include casting of votes, that is to say, voter speaks out or
expresses by casting vote. For this purpose, information about the candidate to be selected is a must.
Voter’s (little man — citizen’s) right to know antecedents including criminal past of his candidate contesting
election for MP or MLA is much more fundamental and basic for survival of democracy. The little man
may think over before making his choice of electing law-breakers as law-makers.”
Thereafter, the Hon’ble Supreme Court issued the following directions as mentioned in paragraph Nos. 47,
48 and 49 of the judgment which are reproduced hereinbelow :-
“47. In this view of the matter, it cannot be said that the directions issued by the High Court are unjustified or
beyond its jurisdiction. However, considering the submissions made by the learned counsel for the parties at the
time of hearing of this matter, the said directions are modified as stated below.
48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise
of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or
a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the
following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past — if any,
whether he is punished with imprisonment 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, particularly whether there are any overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate.
49. It is to be stated that the Election Commission has from time to time issued instructions/orders to meet with the
situation where the field is unoccupied by the legislation. Hence, the norms and modalities to carry
out and give effect to the aforesaid directions should be drawn up properly by the Election Commission as
early as possible and in any case within two months.”
Though the Hon’ble Court was primarily concerned with the criminalisation and misuse of money and muscle
power in the politics, thus requiring the candidates to disclose their assets and criminal antecedents, if any, also
brought in the requirement for disclosing the educational qualification as a concomitant requirement.
33. After the aforesaid judgment of the Supreme Court, an Ordinance which was promulgated by the
President of India on 24.08.2002 by which Sections 33A and 33B were inserted in the RP Act, 1951. Later the
said Ordinance was repealed and the Representation of People (3rd Amendment) Act of 2002 was notified inserting
Sections 33A and 33B in the RP Act, 1951. Section 33A requires the candidate to furnish additional information
as to -
(i) whether he is accused of any offence punishable with imprisonment for 2 (two) years or more in a
pending case in which a charge has been framed by the Court of competent jurisdiction.
(ii) whether he has been convicted of an offence other than any offence referred to in sub-section (1) or
sub- section (2), or covered in sub-section (3), of section 8 and sentenced to imprisonment for one year or
more.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 297
Section 33B provided that notwithstanding anything contained in any judgment, decree or order of any court or
any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose
or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this
Act or the rules made there under.
The aforesaid Section 33A did not provide for furnishing of the information as directed by the Supreme
Court in Assn. for Democratic Reforms (supra) and sought to whittle down the scope of the directions by
incorporating Section 33B.
34. The aforesaid Section 33B inserted by the 3rd Amendment Act of 2002 was challenged before the Court
in People’s Union for Civil Liberties (PUCL) and Another Vs. Union of India and Another,
(2003) 4 SCC 399. The Hon’ble Supreme Court while dealing with this issue touched upon various aspects of the
directions issued by the Hon’ble Supreme Court in the earlier case of Association for Democratic Reforms’ case
(supra) and reaffirmed the said decision which required furnishing of information by the candidates as regards the
antecedents relating to criminal cases/offences, assets, liabilities and debts of the candidates and their spouses and
children and lastly the educational qualification of the candidates. The aforesaid direction by the Hon’ble Supreme
Court for furnishing information was based on the broader interpretation of Article 19(1)(a) which guarantees freedom
of speech and expression to the citizen of this country. The aforesaid information were held to be an important
ingredients of Article 19(1)(a) and accordingly, the Hon’ble Supreme Court made the following observations :
“18. So, the foundation of a healthy democracy is to have well- informed citizens-voters. The reason to have
right of information with regard to the antecedents of the candidate is that voter can judge and decide in whose
favour he should cast his vote. It is the voter’s discretion whether to vote in favour of an illiterate or literate
candidate. It is his choice whether to elect a candidate against whom criminal cases for serious or non-serious
charges were filed but is acquitted or discharged. He is to consider whether his candidate may or may not have
sufficient assets so that he may not be tempted to indulge in unjustified means for accumulating wealth.
For assets or liability, the voter may exercise his discretion in favour of a candidate whose liability is
minimum and/or there are no overdues of public financial institution or government dues. From this
information, it would be, to some extent, easy to verify whether unaccounted money is utilized for contesting
election and whether a candidate is contesting election for getting rich or after being elected to what extent he
became richer. Exposure to public scrutiny is one of the known means for getting clean and less polluted
persons to govern the country. A little man — a citizen — a voter is the master of his vote. He must have
necessary information so that he can intelligently decide in favour of a candidate who satisfies his criterion of
being elected as an MP or MLA. On occasions, it is stated that we are not having such intelligent voters. This
is no excuse. This would be belittling a little citizen/voter. He himself may be illiterate but still he would
have the guts to decide in whose favour he should cast his vote. In any case, for having free and fair
election and not to convert democracy into a mobocracy and mockery or a farce, information to voters is a
necessity.”
35. Hon’ble M.B. Shah, J in his elaborate judgment in the aforesaid case of PUCL summarised the issues
as mentioned in para 78 of the judgment, relevant portions of which is reproduced hereinbelow :
“78. What emerges from the above discussion can be summarised thus:
(A) ...................................................................................................................................................
(B) Section 33-B which provides that notwithstanding anything contained in the judgment of any court or
directions issued by the Election Commission, no candidate shall be liable to disclose or furnish any such
information in respect of his election which is not required to be disclosed or furnished under the Act or the rules
made thereunder, is on the face of it beyond the legislative competence, as this Court has held that the voter has a
fundamental right under Article 19(1)(a) to know the antecedents of a candidate for various reasons recorded in
the earlier judgment as well as in this judgment.
The Amended Act does not wholly cover the directions issued by this Court. On the contrary, it
provides that a candidate would not be bound to furnish certain information as directed by this Court.
(C) The judgment rendered by this Court in Assn. for Democratic Reforms1 has attained finality,
therefore, there is no question of interpreting constitutional provision which calls for reference under Article
145(3).
(D) The contention that as there is no specific fundamental right conferred on a voter by any statutory
provision to know the antecedents of a candidate, the directions given by this Court are against the statutory
provisions is, on the face of it, without any substance. In an election petition challenging the validity of an
election of a particular candidate, the statutory provisions would govern respective rights of the parties.
298 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
However, voters’ fundamental right to know the antecedents of a candidate is independent of statutory rights
under the election law. A voter is first citizen of this country and apart from statutory rights, he is having
fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently
informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to
vote would be meaningless unless the citizens are well informed about the antecedents of a candidate. There can
be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic
governing system and to have competent legislatures.
(E) ............................................................................................................. ..............................................................”
Section 33B was accordingly declared as null and void.
36. Hon’ble V. Venkatarama Reddi, J. though endorsed the view as regards unconstitutionality of Section 33B,
however, expressed disagreement in certain areas, inter alia, holding that the failure to provide for disclosure of
educational qualification, does not, in practical terms, infringe the freedom of expression as summarised by His
Lordship in para 123 of the judgment which is reproduced herein below :
“123. Finally, the summary of my conclusions:
(1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or
the State Legislature promotes freedom of expression and therefore the right to information forms an integral part
of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information
about public affairs or the right to receive information through the press and electronic media, though, to a certain
extent, there may be overlapping.
(2) The right to vote at the elections to the House of the People or Legislative Assembly is a constitutional right
but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right
enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter.
(3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms1 were intended to
operate only till the law was made by the legislature and in that sense “pro tempore” in nature. Once legislation is
made, the Court has to make an independent assessment in order to evaluate whether the items of information
statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In
embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc
in nature, should be given due weight and substantial departure therefrom cannot be countenanced.
(4) The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for
right to information and laying down the parameters of that right.
(5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test
of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other
than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients
and secondly, for the reason that the ban operates despite the fact that the disclosure of information now
provided for is deficient and inadequate.
(6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases
and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the
voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been
taken by the Court from the ambit of disclosure.
(7) The provision made in Section 75-A regarding declaration of assets and liabilities of the elected candidates to
the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of
expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the
elected candidate together with those of the spouse or dependent children, Parliament ought to have made a
provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the
violation of guarantee under Article 19(1)(a).
1: (2002) 5 SCC 294
(8) The failure to provide for disclosure of educational qualification does not, in practical terms, infringe
the freedom of expression.
(9) The Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to
what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election
Commission’s orders related to disclosure of assets and liabilities will still hold good and continue to be operative.
However, Direction 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and
rejection of nomination paper on the ground of furnishing wrong information or suppressing material information
should not be enforced.”
(Emphasis added)
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 299
37. Hon’ble Dharmadhikari, J. while by and large agreeing with the views of the two Hon’ble Judges, clarified that
His Lordship agreed with Sections (a) to (e) in the opinion of Hon’ble M.B. Shah, J and the Conclusions (1), (2), (4),
(5), (6) (7) and (9) in the opinion of the Hon’ble P.Venkatarama Reddi, J. However, His Lordship expressed his
inability to agree with Conclusions (3) and (8) in the opinion of Hon’ble P.Venkatarama Reddy, J. and on those aspects
expressed his agreement with views of the Hon’ble M.B. Shah J. as mentioned in para 131 and 132 which are quoted
hereinbelow :
“131. With these words, I agree with Conclusions (A) to (E) in the opinion of Brother Shah, J. and Conclusions (1),
(2), (4), (5), (6), (7) and (9) in the opinion of Brother P.V. Reddi, J.
132. With utmost respect, I am unable to agree with Conclusions (3) and (8) in the opinion of Brother P.V. Reddi, J., as
on those aspects, I have expressed my respectful agreement with Brother Shah, J.”
Thus, Hon’ble Dharmadhikari J. did not agree with the view of Hon’ble P. Venkatarama Reddi J. that
failure to provide for disclosure of educational qualification does not in practical terms infringe the freedom
of expression.
38. From the above decisions what transpires is that as regards the disclosure of educational qualification by the
candidate, the majority view in the aforesaid decision in PUCL is that it cannot be said that it is not an important
facet of the freedom of expression and non disclosure of educational qualification will infringe the freedom of
expression. In other words, it is necessary to disclose information about educational qualification as part of the right of
the voter under Article 19(1)(a).
39. The inference which can be drawn is that failure to furnish information as regards the educational qualification by
a candidate would be a serious lapse on the part of the candidate as it would violate the right of the voters under
Article 19(1)(a).
40. It is to be noted that pursuant to the decision of the Hon’ble Supreme Court in Association for
Democratic Reforms (supra), Rule 4A was inserted by S.O. 935(E) dated 3rd September, 2002 which reads as
follows :-
“4A. Form of affidavit to be filed at the time of delivering nomination paper.- The candidate or his
proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under
sub-section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form 26.”
41. In terms of the aforesaid Rule 4A, a candidate is to submit an affidavit with detailed particulars as provided
in Form 26. Para No. 8 and 9(9) of the aforesaid Form 26 as then applicable required giving information about the
educational qualification/highest educational qualification. It is in the Form 26 submitted by the respondent that, the
respondent had given his educational qualification/highest educational qualification as “MBA, 2004, Mysore
University” which is at the heart of the dispute between the parties in this election petition. Before we
proceed further, this Court would like to refer to other subsequent decisions of the Hon’ble Supreme Court
which will have a bearing on this issue.
42. The Hon’ble Supreme Court in Resurgence India Vs. Election Commission of India and Another,
(2014) 14 SCC 189 had re-examined the issue of the decisions rendered in Association for Democratic
Reforms (supra) and PUCL Vs. Union of India (supra) when a writ petition was filed under Article 32 of the
Constitution for issuance of directions for meaningful implementation of the direction issued in the aforesaid two
judgements. The Hon’ble Supreme Court in Resurgence India (supra) revisited the relevant laws and issued the
following directions clarifying certain issues as mentioned in para no.29 of the judgment.
“29. What emerges from the above discussion can be summarised in the form of the following directions:
29.1. The voter has the elementary right to know full particulars of a candidate who is to represent him in
Parliament/Assemblies and such right to get information is universally recognised. Thus, it is held that right to
know about the candidate is a natural right flowing from the concept of democracy and is an integral part of
Article 19(1)(a) of the Constitution.
29.2. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental
right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the
necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can
very well compel a candidate to furnish the relevant information.
29.3. Filing of affidavit with blank particulars will render the affidavit nugatory.
29.4. It is the duty of the Returning Officer to check whether the information required is fully furnished at the time
of filing of affidavit with the nomination paper since such information is very vital for giving effect to the “right to
know” of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the
300 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
nomination paper is fit to be rejected. We do comprehend that the power of the Returning Officer to reject the
nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is
prejudiced.
29.5. We clarify to the extent that para 73 of People’s Union for Civil Liberties case2 will not come in the way of
the Returning Officer to reject the nomination paper when the affidavit is filed with blank particulars.
29.6. The candidate must take the minimum effort to explicitly remark as “NIL” or “Not Applicable” or “Not
known” in the columns and not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be directly hit by Section 125-A(i) of the RP Act. However, as the
nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again
penalised for the same act by prosecuting him/her.”
2 : People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399.
(emphasis added)
43. Thus, from the aforesaid directions of the Hon’ble Supreme Court, the right to know full particulars of a candidate
which includes information about the educational qualifications as a vital part of the Article 19(1)(a) of the
Constitution of India was reiterated. It was emphasised in Resurgence India (supra) that filing of an affidavit with
blanks on the particulars on the affidavit would make it liable to be rejected by the Returning Officer.
44. In the background of the aforesaid legal position we shall examine the present case at hand.
45. The election petitioner has focussed his challenge mainly on the ground that the respondent by showing his
highest educational qualification as having obtained MBA degree from Mysore University in 2004 in his affidavit
filed under Rule 4A of the Conduct of Election Rules, 1961 has filed a false affidavit which had rendered his
nomination paper liable to be rejected by Returning Officer under Section 36(2) as there has been a failure on the
part of the respondent to comply with the provisions of Section 33. However, since the nomination paper of the
respondent was not rejected but instead was improperly accepted by the Returning Officer, it constitutes a valid ground
for declaring the result of the respondent void under Section 100(1)(d)(i) of the RP Act, 1951.
46. Mr. N. Kumarjit, learned Senior counsel submits that the petitioner had specifically pleaded in his election
petition in para 4.4. thereof that the petitioner had objected to the nomination of the respondent on the ground that the
respondent failed to file a proper affidavit and that the affidavit is a false one as the respondent had falsely
deposed at para No. 9 of the affidavit dated 6.01.2012 that his educational qualification is “MBA, 2004, Mysore
University”, which is a false statement. It was further pleaded that the aforesaid affidavit dated 6.01.2012 filed by
the respondent was also not made by subscribing oath before the Returning Officer or any competent authority as
prescribed by the Election Commission of India.
47. Mr. Kumarjit, learned Senior counsel submits that the petitioner had requested the Returning Officer
for rejecting the nomination paper of the respondent as the respondent filed a false affidavit and upon hearing the
objection raised by the petitioner for rejecting the improper nomination of the respondent, the Returning Officer
directed the respondent to furnish/produce the documents in support of his affidavit about the educational qualification.
It has been stated that in spite of such objection and failure on the part of the respondent to produce the relevant
documents, the Returning Officer illegally accepted the nomination filed by the respondent.
48. It has been contended by Mr. Kumarjit, learned Senior counsel that the respondent never obtained MBA
degree from Mysore University in the year 2004. Mr. Kumarjit further submits that these assertions and
pleadings in the election petition were never denied by the respondent in his written statement filed. He submits
that the respondent in his written statement had made an evasive reply by claiming that the aforesaid entry
regarding the educational qualification of the respondent was only a clerical error. Mr. Kumarjit further submits
that the aforesaid educational qualification was falsely mentioned in the affidavit of the respondent in order to
impersonate himself to be at par with the petitioner who is a retired IAS officer of the Manipur-Tripura Cadre
and to mislead the voters. Mr. Kumarjit submits that it has been specifically so pleaded in para 4.17 of the
election petition but the aforesaid averment has remained uncontroverted by the respondent.
49. Accordingly, Ld. Senior Counsel submits that as the respondent has not specifically denied that he
had obtained his educational qualificationof MBA from Mysore University in the year 2004 and as he had
intentionally given the said educational qualification to mislead the voters, the nomination paper was liable to be
rejected, which the Returning Officer did not do so and as such it is a clear case of improper acceptance of the
nomination of the respondent.
50. Mr. Kumarjit, Ld. Senior Counsel relying on the decision of the Hon’ble Supreme Court in Kisan Shankar
Kathore Vs. Arun Dattatray Sawant and Others, (2014) 14 SCC 162 submits that filing of such false
affidavit would lead to rejection of the nomination paper and the effect would be that such a candidate was not
entitled to contest the election and the election is liable to be declared as void. It has been submitted by
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 301
Mr. Kumarjit that in the case of Kisan Shankar Kathore (supra), the Bombay High Court held that non
disclosure of a bungalow in the name of the spouse of the returned candidate and the outstanding taxes thereof, non
disclosure of a vehicle owned by the returned candidate’s wife, non disclosure of property purchased in the name of the
partnership firm of the returned candidate would render the affidavit nugatory as the affidavit filed by the candidate
suffers from substantive defect and hence, the nomination of the returned candidate was held to be improperly
accepted within the meaning of Section 100(1)(d)(i) of the Act. It was also held that it also amounts to non
compliance with the order passed by the Election Commission under Article 324 of the Constitution of India
which is founded on the law declared by the Apex Court under Article 141 of the Constitution within the
meaning of Section 100(1)(d)(iv) of the Act.
51. Mr. Kumarjit, Ld. Senior Counsel submits that the Hon’ble Supreme Court upheld the finding of the Bombay
High Court as regards non-disclosure of the bungalow in the name of the returned candidate’s wife, the vehicle in the
name of his wife, his interest/share in the partnership firm, which were held to be substantial lapses and the
Hon’ble Supreme Court was held therein that it cannot be said that the information contained in the affidavit are to be
treated as substantial compliance. The Hon’ble Supreme Court accordingly upheld the decision of the Bombay
declaring the election of the returned candidate as void. The Hon’ble Supreme Court held in para 43 as follows :
“43. When the information is given by a candidate in the affidavit filed along with the nomination paper and
objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure
of certain important information, it may not be possible for the Returning Officer at that time to conduct a
detailed examination. Summary enquiry may not suffice. The present case is itself an example which loudly
demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the
nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is
proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete
information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms
Meenakshi Arora, learned Senior Counsel appearing for the Election Commission, rightly argued that such an
enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case,
when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and
then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the
blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is
needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was
properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper
acceptance, as there was misinformation or suppression of material information, one can state that question of
rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would
have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the
election is void. Otherwise, it would be an anomalous situation that even when criminal proceedings under Section
125-A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the
result of his election cannot bequestioned. This cannot be countenanced.”
(emphasis added)
Accordingly, Mr. Kumarjit, Learned Senior counsel for the petitioner submits that since the respondent has
been found to have given false affidavit regarding his educational qualification in the Form 26 as required under Rule
4A of the Conduct of Election Rules, 1961, his nomination paper was liable to be rejected and since it was a case of
improper acceptance, the election of the respondent is also liable to be declared void under Section 100(1)(d)(i) of the
RP Act, 1951.
52. In response, Mr. V. Giri, Learned Senior counsel for the respondent, contends that the election petition is not to
be equated to an action at law or inequity but the rights are purely the creature of statute. Hence, if the election petition
has to succeed he has to succeed within the parameters of the laws of Representation of People Act, 1951 and
has to fulfil the requirements of law laid down under various provisions of the Act. He contends that Section
100(1)(d) postulates voidance of election only when not only the conditions enumerated in sub-clauses (i), (ii), (iii) and
(iv) of clause (d) of Sub-section (1) of Section 100 are satisfied but also when it is shown that because of that, the
result of the returned candidate has been materially affected. In other words, in respect of challenge under
Section 100(1)(d) the election petitioner has to prove not only that there was improper acceptance of any
nomination, as in this case, and also that such improper acceptance has materially affected the result of the election in so
far as it concerns the returned candidate. Similarly, if the election is sought to be declared void under
Section100(1)(d)(iv) the election petitioner has to prove not only non compliance with the provisions of the Constitution
or of the Act or of any rules or orders made under the Act by the respondent but also that such non compliance has
materially affected the result of the election in so far as it concerns the returned candidate.
Mr. V. Giri, Learned Senior counsel submits that the sum and substance of the allegation of the petitioner
against the respondent is the filing of incorrect or false affidavit by the respondent under Form 26. This allegation,
thus, in essence is about non compliance with the provisions of the Constitution or of the RP Act or rules or orders
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made under the Act, hence, comes under Section 100(1)(d)(iv) of the Act. He submits that co-relating this with the
power of the Returning Officer to reject nomination which is subject to Section 36(4), it must therefore, be first
demonstrated that such a defect is of substantial character to prompt the Returning Officer to reject the
nomination paper under Section 36(2) of the Act. He submits that power of the High Court under Section 100(1)(d) of
the Act is obviously much larger and higher in scope than the limited and summary jurisdiction available to the
Returning Officer under Section 36(2). Therefore, unless such non compliance is of a substantial nature, this
Court would not invoke the power under Section 100(1)(d)(i) or (iv) to declare the election void. Mr. V.
Giri, Learned Senior counsel submits that in the present case the election petitioner has not at all pleaded, not to
speak of proving that the improper acceptance of the nomination of the respondent or any non compliance with the
provisions of the Constitution or of the Act or of the rules by the respondent has materially affected the result of the
election, in so far as it concerns the returned candidate, i.e. of the respondent. In order to press home this point he relies
on the decision of the Hon’ble Supreme Court in Mangani Lal Mandal Vs. Bishnu Deo Bhandari, (2012) 3
SCC 314. The Hon’ble Supreme Court in the said case of Mangani Lal Mandal (supra) held at para 10 and
11 as follows :
“10. A reading of the above provision with Section 83 of the 1951 Act leaves no manner of doubt that where a
returned candidate is alleged to be guilty of non-compliance with the provisions of the Constitution or the 1951
Act or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is
essential for the election petitioner to aver by pleading material facts that the result of the election insofar as it
concerned the returned candidate has been materially affected by such breach or non-observance. If the
election petition goes to trial then the election petitioner has also to prove the charge of breach or non-compliance
as well as establish that the result of the election has been materially affected. It is only on the basis of such
pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non-
compliance with the provisions of the Constitution or the 1951 Act or any rules or orders made thereunder
has materially affected the result of the election before the election of the returned candidate could be declared
void.
11. A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does
not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv). 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) is
further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the
returned candidate. In other words, the violation or breach or non-observation or non-compliance with the
provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not
render the election of a returned candidate void Section 100(1)(d)(iv). For the election petitioner to succeed on
such ground viz. Section 100(1)(d)(iv), he 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 view that we have taken
finds support from the three decisions of this Court in: (1) Jabar Singh v. Genda Lal4; (2) L.R.
Shivaramagowda v. T.M. Chandrashekar5; and (3) Uma Ballav Rath v. Maheshwar Mohanty6.”
4. AIR 1964 SC 1200 : (1964) 6 SCR 54
5. (1999) 1 SCC 666
6. (1999) 3 SCC 357”
53. He also has relied on the decision in Surendra Nath Khosla Vs. S. Dalip Singh, AIR 1957 SC
242 to the same effect.
54. He submits that this requirement of pleading and proving that the result of the election of the returned
candidate had been materially affected, has been inserted by the Parliament as far as the grounds for challenge are
based on the sub-clauses (i) to (iv) of sub- section (d) of Section 100(1). Hence, this statutory requirement cannot be
given a go by. He submits that such statutory requirement of proving that the result of the returned candidate has
been materially affected is not required to be pleaded nor to be proved in respect of the rejection of nomination as
provided under Section 100(1)(c). Under Section 100(1)(c) if any nomination has been improperly rejected, once the
same has been proved, the result of the election has to be declared void by the High Court. There is no need
to prove any further that because of the improper rejection of nomination the election of the returned
candidate had been materially affected. According to Learned Senior counsel for the respondent, there is not
even a whisper in the pleadings that the result of the election has been materially affected by the improper
acceptance of the nomination of the respondent. He further submits that there is nothing in the evidence also to
show that the result of the election has been materially affected by the improper acceptance of the nomination of
the respondent. Accordingly, he submits that on this ground alone this petition is liable to be dismissed.
55. Coming to the issue as to whether the nomination of the respondent was improperly accepted or not, Mr. V. Giri,
Learned Senior counsel submits that there was no improper acceptance of the nomination of the respondent
inasmuch as the defect in the affidavit filed by the respondent was not of a substantial character but a minor one.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 303
He submits that the error in giving educational qualification cannot be said to be of a substantial character. He
draws attention of this Court to Section 33A of the Act which requires furnishing of certain information but it
does not mention the requirement for furnishing educational qualification. He also draws the attention of this Court
to Form No. 26 which is the format of the affidavit to be filed by the candidate along with the nomination
paper before the Returning Officer as required under Rule 4A of the Conduct of Elections Rules, 1961. In the
aforesaid form under the heading “Verification” it is clearly mentioned that the deponent is required to make further
declarations about the criminal cases or convictions, etc. and also about the assets and liabilities of the candidate, the
spouse and dependants. Yet, there is no mention of the educational qualifications in the said portion of verification.
He further submits that perusal of the Form 26 would clearly reveal that while there are elaborate and
detailed columns as regards the criminal antecedents and assets and liabilities there is only a simple paragraph for the
educational qualification. Thus, the statutes as well as the judicial pronouncements have been giving more emphasis on
the criminal antecedents and assets and liabilities of the candidates, and same high degree of importance is not
given when it comes to educational qualification. He, therefore, submits that the provision for furnishing
information regarding the educational qualification is to make the voter know as to whether the candidate is literate or
not and nothing more. Hence, nothing more should be read into the requirement of information about educational
qualification.
He submits that the authorities or rule making authorities have put these two categories of information regarding the
criminal antecedents and assets and liabilities at the higher pedestal than the information about educational
qualification for obvious reasons. He submits that in fact, the entire history and background leading to the rendering
of the judgment in Association for Democratic Reforms (supra), clearly indicate that not only the Parliament but
the Hon’ble Supreme Court were deeply concerned with the criminalisation of politics because of large scale
participation of people with criminal track records and also misuse of money, etc. He submits that no such
importance was given to the requirement of furnishing information about educational qualification except for the fact
that the said requirement was only for the purpose of making the electorates aware of the educational qualification of
the candidates. The question of any misuse of authority is not related with the educational qualification, which persons
with criminal background or from propertied class may have. He, therefore, submits that wrong information
regarding education qualification cannot be considered to be of any vital importance or of substantive nature.
Mr. V.Giri, learned Senior counsel has drawn attention of this Court to the observation made by Mr.
Hon’ble Shah, J in para 18 of the judgment in PUCL Vs. Union of India (2003) (supra) to show the concern of
the Courts relating to candidates with criminal background and also about the financial background where the
educational qualification has not been discussed at all, which is reproduced herein below :
“18. So, the foundation of a healthy democracy is to have well- informed citizens-voters. The reason to have right
of information with regard to the antecedents of the candidate is that voter can judge and decide in whose favour
he should cast his vote. It is the voter’s discretion whether to vote in favour of an illiterate or literate candidate. It
is his choice whether to elect a candidate against whom criminal cases for serious or non-serious charges were filed
but is acquitted or discharged. He is to consider whether his candidate may or may not have sufficient assets so that
he may not be tempted to indulge in unjustified means for accumulating wealth. For assets or liability, the
voter may exercise his discretion in favour of a candidate whose liability is minimum and/or there are no overdues
of public financial institution or government dues. From this information, it would be, to some extent, easy to
verify whether unaccounted money is utilized for contesting election and whether a candidate is contesting election
for getting rich or after being elected to what extent he became richer. Exposure to public scrutiny is one of the
known means for getting clean and less polluted persons to govern the country. A little man — a citizen — a voter
is the master of his vote. He must have necessary information so that he can intelligently decide in favour of a
candidate who satisfies his criterion of being elected as an MP or MLA. On occasions, it is stated that we are not
having such intelligent voters. This is no excuse. This would be belittling a little citizen/voter. He himself may
be illiterate but still he would have the guts to decide in whose favour he should cast his vote. In any case, for
having free and fair election and not to convert democracy into a mobocracy and mockery or a farce, information to
voters is a necessity.”
Thus, the right to information of the electorates with regards the criminal antecedents and assets
and liabilities of the candidate has been placed at a higher pedestal and hence also been given specific
statutory recognition by inserting Section 33A in the Representation of People Act, 1951.
He submits that possession of any particular educational qualification is not an essential qualification/requirement
for contesting elections as even an illiterate person also could contest. He submits that it is not really a matter of
educational qualification of the candidate which matters to the voters so long as he is perceived to have the
potential of being a good public servant after being elected. Therefore, though the law requires furnishing of educational
qualification, error in giving such information cannot be said to be of substantial character so as to entail rejection of
the nomination. He submits that what the law requires is the highest educational qualification and law does not
contemplate giving a detailed educational qualification from the lowest level to the highest. Hence, other lower
educational qualifications were not given by the respondent. It is also not the case that the petitioner is illiterate and yet
304 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
he claims to be a very well educated person having an MBA degree. He had already completed his graduation from
Delhi University and also had undertaken post graduation course in Service Industry Management. Therefore, it is
not a case of total lack of educational qualification which would make such error in furnishing wrong
qualification in the affidavit to be of a substantial nature. It is also not a case that because of the educational
qualification given as MBA, it had swayed the decision of the electorates. The election petitioner has not led
any evidence to show that because of the educational qualification given as MBA it led to swaying of votes in
favour of the respondent. In fact, there is nothing to show that the votes garnered by the respondent had anything to
do with the educational qualification of the respondent. He had nothing to gain nor lose by the aforesaid
incorrect information given in the affidavit. He submits that the election petitioner and his agent were examined as
witnesses. But not a single electorate was examined to show that the educational qualification of the petitioner had any
impact on the result of the election. Accordingly, he submits that mistake or wrong furnishing of educational
qualification in the affidavit is not of a substantial character and hence, acceptance of the nomination of the
respondent was not a case of improper acceptance. He submits that when an election of a returned candidate is
challenged before the Hon’ble High Court, Hon’ble High Court has to decide the case by taking into consideration
the entire facts and circumstances emerging before the Court. He, accordingly, submits that if the entire facts and
circumstances as emerged in the present case are considered, no case has been made out by the election petitioner for
declaring the election of the respondent as void.
56. He submits that each and every wrong information furnished in the affidavit will not entail rejection
of the nomination paper. It is only when such defect is found to be a substantial or material lapse that the returning
officer could reject the nomination paper. In this regard, he has relied on the decion of the Hon’ble Supreme Court
in Shambhu Prasad Sharma Vs. Charandas Mahant, (2012) 11 SCC 390 wherein it was held that the form of
the nomination papers is not sacrosanct. What is to be seen is whether there is substantial compliance with the
requirement as to form. Every departure from the prescribed format cannot, therefore, be made a ground for
rejection of the nomination paper. He further draws attention of this Court to decision of the Hon’ble Supreme
Court in Kisan Shankar Kathore (supra), in which the Hon’ble Supreme Court in para 38 therein took the view
that some of the non disclosures or disclosures in the affidavit were considered not to be serious lapse and
the Hon’ble Supreme Court held that such lapses which are not serious in nature cannot be taken into consideration for
declaring election void under Section 100(1)(d)(i) and (iv). The Hon’ble Supreme Court further clarified in para 38
that whether a defect is a serious material lapse or not, would depend on the facts and circumstances of each
case. Therefore, he contends that each and every lapse will not constitute a ground for rejection of nomination. Each and
every lapse has to be examined in the context of the facts and circumstances whether to treat the said as a material lapse
or not. He submits that in the said case only non-disclosure of bungalow in the name of the returned
candidate’s wife and vehicle in the name of returned candidate’s wife were considered to be serious and
major lapses to invite voidation of the election of the returned candidate.
57. Learned senior counsel submits that every wrong information or failure to furnish information by
a candidate will not attract provisions of Section 125A of the Act. It is only such information which the candidate
has reason to believe to be false or concealment of any self-information which was done with the intent to be
elected in the election. Therefore, the information so furnished which has no direct bearing with the intent to be elected
nor which did not lead to any influencing of the voters, such information cannot be deemed to be a material information
and hence, it cannot be clothed with the attribute of substantial character. In the present case it had been submitted that
the furnishing of information as regards the educational qualification was as per requirements of the rules but it had
not been proved by the election petitioner that the said information was given with the intent to be elected in the
election. Accordingly, the wrong information given in the affidavit cannot be said to be of a substantial character.
Learned Senior counsel submits that it cannot be said that the respondent had filed falsely in respect of the
highest educational qualification. It could be at best said that the respondent in giving his highest educational
qualification has committed an error but he has offered the explanation both in pleading and by way of
evidence led before this Court which deserves to be accepted by this Court. This is so in the context of total absence
of any gain the respondent would have stood to derive by giving his highest educational qualification as “MBA,
2004, Mysore University” instead of a Post Graduate Diploma from an Institute in Chandigarh, which is also
relevant.
58. Mr. Kumarjit, Learned Senior counsel appearing for the petitioner, however, submits that furnishing
of the information as regards the educational qualification by the respondent if it is found to be not correct
would mean that the respondent had not furnished any information at all. He submits that if the information is
found to be incorrect it would be no affidavit at all as filing of such affidavit with false information will render the
requirement of filing of an affidavit a mandatory information in terms of the direction issued by the ECI as
well as the requirement of Rule 4A nugatory rendering such nomination paper to suffer from defect of
substantial character and as such, the nomination paper is liable to be rejected.
59. As regards the contention of the respondent that in terms of provision of Section 100(1)(d)(i) it has to be
proved that the result of the returned candidate has been materially affected by the improper acceptance of the
nomination of the respondent, it has been submitted that in the present case, the same is not required. He submits
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 305
relying on the decision of the Hon’ble Supreme Court in Durai Muthuswami Vs. N. Nachiappan & Ors,
(1973) 2 SCC 45 in which the Hon’ble Supreme Court held that where it is a case of only one seat to be
filled and there are only two candidates and if the nomination paper of the returned candidate is found to be invalid,
there is no further need to prove that the result of the election of the returned candidate had been materially affected,
in which event the only option left before the Court is to declare the other candidate with valid nomination paper to be
elected. He submits that the question whether the result of the election of the candidate is materially affected by
the improper acceptance of a candidate would arise only when there are more than two candidates in an
election. However, in the present case, it is not so as only the petitioner and the respondent had contested the
election and in the event the respondent’s nomination paper is found to be liable to be rejected, the petitioner is to
be declared elected. He submits that this has been so held by the Hon’ble Supreme Court in Kisan
Shankar Kathore (supra).
60. Accordingly, Mr. Kumarjit, learned Senior counsel submits that when there is no need to prove that the
election of the respondent has been materially affected by the improper acceptance of the nomination of the
respondent, non pleading on this aspect is not fatal as there is no need to plead so.
Mr. V.Giri, however, tried to distinguish the aforesaid judgment in Durai Muthuswami (supra) by contending
that the said case related to the case where the elected returned candidate incurred disqualification under Section 9A of
the Act. Thus, it comes under Section 100(1)(a) which does not require to plead or prove that the election hasbeen
materially affected as in the case of Section 100(1)(d) of the Act.
61. Mr. Kumarjit, learned Senior counsel submits that from the evidence it is clear that the respondent has not
denied specifically that he does not possess the MBA degree from Mysore University and since he has not denied
this entry in the affidavit, it is clear that he had filed a false affidavit. He submits that it amounts to a substantial
lapse, and hence, the nomination of the respondent was liable to be rejected. He submits that from the evidence on
record it is clearly seen that he did not execute the affidavit submitted along with the nomination papers by taking
oath before the Oath Commissioner or the competent authority and as such, the affidavit cannot be said to be a
valid affidavit and hence on this ground also the nomination of the respondent was liable to be rejected.
62. From the rival contentions, the issue boils down to the finding as to whether filing of the affidavit by the
respondent with the entry “MBA, 2004, Mysore University” amounts to filing of false affidavit and whether such
defect is of substantial character which would entail rejection of the nomination paper of the respondent. If it is
held that filing of such affidavit does not amount to a defect of substantial character there is no further need
to proceed with the petition and the election petition will be liable to be dismissed. On the other hand, if it is found
that filing of such affidavits by the respondent amounts to lapse of a substantial nature, it was incumbent on the
returning officer not to have accepted the nomination of the respondent and if accepted, would be a case of
improper acceptance of the nomination of the respondent.
While deciding this issue it may be necessary to examine the scope and parameters for deciding such issue by
this Court. Whether the nomination paper is to be accepted or rejected at the time of scrutiny is plainly within the
domain of the returning officer. The returning officer has to decide within the confines of Section 36 of the RP
Act and relevant laws holding the field. This Court is called upon to examine whether the acceptance of the nomination
paper by returning officer was proper or not. For doing this Court has to assume the role of the returning
officer to decide whether to accept the nomination of the respondent or to reject it. This Court is of the view
that while undertaking this exercise it may not be necessary to examine or take into consideration facts and
circumstances which may arise after the scrutiny. The circumstances which may arise after the election may come into
relevance only at the time of deciding whether the improper acceptance of the respondent ultimately materially
affected the result of the returned candidate as provided under Section 100(1)(d) of the RP Act, 1951. Therefore, this
Court is of the view that it may not be necessary to take into consideration facts and circumstances which are post
scrutiny of the nomination paper as well as post election, which could be considered only at the second stage
of the consideration required under Section 100(1)(b) i.e. as to whether such improper acceptance of the
nomination had materially affected the result of the returned candidate.
The contention of Sri V.Giri, Ld. Senior Counsel that whether by this information the electorates had
been influenced or not needs to be taken into account, may not be correct in as much as the fundamental idea for
requiring furnishing these information about character, assets and educational qualifications is to enable the voters to
make their choice effectively and in the manner they want while casting their votes. These requirements, may not on
their own, per se, prevent criminalisation and other ills of electoral politics but certainly make the voters aware to make
their choice more meaningful. The reason for this requirement to furnish these information is the fundamental right of
the electorate citizens under Art. 19(1)(a) to know the backgrounds of the candidates for an effective choice. Therefore,
the issue whether this incorrect information about the educational qualification had indeed swayed the voters is really
not relevant. Of course, what may be relevant is whether such suppression of fact or misleading or wrong
information has the potential to influence votes. Whether it actually influenced or not is immaterial as this Court is to
examine whether the acceptance of nomination by the Returning Officer was proper or improper and the Court is
only undertaking the exercise by way of postponement of the exercise of adjudicating the acceptance or rejection
306 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
irrespective of the result of the election. The result of the election will become relevant only at the second stage
of the exercise contemplated under Section 100(1)(d), whether such improper acceptance of nomination
materially affected the result of the election of the returned candidate.
63. Thus positing in the place of the returning officer, this Court has to examine as to the factors to be considered
and criteria to be adopted while deciding whether such a defect is of substantial character or not. In the present
case, before we examine it, it may be first determined as to whether there was any defect at all. Only when
it is found that there is a defect, the second consideration, whether such a defect is of substantial character or not, will
arise. The election petitioner has claimed that the respondent had falsely stated his educational qualification as “MBA,
2004, Mysore University” which the election petitioner contends to be a false statement. The respondent, however,
has not categorically denied the averment of the election petitioner about the factum of the aforesaid entry about the
educational qualification in his Form 26 affidavit. He, however, claims that it was a clerical error and he assigned
certain reasons for it which have been already mentioned above. The fact remains, as established in course of the trial,
that the respondent did not possess MBA from Mysore University. He neither underwent MBA degree nor studied in
Mysore University. What had been claimed by the respondent is that it was a clerical one. If the educational
qualification of the respondent is “MBA, 2004, Mysore University” is held to be an error, the next question arise
is whether it was a clerical error as claimed by the respondent. Clerical error as in the normal parlance would
mean a mistake which may have crept in inadvertently and unintentionally, due to certain typographical or mechanical
mistake. Such a clerical error, therefore, would be a mistake which was unintended, but purely due to inadvertence
which could be corrected without making any fundamental changes in the instrument or the document. “Clericalerror”
has been defined in Black’s Law Dictionary, 10th Edition as
“An error resulting from a minor mistake or inadvertence and not from judicial reasoning or determination; esp.,
a drafter’s or typist’s technical error that can be rectified without serious doubt about the correct reading. Among
the numberless possible examples of clerical errors are omitting an appendix from a document; typing an
incorrect number; mis-transcribing or omitting an obviously needed word; and failing to log a call. A court
can correct a clerical error in the record at any time, even after judgment has been entered.”
This expression has been also interpreted by the Hon’ble Supreme Court in Sooraj Devi Vs. Pyare Lal, (1981) 1
SCC 500 as follows :
“4. ……………………A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the
court. It represents that which the court never intended to say. It is an error apparent on the face of the record
and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of
calculation, and a clerical error is a mistake in writing or typing. Master Construction Co. (P) Ltd. v. State of
Orissa2.
2 AIR 1966 SC 1047 : (1966) 3 SCR 99 : (1966) 17 STC 360”
The question, therefore, which arises in this particular case is whether the aforesaid entry regarding educational
qualification can be deemed to be clerical error or not. In his written statement, the respondent claimed that
the said entry was made as a result of “thought process” on the ground that it was discussed amongst friends that it is
nowadays desirable to have MBA degree from Mysore University. In other words, it was claimed to be reflection
of the thought process of the respondent. However, though he had pleaded in his written statement, this explanation
has not come out clearly, cogently and unambiguously in the testimonies of his witnesses. The respondent in his
evidence before the Court during the cross examination claims that he does not remember what had been
instructed to his agents or the lawyer who filled up the form. The respondent claims that he did not fill up the
form in his own handwriting but it was filled up by the lawyer on his behalf. However, in his statement he does not
remember whether the entry was made in his affidavit by his counsel or not or by himself. He also claims to have
no remembrance as to the mentioning of the highest educational qualification at the time of filing of nomination paper
in the affidavit. In the election petition, it is the onus of the petitioner to prove his case and as a corollary to prove all
material facts which are pleaded in the election petition failing which the petition would be liable to be dismissed, as not
proved. However, in the present case, the election petitioner has specifically pleaded that the respondent had put his
educational qualification in the affidavit as “MBA, 2004, Mysore University”. The respondent has not specifically
denied that he has not put “MBA, 2004, Mysore University” in his affidavit but he has merely stated that the said
mistake was a clerical one. Admittedly, the aforesaid qualification written in his affidavit is not correct. In that event,
the onus shifts to the respondent to prove that such a mistake was a clerical mistake, hence, a genuine and not
intentional. However, the respondent had not been able to discharge this onus to show that it was a clerical mistake.
The respondent (DW 1) in his testimony had stated that his nomination papers and enclosed affidavits were
prepared and filled up by his counsel (DW 3) on the instructions of his agent (DW 2). However, his agent DW 2
states in his testimony that though the respondent had given him the details of the educational qualification in writing
with necessary copies of testimonies, these were lost enroute to the chamber of his lawyer, DW 3, because of which his
agent DW 2 who was under impression that the Respondent (DW 1) had passed MBA from Mysore University
instructed the lawyer (DW 3) to fill up the particular column no. 9 in the affidavit. His agent DW 2 further
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 307
states that later, the Respondent put his signature on the affidavit before the Oath Commissioner without
seeing the contents of the affidavit. Assuming this narration by his agent DW 2 to be correct, yet it cannot
detract from the fact that, even the information or assumption of the agent DW 2 that the respondent had
done MBA from Mysore University was mistaken, yet that information was consciously relayed on to the
lawyer DW 3 as the correct educational qualification of the Respondent (DW1) while filling up the affidavit.
Since, giving particulars in an affidavit for the purpose of nomination in an election is a solemn and serious
business, the agent DW 2 ought to have reconfirmed about the educational qualification of the Respondent
(DW 1) at the time of filling up or at least before it was signed and executed by the DW 1 from the respondent,
which does not seem to have been done. Therefore, this Court is of the view that the qualities and attributes which
would make an error “clerical” seem to be missing in the present case. Giving wrong information about the
educational qualification by the Election Agent (DW 2) to the lawyer (DW 3) at the time of filling up the affidavit
by DW 3 can not be construed to be a clerical error. It clearly amounts to a negligent act on the part of the DW 2 who
is the election agent of the DW1. In any event, even if it is clerical error, till it is not rectified remains an error. That
apart, the deponent of an affidavit shall be responsible for the entry made in or the contents of the affidavit. It was
the responsibility of the respondent to have checked the contents before executing the same.
64. The Hon’ble Supreme Court while dealing with the issue of a defect which was held to be a technical one and
not of substantial character, in Harikrishna Lal Vs. Babu Lal Marandi, (2003) 8 SCC 613, referred to the
maxim “falsa demonstratio non nocet, cum de corpore constat” to show that if part of a description of an
instrument is correct, and which correct part describes the subject with sufficient legal clarity, the untrue part will not
vitiate the instrument as held in para 13 thereof which is reproduced hereinbelow:
“13. A reference may usefully be made to the maxim “falsa demonstratio non nocet, cum de corpore constat” which
means mere false description does not vitiate, if there be sufficient certainty as to the object. “Falsa
demonstratio” means an erroneous description of a person or a thing in a written instrument; and the above rule
respecting it signifies that where the description is made up of more than one part, and one part is true, but the
other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be
rejected and will not vitiate the device; the characteristic of cases within the rule being that the description, so
far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. (See Broom’s Legal
Maxims, 10th Edn., pp. 426-27th .) Broom quotes (at p. 438) an example that an error in the proper name or in the
surname of the legatee should not make the legacy void, provided it could be understood from the Will what person
was intended to be benefited thereby.”
Applying the aforesaid maxim and principle, we may try to examine if any part of the description of his
educational qualification in the affidavit would describe his educational qualification with sufficient clarity.
Unfortunately, none of the parts, viz., “MBA” or “Mysore University”, (the year “2004” being relevant
only with reference to either the degree or the University) is true nor has any nexus or indication towards his real
and admitted educational qualification that he did his graduation from Kirori Mal College, Delhi University or that
he did PG Programme in Service Industry Management from Chandigarh. If he had merely written “MBA” without
the other words “Mysore University” and claimed that he had mentioned MBA under the bonafide impression
that PG Programme in Service Industry Management is equivalent to “MBA”, the matter could have been
otherwise. Also, if he had mentioned in the affidavit about his graduation from Kirori Mal College, Post-graduate
Programme in Service Industry Management, along with the present entry, the matter could have otherwise
also, as it would have indicated with sufficient clarity his educational qualification. In the present case, the
evidence is on record that he neither underwent “MBA” course nor studied in Mysore University at any point of
time. Both the entries are incorrect. In other words, the entire entry is incorrect.
Hence, this Court finds it difficult to accept the plea of the respondent that the said defect is a “clerical error”.
65. This takes us to the next stage of consideration. Even if the educational qualification mentioned by the respondent
in his affidavit is held to be not a clerical mistake, yet it needs to be decided as to whether such a mistake is of
substantial character. It is only when such defect or mistake is found to be of substantial character that the
Returning Officer is under legal obligation to reject the nomination and not otherwise, vide Section 36(4) of the
RP Act.
The election petitioner contends that it is a defect of substantial character which the respondent contends to the
contrary.
As already discussed above, it is the contention of the petitioner that this information regarding educational
qualification is required to be given in terms of the decision of the Hon’ble Supreme Court in Union of
India Vs. Association for Democratic Reforms and Another (supra) and reiterated in PUCL case (supra)
in which it has been observed that suppression or non furnishing of information would make the defect substantial
in nature. He submits that as per instructions issued by the Election Commission of India in 2002 as well as the decision
in Resurgence India (supra) it has been stated that non furnishing of the affidavit by the candidate or furnishing of
308 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
any wrong or incomplete information or suppression of any material information will result in rejection of nomination
paper.
On the other hand, the respondent’s plea is that requirement of putting the educational qualification is not of
such importance as in the case of information relating to criminal antecedents and assets. Hence, that mistake in
giving correct educational qualifications cannot be considered to be of substantial nature to invite rejection of
nomination. His plea is that requirement of giving information about educational qualification cannot be equated
with the requirement of giving information regarding criminal antecedents and assets as these two sets of
information rest at a higher pedestal requiring a higher standard of scrutiny. In case of educational
qualification, it has been pleaded that it must be subjected to lesser rigour at the time of scrutiny. It has been
submitted that it deserves more leniency in scrutiny. Stringent standards ought not apply as in the case of criminal
antecedents and assets. The requirements of furnishing information about criminal antecedents and assets are admittedly
for serving an important public interest of cleansing the politics of criminal elements and to prevent misuse of money
and corruption. However, information relating to educational qualification has nothing to do with any of the
electoral evils plaguing the Indian political system as even an illiterate can stand for election and can hold public
offices. Mr. Giri, Ld. Senior Counsel has strenuously argued that information relating to educational qualification has
not been really considered critical and crucial as in the case of educational qualification by the Courts as well in
the statutes.
The arguments advanced by Sri V. Giri, Ld. Senior Counsel is quite attractive and the plea of the respondent that
wrong information about educational qualification is not of a substantial nature as to invite rejection of nomination
could have been upheld but for the decision in PUCL Vs. Union of India, (2003) 4 SCC 399. In fact the
very persuasive argument advanced by Sri V.Giri, Ld. Senior Counsel finds echo in the view expressed by
Hon’ble P.Venkatarama Reddi J. as regards the not so important aspect of the educational qualification of the
candidate, which however, did not find favour with the majority in the said case.
The Hon’ble Supreme Court in the case of Association for Democratic Reforms (supra) had issued directions
to the Election Commission to call for information by way of affidavit by issuing necessary order in
exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to
Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the
criminal antecedents, if any, assets and liabilities and also of the educational qualification of the candidate. Pursuant
to the aforesaid directive, the Election Commission issued directions under its Order dated 28.06.2002 which also
contains the stipulation that furnishing of any wrong or incomplete information or suppression of any material
information by any candidate in or from the said affidavit may also result in the rejection of the nomination
paper where such wrong or incomplete information or suppression of material information is considered by the
Returning Officer to be a defect of substantial character, apart from inviting penal consequence under the Indian Penal
Code for furnishing wrong information. The Hon’ble Supreme Court, however, clarified in PUCL case that the
rejection of the nomination paper for furnishing wrong information or concealing material information at the time of
scrutiny by a summary enquiry will not be permissible as in many cases, the candidate may not be able to furnish
clinching proof or evidences at that stage, but only at a later stage. However, the basis for rejection, viz., wrong,
incomplete information or lack of information, was not interfered with and the Hon’ble Supreme Court reiterated
the earlier directions issued in the Association for Democratic Reforms (supra). In the said decision in PUCL,
Hon’ble Venkatarama Reddi J., in a slight departure from the view of Hon’ble M.B.Shah J., expressed the opinion
that disclosure of information regarding educational qualifications of a candidate is not an essential component of
the right to information flowing from Article 19(1)(a). Hon’ble P.Venkatarama Reddi J. took the view that such
information is not a vital and useful piece of information to the voters, in the ultimate analysis. If the aforesaid view of
Hon’ble Venkatarama Reddi J. had prevailed, which also was canvassed by Sri V.Giri Ld. Senior Counsel for the
respondent, it could always be claimed that information regarding educational qualification not being a vital or
essential component of Article 19(1)(a), any such defect in such information, as a corollary, would not be a
defect of a substantial character. However, it is not to be so. Hon’ble Dharmadhikari J, in his third opinion disagreed
with the aforesaid view of the Hon’ble P. Venkatarama Reddi J. as clearly mentioned in para no. 132 of the
judgment in PUCL. In that view of the matter, it cannot be held that information regarding educational qualification is
not a vital component of right to information of the voter under Article 19(1)(a). If it is a vital component,
which requires to be disclosed, such a defect in not correctly disclosing the educational qualification cannot be said to
be of not substantial nature.
In the present case, the information furnished has been established to be incorrect, not even partially, even by
applying the maxim ““falsa demonstratio non nocet, cum de corpore constat ”. Thus, this Court is not persuaded to
accept the plea of the respondent that it was a clerical error. The clear inference that can be drawn is that the
respondent by furnishing information which is wholly incorrect has not furnished any substantive information as regards
his educational qualification. The entire entry is incorrect. It does not in any way indicate the correct educational
qualification of the respondent except that he is not illiterate. The information furnished by him is no information
in the eye of law which is not different, in practical terms, from leaving the column blank, which would entail
rejection of the nomination in terms of the decision in Resurgence India (supra). The direction of the Hon’ble
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 309
Supreme Court for furnishing information regarding educational qualification which has been held to be a vital
component of Article 19(1)(a) has not been substantially complied with by the respondent rendering such defect, a
defect of substantial character. The entirely wrong information was no information at all as far as the voter is
concerned. Whether it was unintentional or due to inadvertence would not matter so long as the said incorrect entry
remains. Though it has not been proved that it actually swayed the votes in his favour, the fact that it had the
potential to do so cannot be wholly ignored. Therefore, this Court would hold that the defect in furnishing
information of the educational qualification by the respondent is substantial in nature. In that event, the nomination
of the respondent was liable to be rejected. Since, it was not rejected though it was liable to be rejected, it is a case
of improper acceptance.
Reliance by Sri V.Giri, Learned Senior Counsel on the decision of Shambhu Prasad Sharma (supra) is
also misplaced. The Hon’ble Supreme Court in that case was dealing with defect in the format and not a case of
concealment of information of outstanding liabilities as observed in paragraph no. 19 of the said judgment, which is
reproduced herein below.
“19. 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. 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.”
Hence, the factual situation being different, the aforesaid decision will not be applicable in the present case.
In view of the above, Issue no. (iii) as to whether the respondent had filed false affidavit in respect of the highest
education qualification in the form, in which the respondent had mentioned “MBA Mysore University” is decided in
favour of the petitioner and against the respondent and the issue whether it was merely a clerical error is
decided against the respondent.
And Issue no. (i) as to whether the Returning Officer of the 27th Moirang AC had illegally accepted the nomination
paper of the respondent is decided in favour of the petitioner and against the respondent.
66. This leads us to the next stage of consideration. If the nomination has been improperly accepted, what
is the legal consequence? Section 100(1)(d) mandates that, in such an event, if it materially affects the result of the
election, in so far as it concerns the returned candidate, the election of the returned candidate is to be declared
void.
67. There has been much debate as to the meaning and scope of the expression “materially affected”.
Suffice to say that it is a mandatory requirement, this condition must be also fulfilled before the election of
the returned candidate can be declared void.
In the present case, there is only one assembly seat and two candidates to deal with. Thus, in the event, the
nomination of the returned candidate is found to be improperly accepted on the ground that it ought to have been
rejected or is liable to be rejected, the legal consequence as far as the returned candidate is concerned is that he
could not have contested the elections. In which event, he would be presumed to have obtained no votes at all. In
such a case, the question of considering whether the improper acceptance of the returned candidate
materially affected the result of the returned candidate does not arise as it already stood materially affected
the moment his nomination is rejected or held to have been improperly accepted. Since, by virtue of the finding
that the nomination of the returned candidate was improperly accepted, he cannot be reckoned with other candidates
with valid nominations. He will remain out of the contest. He could not have contested. His successful contest will
not be counted. Hence, when the aforesaid mandatory statutory requirement, i.e., whether such improper acceptance
materially affected the result of the returned candidate is applied, the effect would be that it would be applying to a
candidate who has been already debarred from contesting and who will be deemed to be not entitled to contest the
election. By virtue of being debarred from contesting due to rejection of nomination of the returned candidate, his
result stands materially affected. The end result and legal effect of such improper acceptance of the nomination of the
returned candidate is the same. As the returned candidate whose nomination is found to be improperly accepted will be
deemed to be out of electoral contest, it matters little, even if the petitioner has not really pleaded that by improper
acceptance of the nomination of the respondent, the result of the election of the respondent has been materially
affected. There is no need for any proof of this requirement at this stage as the returned candidate stands automatically
eliminated from the electoral fray. If no such proof is required, absence of such pleading to prove such a self evident fact
hardly matters.
310 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
One may look this aspect from another perspective. If the very basis of the election of the returned candidate,
i.e., the nomination of the candidate which is stated to be valid, is later on found to be not valid, as in the present
case, the very basis and foundation for sustaining the election of the returned candidate goes. In other words, once the
foundation is taken away, the election will have no basis to stand and thus will be rendered otiose. He cannot be
treated to have been elected at all. Hence, the moment there is a finding that the nomination of the returned candidate
has been improperly accepted, it immediately materially affects the result of the returned candidate.
Accordingly, if there be any burden on the petitioner to prove that the result of the election of the returned
candidate has been materially affected by improper acceptance of the nomination of the returned candidate, such a
burden also gets discharged immediately. Thus, there will not be any need to prove further on the part of the
petitioner that the improper acceptance of the nomination of the returned candidate has materially affected the result of
the election of the returned candidate.
In this regard we may refer to the decision of the Hon’ble Supreme Court in Vashist Narain Sharma Vs.
Dev Chandra and Others, (1955) 1 SCR 509, in which the Hon’ble Court also contemplated a
situation where the person whose nomination has been improperly accepted is the returned candidate himself, as
mentioned in para no. 9 thereof as follows :
“9. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a
nomination has materially affected the result of the election lies upon the petitioner but he argues that the question
can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference
between the returned candidate and the candidate securing the next highest number of votes,
(2) where the person referred to above secured more votes, and (3) where the person whose nomination has been
improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted
votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and
the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected.
So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are
not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the
returned candidate and the candidate securing the next highest number of votes must lead to the necessary
inference that the result of the election has been materially affected. That is a matter which has to be proved
and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the
wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a
variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to
one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a
difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold
without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to
enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would
not interfere in his favour and would allow the election to stand.”
In the said case, the Hon’ble Supreme Court was dealing with Section 100 as it stood then in which in both the
cases of improper acceptance and improper rejection of nomination, it was required to show that it materially
affected the election as mentioned in para no.4 thereof as follows:
“4. ............................. Section 100 gives the grounds for declaring an election to be void. The material
portion is as follows:
“(1)If the Tribunal is of opinion— (a)-(b)
*
*
*
(c) that the result of the election has been materially affected by the improper acceptance or rejection of any
nomination, the Tribunal shall declare the election to be wholly void. It is under this sub-section that the
election was sought to be set aside.”
5. Before an election can be declared to be wholly void under Section 100(1)(c), the Tribunal must find that “the result
of the election has been materially affected.” These words have been the subject of much controversy before the
Election Tribunals and it is agreed that the opinions expressed have not always been uniform or consistent. These
words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of
votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in
such a manner between the contesting candidates as would have brought about the defeat of the returned
candidate…….”
Further, in Durai Muthuswami Vs. N. Nachiappan, (1973) 2 SCC 45, this aspect was also
considered where the Supreme Court also dealt with a situation where one seat was to be filled and there were
only two contestants. In the said case, the Hon’ble Supreme Court held that,
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 311
“3. Before dealing with the question whether the learned Judge was right in holding that he could not go into the
question whether the 1st respondent’s nomination has been improperly accepted because there was no allegation in the
election petition that the election had been materially affected as a result of such improper acceptance, we may look into
the relevant provisions of law. Under Section 81 of the Representation of the People Act, 1951 an election petition
calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section
100 and Section 101. It is not necessary to refer to the rest of the section. Under Section 83(1) (a), insofar as it is
necessary for the purpose of this case, an election petition shall contain a concise statement of the material facts on
which the petitioner relies. Under Section 100(1) if the High Court is of opinion—
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act ….
(b)-(c)
*
*
*
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance of any nomination, or
(ii)-(iii)
*
*
*
the High Court shall declare the election of the returned candidate to be void. Therefore, what Section 100
requires is that the High Court before it declares the election of a returned candidate is void should be of opinion that
the result of the election insofar as it concerns a returned candidate has been materially affected by the improper
acceptance of any nomination. Under Section 83 all that was necessary was a concise statement of the materiel facts on
which the petitioner relies. That the appellant in this case has done. He has also stated that the election is void because of
the improper acceptance of the 1st respondent’s nomination and the facts given showed that the 1st respondent was
suffering from a disqualification which will fall under Section 9-A. That was why it was called improper acceptance.
We do not consider that in the circumstances of this case it was necessary for the petitioner to have also further alleged
that the result of the election insofar as it concerns the returned candidate has been materially affected by the
improper acceptance of the 1st respondent’s nomination. That is the obvious conclusion to be drawn from the
circumstances of this case. There was only one seat to be filled and there were only two contesting candidates. If the
allegation that the 1st respondent’s nomination has been improperly accepted is accepted the conclusion that would
follow is that the appellant would have been elected as he was the only candidate validly nominated. There can be,
therefore, no dispute that the result of the election insofar as it concerns the returned candidate has been
materially affected by the improper acceptance of his nomination because but for such improper acceptance he would
not have been able to stand for the election or be declared to be elected. The petitioner had also alleged that the election
was void because of the improper acceptance of the 1st respondent’s nomination. In the case of election to a single-
member constituency if there are more than two candidates and the nomination of one of the defeated candidates
had been improperly accepted the question might arise as to whether the result of the election of the returned
candidate had been materially affected by such improper reception. In such a case the question would arise as to
what would have happened to the votes which had been cast in favour of the defeated candidate whose nomination
had been improperly accepted if it had not been accepted. In that case it would be necessary for the person
challenging the election not merely to allege but also to prove that the result of the election had been materially
affected by the improper acceptance of the nomination of the other defeated candidate. Unless he succeeds in proving
that if the votes cast in favour of the candidate whose nomination had been improperly accepted would have gone in
the petitioner’s favour and he would have got a majority he cannot succeed in his election petition. Section
100(1)(d)(i) deals with such a contingency. It is not intended to provide a convenient technical plea in a case like this
where there can be no dispute at all about the election being materially affected by the acceptance of the improper
nomination. “Materially affected” is not a formula that has got to be specified but it is an essential
requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The
learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and
the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground
on which the 1st respondent’s election should be declared to be void. He had also given the material facts as required
under Section 83(1)(a). We are, therefore, of opinion that the learned Judge erred in holding that it was not
competent for him to go into the question whether the 1st respondent’s nomination had been improperly accepted.”
68. In the light of the aforesaid two decisions of the Hon’ble Supreme Court, even though it is a statutory
requirement that in the event of improper acceptance of nomination paper, the election petitioner has still to
show that it materially affected the result of the returned candidate, in case of only two contesting candidates, if the
nomination of the returned candidate has been found to be improperly accepted, the material effect it has on the
result on the returned candidate is self evident, and hence, need not be proved separately. The objection by Sri V.
Giri, Learned Senior Counsel for the respondent that in the case of Durai Muthuswami (supra), the Hon’ble
Supreme Court was dealing with Section 9A which disqualifies any candidate from contesting from the very beginning
cannot be sustained as the Hon’ble Supreme Court also specifically dealt with this requirement in the light of Section
100(1)(d)(i) that such improper acceptance of nomination materially affected the result of the returned candidate.
312 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
The decision in Shambhu Prasad Sharma (supra) relied upon by Sri V. Giri, Ld. Senior Counsel was decided
in a different context. The election of the returned candidate was challenged on the ground of suppression of facts
relating to the assets of the second wife of the returned candidate by invoking the provisions of Section 100(1)(d)(iv) of
the Act. Section 100(1)(d)(i) relating to improper acceptance of the nomination of the returned candidate was
not involved nor was an issue in the said case. Finding against the returned candidate under sub-clause (iv) of clause
(d) of sub section 1 of Section 100 does not automatically oust the returned candidate from the electoral fray as in the
case of a returned candidate whose nomination will be deemed to be rejected because of improper acceptance. If Section
100(1)(d)(i) had been also involved in the said case, the matter would have been otherwise. Though sub-clauses (i) and
(iv) are placed under the same clause (d) under Section 100(1), when it concerns the returned candidate,
operation of law seems to be different as discussed above. Once it is proved that the acceptance of the nomination of
the returned candidate was improper, he is deemed to have been eliminated from the first round of the contest itself,
viz., scrutiny stage. Hence, his participating in the second round does not arise, where the Court is to consider
whether the improper nomination of a candidate will materially affect the election of the returned candidate.
When the returned candidate is not more in the fray having been eliminated by virtue of finding of improper acceptance
of nomination, nay, rejection which was merely “deferred”, in the expression of the Hon’ble Supreme Court in
paragraph no. 43 in Kishan Shankar Kathore’s case (supra), the question of examining whether such improper
acceptance has materially affected the election of the returned candidate does not arise. Therefore, this Court is of
the view that the said decision in Shambhu Prasad Sharma (supra) will not be applicable in the present case.
Similarly, in Mangani Lal Mandal (supra) relied upon by Sri V. Giri, Learned Senior Counsel for
respondent, the Hon’ble Supreme Court was dealing with a case where the challenge was based on Section
100(1)(d)(iv) and the issue of improper acceptance of nomination under Section 100(1)(d)(i) was not involved.
Hence, for the same reasons as discussed above, this decision will be of no avail to the respondent.
As regards the decision in Surendra Nath Khosla (supra) relied upon by Sri V. Giri, Learned Senior Counsel,
the matter relates to improper rejection of nomination of a candidate. As the principle governing improper
rejection of nomination of a candidate stands on a different footing, the said judgment will also not be applicable.
Accordingly, the Issue No. (ii) as to whether the election of the respondent had been materially affected by the
acceptance of the nomination paper of the respondent by the R.O. of 27th - Moirang A/C is decided in favour of
the petitioner and against the respondent.
69. In view of the findings recorded in respect of the Issues No. (i), (ii), (iii), (iv) and (v), the obvious
conclusion is that the respondent is to suffer the legal consequence under Section 100(1)(d)(i) for having not given
the correct information about his educational qualification in his affidavit in Form 26 at the time of filing nomination
paper, which had been held to be a defect of substantial character, and hence would be covered by the decision of the
Hon’ble Supreme Court in Kisan Shankar Kathore (supra). The submission of Sri V. Giri, Ld. Senior
Counsel for the respondent that the said decision was rendered in the context of misinformation regarding the assets
and not about educational qualifications will not make any difference as it is the similar issue of wrong/incomplete
information in the affidavit of a material fact.
The contention of Mr. V. Giri that the Hon’ble Supreme Court had not really decided on the issue which
itself framed para 36.2 of the judgment as to whether non-disclosure of the information has materially
affected the result of the election, is really not material in view of the fact that in the present case we are dealing
with only two candidates and out of which one, the respondent and returned candidate, has been found to be not
entitled to contest the election for the reasons discussed above. The Bombay High Court had considered this aspect of
which the Hon'ble Supreme Court took note as evident from paragraph no. 32 of the judgment which is reproduced
herein below:
“32. Issue 8 pertains to the question as to whether the election result was materially affected because of non-
disclosure of the aforesaid information. The High Court took note of the provisions of Sections
100(1)(d)(i) and (iv) and discussed the same. Thereafter, some judgments cited by the appellant were
distinguished and deciding this issue against the appellant, the High Court concluded as under:
“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.
138. The avowed purpose of filing the affidavit is to make truthful disclosure of all the relevant matters
regarding assets (movable and immovable) and liabilities as well as criminal actions (registered, pending
or in respect of which cognizance has been taken by the court of competent jurisdiction or in relation to
conviction in respect of specified offences). Those are matters which are fundamental to the accomplishment of
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 313
free and fair election. It is the fundamental right of the voters to be informed about all matters in relation to such
details for electing candidate of their choice. Filing of complete information and to make truthful disclosure in
respect of such matters is the duty of the candidate who offers himself or who is nominated for election to
represent the voters from that constituency. As the candidate has to disclose this information on affidavit, the
solemnity of the affidavit cannot be allowed to be ridiculed by the candidates by offering incomplete
information or suppressing material information, resulting in disinformation and misinformation to the voters. The
sanctity of disclosure to be made by the candidate flows from the constitutional obligation.”
70. The respondent has to suffer this consequence not because he has indulged in any corrupt practice or that such
information had influenced the voters. In fact, it has not been proved that he had indulged in any corrupt
practice or that because of this wrong information he had gained any undue advantage during the elections.
This error in giving information of educational qualification cannot be considered in the same degree of culpability for
giving wrong information about the character and assets of the candidates as pleaded by the respondent. But the fact
remains that information regarding educational qualification is a very vital piece of information from the perspective the
voter as reiterated by the Hon’ble Supreme Court, failure to furnish which would amount to be a material
lapse. Of course, it has not been also proved that he had deliberately gave this wrong information to gain any undue
advantage. At most it can be said to be negligence on the part of the respondent. Yet, the consequence of
furnishing substantially wrong information about educational qualification, which the Hon’ble Supreme Court has held
to be a vital piece of information cannot be avoided, as the law mandates that for such lapses of substantial
character at the time of filing nomination would entail rejection of nomination. Since the information furnished by
the respondent as regards the educational qualification has been found to be wholly incorrect, it has to be
considered as a defect of substantial character. Hence, the nomination of the respondent suffered from a defect of
substantial character.
71. In the result, for the reasons discussed above, the election of the respondent is declared void under Section
100(1)(d)(i) of the Representation of People Act, 1951.
72. Having declared the election of the respondent as void, the natural consequence in the present case would have been
to declare the only other remaining candidate with valid nomination in the election for the 27th Moirang Assembly
Constituency, to be elected, by default, in terms of Section 53(2) of the Representation of People Act,
1951. However, this is not be so.
73. The election petitioner had submitted his nomination as a candidate of the Nationalist Congress Party (NCP)
Manipur State for contesting the election in the 27th Moirang Assembly Constituency in the last election to the 10th
Legislative Assembly held on 28.01.2012 in which the respondent was declared elected. However, after filing the
present election petition on 18.04.2012, the petitioner resigned from the Nationalist Congress Party (NCP)
and joined the Bharatiya Janata Party (BJP), Manipur. When he appeared as a witness as PW 1 and when
asked by the Court as to whether he still remains a member of the NCP, he candidly stated before this Court that he
is no longer a member of the NCP. When asked by the Court as to whether he had resigned from the NCP, he answered
that he had tendered resignation from the NCP in the later part of 2013. Further, to the query of the Court as to
whether he is a member of any other political party, he replied that he joined the BJP in the concluding part of
2013 and he has been a member of the BJP since then. Therefore, in his testimony before this Court he clearly
stated that he had resigned from the NCP in 2013 and joined the BJP in 2013 and he continues to remain a
member of the BJP. After the recording of evidence of the witnesses on the part of the petitioner was concluded on
28.01.2016, the matter was fixed for examination of the witnesses of the respondent on 01.02.2016 on which date, the
learned Senior Counsel for the petitioner submitted that he had filed two (2) Misc. applications, one with the prayer to
place on record a video recording of the scrutiny of nomination paper for the General Election of 2012 for the purpose of
confronting the witnesses during cross-examination and another application seeking amendment of the
election petition. Accordingly, these applications were directed to be listed on 8.02.2016 for consideration. The
application which was registered as MC (EP) No. 2 of 2016 sought for amendment of the election petition by
inserting new paragraphs to bring on record that during the pendency of the election petition, the election petitioner was
expelled from the NCP by an order dated 23.12.2013 issued by the President, NCP, Manipur State on the ground that he
failed to submit explanation on the show cause notice. It is stated that that in response to the said order, the
petitioner submitted a representation dated 21.12.2013 to the President, NCP, Manipur State praying for cancellation/
vacation of the expulsion order, but the matter was kept pending without any reply. It has been also stated that the
petitioner submitted an enrolment application to the BJP, Manipur State during the year 2015 which, however, was
rejected and turned down by the BJP, Manipur State vide order dated 18.01.2016. It has been further stated that the
NCP, Manipur State considered the representation dated 21.12.2013 of the petitioner and issued an order only on
21.01.2016 to the effect that the earlier order dated 13.12.2013 regarding expulsion of P. Saratchandra Singh (the
petitioner) from the NCP stands revoked and his membership of the NCP was restored with immediate effect. This
application was objected to by the respondent on the ground that the same has been filed to rectify his statement
made before this Court and such proposed amendment will cause prejudice to the respondent. When the matter was
taken up on 8.02.2016, the said applications were not moved and the respondent was examined as DW 1 and cross
examined. As the cross examination of DW 1 could not be concluded the matter was further deferred to 16.02.2016.
314 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
Thereafter, recording of evidence on the part of the respondent was concluded on 19.02.2016 on which date
counsel for both the parties prayed that hearing/final argument may be fixed on 22.02.2016. Accordingly, the parties
were heard on 22.02.2016, 23.02.2016, 24.02.2016 and 25.02.2016 when the arguments from both the sides were
concluded. At the time of conclusion of the argument, learned counsel for both the parties submitted that all
the Misc. applications pending before this Court may be disposed of on the basis of the existing materials and
submissions made. Therefore, the evidence on record remains that the petitioner had resigned from the NCP in the
later part of 2013 and joined BJP and he continues to be a member of the BJP since then. The aforesaid application
filed by the election petitioner to show that he has now been readmitted to NCP has been pooh-poohed by the
respondent contending that it was a desperate attempt by the petitioner as an afterthought to change his version
regarding his status of the membership of the political party at present. Since the respondent had categorically objected
to this application, the question of considering the proposed amendment and also considering documents
annexed thereto will not be permissible at this stage, for allowing amendment of the election petition at this stage
after conclusion of the hearing will not only delay the whole proceeding but also entail further recording of evidence
for proving the documents annexed thereto inasmuch as none of the documents sought to be relied are certified
copies of public documents and these are all private documents which would require to be proved unless admitted
by the other party. It may be also noted that there is substantial variation on the nature of relinquishment of membership
of the NCP. In the documents sought to be relied upon by the petitioner it has been mentioned that the petitioner
had been earlier expelled from the NCP whereas in the testimony of the petitioner before the Court he had stated
that he had resigned from the NCP. Expulsion and resignation are two altogether different method of cessation of
membership of a party. Be that as it may, this Court is not considering these documents for the reasons stated. Further,
there is already a direction from the Hon’ble Supreme Court to conclude the trial by the end of February, 2016.
Therefore, this Court is not inclined to consider the documents filed along with the application for amendment of the
election petition. Accordingly, this Court would hold, on the basis of the evidence on record, that the election
petitioner had voluntarily given up his membership from the NCP by resigning sometime in the later part of 2013
and joined the BJP in the concluding part of 2013 and he continues to be a member of the BJP. If that is so, a person
who is no more in the NCP, which had nominated him to contest election cannot be declared elected as a NCP
candidate. If the prayer of the petitioner for declaring him elected as a NCP candidate is to be allowed on the ground
that the election of the respondent is void, it would effectively mean that the petitioner would be declared the elected
candidate from the 27th Moirang Constituency as a candidate from the NCP which he cannot represent now as he
had already resigned from the said party and is presently a member of the BJP Manipur State. Thus, if the
petitioner is to be declared elected now, he would be elected as a member of the BJP, though he was
nominated by the NCP as its candidate. Therefore, grant of such a relief would lead to an anomalous situation which
would be against the spirit of law as expressed in Paragraph No. 2 of the 10th Schedule to the Constitution of India. Even
through the aforesaid Paragraph No. 2 of the 10th Schedule to the Constitution of India may not be strictly
applicable in the present case, the underlying principle behind it to prevent defection and to ensure political fidelity
cannot be ignored at the time of considering this relief when the petitioner had voluntarily given up membership by
resigning from a party (NCP) which had nominated him to contest the election. He will remain a member of BJP
yet get elected as a NCP candidate if this relief claimed under Prayer (b) is granted. Such a situation is never
contemplated under the law.
Accordingly, this Court declines to grant the relief claimed under Prayer (b) of the petition.
74. Accordingly, the petition is disposed of by granting the relief claimed under Prayer (a) and declining the
relief under Prayer (b).
As regards Prayer (c) since this Court has already declared the election of the respondent as void, keeping into
consideration the entire facts and circumstances of the case and also keeping in mind the Paragraph/Direction No. 29.7
of the Hon’ble Supreme Court in Resurgence India (supra), this Court is of the view that it may not be
necessary to issue any direction for initiating any proceeding against the respondent under Section 125-A of the
Representation of People Act, 1951, and in so far as charge under Section 127 of the Act is concerned, no case is
made out for any direction.
Parties are to bear their own costs.
In the result, Issue No.(vi) as regards the reliefs which the petitioner is claiming, are accordingly answered.
75. All the pending miscellaneous applications stand disposed of accordingly in terms of this judgment and order.
76. A copy of this judgment be forwarded to the Election Commission of India for necessary action.
JUDGE
[No.82/MR-LA/2016]
FR/NFR
By Order,
STANDHOPE YUHLUNG, Principal Secy.
¹Hkkx II—[k.M 3(iii)º Hkkjr dk jkti=k % fnlEcj 24] 2016@ ikS"k 3] 1938 315
आदेश
आदेश
आदेश
आदेश
नई दली, 8 दस बर, 2016
आ. अ.
आ. अ.
आ. अ.
आ. अ. 85
85
85
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अिधिनयम, 1951, तथा त!ीन बनाए गए िनयम# के अ$तगत यथाअपेित उ( सारणी के त)भ 5 म अपने नाम के सामने यथाद*शत
अपने िनवाचन ,य का लेखा दािखल करने म िवफल रहा है/रही है;
और यतः, उ( अ य*थय# ने िनवाचन आयोग -ारा स)यक नो0टस दए जाने के बावजूद उ( िवफलता के िलए या तो कोई
कारण या पीकरण नह5 दया है, या उनके -ारा दए गए अ यावेदन, यद कोई ह#, पर िवचार करने के उपरा$त िनवाचन आयोग का
यह समाधान हो गया है क उ( िवफलता के िलए उनके पास कोई उपयु( या $यायोिचत कारण नह5 है;
अतः, अब उ( अिधिनयम क धारा 10क के अनुसरण म, िनवाचन आयोग नीचे क सारणी के तंभ 4 म िविनद ,ि(य# को
संसद के कसी भी सदन या रा य या संघ रा य-े क िवधानसभा अथवा िवधान प0रषद के िलए सदय चुने जाने या होने के िलए इस
आदेश क तारीख से तीन वष क अविध के िलए एत8ारा िनर*हत घोिषत करता हैः-
सारणी
सारणी
सारणी
सारणी
.सं.
.सं.
.सं.
.सं.
िनवा चन
िनवा चन
िनवा चन
िनवा चन का
का
का
का िववरण
िववरण
िववरण
िववरण
लोकसभा
लोकसभा
लोकसभा
लोकसभा िनवा चन
िनवा चन
िनवा चन
िनवा चन े
े
े
े क
क
क
क म
म
म
म
सं.
सं.
सं.
सं. व नाम
नाम
नाम
नाम
िनवा चन
िनवा चन
िनवा चन
िनवा चन लड़ने
लड़ने
लड़ने
लड़ने वाले
वाले
वाले
वाले अयथ
अयथ
अयथ
अयथ का
का
का
का
नाम
नाम
नाम
नाम तथा
तथा
तथा
तथा पता
पता
पता
पता
िनरह ता का
िनरह ता का
िनरह ता का
िनरह ता का कारण
कारण
कारण
कारण
(1)
(1)
(1)
(1)
(2)
(2)
(2)
(2)
(3)
(3)
(3)
(3)
(4)
(4)
(4)
(4)
(5)
(5)
(5)
(5)
1.
असम रा य से
लोकसभा के िलए
साधारण िनवाचन,
2014
07-गौहाटी संसदीय िनवाचन
े
;ी बेनेिड>ट आलोक आरग,
Aाम-कननगांव, डाकघर-
कननगांव, िजला-कामDप, िपन-
781123, असम
िनवाचन ,य का लेखा िविध
-ारा अपेित रीित से दािखल
करने म असफल रहे।
2.
असम रा य से
लोकसभा के िलए
साधारण
िनवाचन,2014
07-गौहाटी संसदीय िनवाचन
े
;ी ांजल,बोरडोलोय, Lलैट
संNया- ख, उवशी 0रपे0रयन
अपाटमट, हातीिशला, खारघुली,
गौहाटी-4, असम
िनवाचन ,य का लेखा
िविध -ारा अपेित रीित से
दािखल करने म असफल रहे।
[सं.76/असम-लो.स./2014]
आदेश से,
नरे$O नाथ बुटोिलया,सिचव
ORDER
New Delhi, the 8th December, 2016
O. N. 85.—Whereas, the Election Commission of India is satisfied that each of the contesting candidates
specified in column 4 of the Table below at the General Election to the Lok Sabha, 2014, in the Assam State 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 Rules made
thereunder;
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 or 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
316 THE GAZETTE OF INDIA : DECEMBER 24, 2016/PAUSA 3, 1938 [PART II—SEC. 3(iii)]
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:
TABLE
SL.
No.
Particulars of Election
No. & Name of
Parliamentary
Constituency
Name & Address of
Contesting Candidate
Reasons for
Disqualification
(1)
(2)
(3)
(4)
(5)
1.
General Election to the
Lok Sabha 2014 from
the state of Assam.
07-Gauhati PC
Shri Benedict Alok Areng, Vill.-
Kinangaon, P.O. Kinangaon
Distt. Kamrup, Pin-781123,
Assam.
.
Failed
to
lodge
accounts of election
expenses
in
the
manner required by
law.
2.
General Election to the
Lok Sabha 2014 from
the state of Assam.
07-Gauhati PC
Shri Pranjal Bordoloy, Flat No.
Kha,
Urvashi
Riperean
Apartment,Hatishila, Kharghuli,
Ghy-4,
Assam
Failed
to
lodge
accounts of election
expenses
in
the
manner required by
law.
[No.76/AS-HP/2014]
By Order,
NARENDRA NATH BUTOLIA, Secy.
.
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.
ALOK KUMAR
Digitally signed by ALOK
KUMAR
Date: 2017.01.18 16:02:20
+05'30'